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In America鈥檚 culture war, state legislatures lead the charge

Lawmakers in red states across the US are crafting bills that restrict abortion and provide protections for religious freedom. The trend suggests that state legislatures are pushing for 'traditional values' victories, even if they are short-lived, analysts say. 

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Sue Ogrocki/AP
Republican Gov. Mary Fallin walks on the floor of the Oklahoma House in Oklahoma City May 18. Governor Fallin vetoed a bill that would have made it a felony for a doctor to perform an abortion.

The culture war in American state legislatures is increasingly pushing into new territory.

Lawmakers have routinely pushed the frontiers of the law to advocate their party's positions. But more are blowing past constitutional concerns to make a bold statement. These laws are unlikely to remain on the books, legal experts say, but many conservative lawmakers see them as a victory 鈥 no matter how temporary or how much they cost the state in legal bills.

On Thursday, the Louisiana Senate voted in favor of a bill that would ban abortions performed because the fetus was diagnosed with a genetic abnormality. The move makes Louisiana the latest politically conservative "red" state to pass or consider a law that may be constitutionally questionable in an effort to safeguard values of the right.

The trend has emerged largely as an onslaught of laws that restrict abortion on the basis of medical grounds, or that potentially allow groups and individuals to prevent LGBT persons from accessing certain public services on the basis of religious convictions.

In some cases 鈥 such as in Oklahoma and Georgia 鈥 governors have struck down such bills over doubts about their constitutionality and intention. Other states 鈥 like North Carolina and Mississippi 鈥 have followed through, suggesting that hardcore social conservatives see state legislatures as key to stemming what they view as the erosion of traditional values, sociologists and political scientists say.

鈥淚 think the right-wing culture warriors fear that the tide is running against them nationally. They don鈥檛 think they can entirely rely on the Supreme Court, at least not for long,鈥 writes Todd Gitlin, a sociologist and Columbia University professor who has authored multiple books on American cultural history, in an e-mail.

鈥淭hey鈥檙e often strong in local legislatures and they like to have victories,鈥 he continues. 鈥淸T]hey're having enough success in the South and prairie states to encourage them to greater feats of legislation 鈥 at least in the short run.鈥

In the wake of the 2015 Supreme Court decision to legalize same-sex marriage, a flurry of red states rushed to pass laws that they said would protect those whose religious convictions prevented them from participating in the practice.

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In 2016 alone, state legislatures nationwide introduced that advocates regard as anti-LGBT, the Human Rights Campaign reports.

These include that would allow campus religious groups to confine their membership to students that observe a religion鈥檚 tenets; a Tennessee law that would protect mental health workers who turn away patients on the basis of their religious and moral principles; and a sweeping Mississippi religious freedom bill that allows private and public businesses to withhold service from LGBT individuals if doing so contradicted their 鈥渟incerely held鈥 religious beliefs.

While LGBT advocates are concerned that those laws are written broadly enough to be applied to deny a range of services, conservative analysts say there is a crucial difference for most conservatives: 鈥淭hey make a distinction between serving someone a pizza and participating in someone鈥檚 marriage,鈥 says Joseph Knippenberg, a professor of politics at Oglethorpe University in Atlanta, Ga. 鈥淭here are very few people who think that they are entitled to refuse service to someone because of his or her sexual orientation.鈥

Indeed, public opinion 鈥 at least when it comes to gender and marriage equality 鈥 has swung firmly in favor of LGBT-rights advocates. now say marriages between same-sex couples should be recognized as valid under the law, according to Gallup 鈥 up six percentage points from the month immediately following the high court鈥檚 decision.

鈥淭here鈥檚 no question that the numbers on the traditional marriage side have dwindled and those on pro same-sex marriage side have prospered,鈥 Professor Knippenberg says. 鈥淲ith abortion, it鈥檚 much less clear.鈥

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Unlike religious freedom laws, which tend to focus on personal religious and moral beliefs, the abortion restriction laws have taken on a more scientific tone. In red states across the nation, lawmakers have passed bills that adopt medical language 鈥 even as many medical ethicists and professionals challenge the claims behind the laws and say the effect is to make the procedure less safe for women.

Conservatives legislators see an opening: The push stems in part from the ambivalence of public opinion around abortion, Knippenberg says. Though 50 percent of Americans say they favor abortion rights, only say the practice should be legal under any circumstances, Gallup reports.

Moreover, conservatives have over the decades maintained a steady resistance to the 1973 Supreme Court ruling that recognized the constitutional right to an abortion. Add to that the robust campaign against late-term abortions over the past decade; the 2013 conviction of former abortion provider Kermit Gosnell on charges of first-degree murder; and the recent controversy over the discredited Planned Parenthood videos. The latter resulted in grand jury charges against the covert videos' antiabortion creators. But overall, it adds up to a climate that would embolden antiabortion groups to advocate their cause, Knippenberg says.

鈥淚 think there鈥檚 a sense that you can chip away at Roe v. Wade right now and attempt to extend these kinds of restrictions on abortion. It鈥檚 politically less of a losing proposition鈥 than opposing gay marriage, he says.

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The trouble with a purely legislative approach to fighting a culture war is that it鈥檚 easy to tread on shaky legal ground.

鈥淭hey're painting themselves into a corner,鈥 writes Professor Gitlin at Columbia of conservative legislators. 鈥淭he hard core of them believe in staking out their ground and are largely indifferent to the practical consequences.鈥

Republicans in some states have tried to prevent a descent into what they consider unconstitutionality. In May, Oklahoma Gov. Mary Fallin vetoed a bill that would make performing an abortion in that state a felony, saying the proposal鈥檚 language was 鈥渧ague, indefinite and vulnerable to subjective interpretation and application.鈥

And in Louisiana, Republican Sen. Dan Claitor 鈥 who often supports abortion restrictions 鈥 voted against his fellow lawmakers鈥 proposal, insisting the bill had no legal ground to stand on.

鈥淲hy would you put me in a box to make a choice between supporting my oath to uphold the [C]onstitution ... and being pro-life?鈥 Senator Claitor said to the Associated Press. 鈥淭he bill as written, in my view, is patently unconstitutional.鈥

Which is why Knippenberg says that social conservatives 鈥 with whom he identifies 鈥 have to continue to make the case for themselves on more than just one front. Some are already doing that, he says, opting to homeschool their children or expose them to the kinds of experiences and values that they feel are in line with their own.

But there鈥檚 more to be done, he says.

鈥淲here you have to do the persuading is not so much in the political arena but in the education and culture arena,鈥 Knippenberg says. 鈥淵ou have to have people who write the books, teach the children, make the movies who are making a winsome and persuasive case for 鈥榯raditional moral values.鈥

鈥淲inning a political battle now and not attending to issues of education and culture formation,鈥 he says, 鈥渨ould be a huge mistake.鈥

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