Analysis: Red states are remaking the civil liberties landscape

Further, with GOP senators wielding the filibuster and the Republican-appointed majority on the Supreme Court both providing powerful air cover for this red state ground offensive, Democrats and groups focused on defending civil rights, abortion rights and LGBTQ rights, among other issues, have not yet found any effective means of slowing the conservative onslaught. Even as the nation grows more racially, religiously and culturally diverse than ever, that means roughly half the states are on track to impose rules across this broad array of cultural flashpoints that primarily reflect the demands of one shrinking group: conservative and often older White Christians.

“You have an emerging generation that is multiracial, multicultural, where no single ethnic or racial group is the majority, and it has struck an existential fear within those who are used to controlling everything, from the boardroom to the White House,” says Nadine Smith, executive director of Equality Florida, an LGBTQ advocacy group battling against the “don’t say gay” proposals from Florida Republicans that would severely restrict how teachers can talk about sexual orientation or gender identity in the classroom. “So what we are seeing here is people playing on that fear of that graying generation that votes with regularity and feels as though something is slipping away.”

Conservatives praise the widening divergence among the states on this broad array of issues as a vindication of the belief among the nation’s founders that states should have great leeway to set their own courses — a belief embodied in the 10th Amendment to the Constitution.

“This is going to be a new test of federalism,” Jessica Anderson, executive director of Heritage Action, a conservative group that has promoted some of the conservative state initiatives, told me in a 2021 interview. “But I think it’s a good thing, and it’s largely how the founders envisioned this.”

A wide array of groups that promote civil rights and liberties, however, see the red state moves as a fundamental assault on constitutional rights that should be available nationwide to all Americans.

“We are absolutely seeing what feels like two countries — opposed on so many fundamental questions,” Deborah Archer, a professor at the New York University Law School and president of the American Civil Liberties Union, told me in an email. “That’s the reality we are facing with abortion rights — pregnant people with fundamentally different protection of their Constitutional rights based on geography. That’s the reality we may face with voting rights — Black voters with fundamentally different rights based on geography. That’s the reality we are facing with the censorship of discussions about race in the classroom — children getting wildly different opportunities to learn about the history and reality of racism and racial inequality based on geography.”

The one undisputed point: On a panoramic range of volatile issues revolving around cultural values and racial equity, Republican-controlled states are advancing the most aggressive conservative agenda in memory. In a comment echoed to me by analysts in other states, political scientist Richard Murray, a senior researcher at the Hobby School of Public Affairs at the University of Houston, described last year’s Texas state legislative session as “the most extreme session in modern Texas history. I’ve been here since 1966 and nothing was comparable in all of those years.”

Fronts in the fight

The red state offensive is advancing across a wide range of fronts, including:

Abortion: Anticipating that the Republican-appointed Supreme Court majority later this year will strike down Roe v. Wade, the 1973 decision establishing a nationwide right to abortion, GOP-controlled states are approving a raft of new restrictions on the procedure. Seven states in 2021 passed laws retrenching access to abortion, according to the Guttmacher Institute; that list included total bans that Texas and Oklahoma approved to go into effect if the high court allows. Texas also passed its separate law banning abortion after the detection of a fetal heartbeat, usually around six weeks of pregnancy, and empowering citizens to sue anyone involved in providing one; five GOP-appointed Supreme Court justices, over the vehement objections of Chief Justice John Roberts and the three Democratic appointees, have refused to block implementation of that law while lower courts debate its constitutionality.

In all, Guttmacher calculated, states approved 108 abortion restrictions of some sort in 2021 (such as constraints on access to abortion medication). The group says that’s by far the most that have been approved in any single year since Roe. And the wave has not yet crested: Just this month, GOP-controlled legislatures in Florida, West Virginia and Arizona, anticipating that the GOP Supreme Court majority will overturn Roe, have advanced bills to ban abortion after 15 weeks.

Voting: Laws making it more difficult to vote, and in several cases increasing the opportunity for Republican partisans to exert more influence over election administration and vote tabulation, have been probably the most visible component of the red state push. In 2021, 19 states — including Arizona, Florida, Georgia, Iowa, Montana and Texas — passed a total of 34 laws restricting access to voting, according to tabulations by the Brennan Center for Justice at the NYU Law School. The center counts 250 bills to further restrict voting access that have been introduced this year or carried over from last year’s session and another 41 that could erode the integrity of election administration. Meanwhile, the new voter identification requirements in Texas have resulted in the rejection of so many mail ballots that local Democratic officials in Harris County have asked the US Justice Department to intervene.

Education: Nothing has spread more rapidly across the red states than the laws — dubbed “gag orders” by critics — restricting how public school K-12 teachers can talk about current and historic racial and gender inequities. In 2021, nine Republican-controlled states passed laws establishing such restrictions and four others imposed them through executive branch actions. This year, according to PEN America, a free-speech group founded by prominent authors, 112 similar bills have been introduced in 34 states.

Variations on the theme are multiplying: Virginia’s newly elected Republican Gov. Glenn Youngkin, for instance, has created a “tip line” that residents can use to complain about teachers discussing supposedly “divisive” concepts. Iowa’s Republican-controlled legislature is considering legislation to install cameras in every classroom so that parents or others can monitor what teachers are saying.

This push to control what students are taught is also broadening in several ways. On one front, more of the red state bills would impose restrictions not only on K-12 teachers, but also on professors in public colleges and universities; PEN counts 48 such bills pending. Last week, Texas’ Republican Lt. Gov. Dan Patrick, the leader of the state’s social conservatives, said he will push legislation to both end tenure for new hires at the University of Texas and make it easier to revoke tenure for professors who teach critical race theory, an academic analysis that explores structural racism.

On another front, Republican-controlled states are pushing beyond race and gender inequities to advance legislation that limits how public schools discuss sexual orientation and gender identity or bars it completely for younger students. The most prominent of these bills — the Florida legislation that critics have dubbed the “don’t say gay” bill — could receive approval from the full state House of Representatives this week, with the enthusiastic support of Republican Gov. Ron DeSantis. In all, nine states are considering 15 similar bills, according to PEN America.

On yet another front, more states and local school districts are banning books, including many by authors who are racial minorities or who identify as LGBTQ: The American Library Association told me in an email that its Office for Intellectual Freedom has received more than 330 reports of attempted book bans from just September through November 2021. Finally, several of the red state education proposals borrow from the new Texas abortion statute and empower private citizens to sue schools or school districts if they object to how teachers discuss the restricted topics.

LGBTQ rights: The Human Rights Campaign, a group that advocates for the LGBTQ community, says 10 states in 2021 adopted 26 bills restricting their rights. One of the most common themes has been legislation prohibiting transgender girls and women from participating in high school and often college-level sports; among the eight states that approved such bans in 2021 were Arkansas, Florida, Montana, Tennessee, Texas and West Virginia. In Republican-controlled states, this wave also shows no sign of cresting: South Dakota recently approved its own ban, proposals are advancing in Kentucky and Utah, and the Human Rights Campaign counts 56 sports bans pending across the states.

On a parallel track, Tennessee last year approved legislation requiring students to use the bathrooms for their genders at birth, and Arkansas’ GOP-controlled legislature overrode a veto from Republican Gov. Asa Hutchinson to approve the nation’s first law prohibiting gender-affirming medical care for transgender people below age 18; Tennessee also approved such a ban. Texas’ GOP Attorney General Ken Paxton issued an opinion last Friday that such treatments constituted “child abuse” under Texas law.

Protest rights: In the aftermath of 2020’s massive Black Lives Matter demonstrations, multiple Republican-controlled states — including Florida, Iowa, Oklahoma, Tennessee and Texas — have approved laws stiffening penalties on protesters accused of damaging property. In a few cases, red states have also approved laws immunizing drivers who run over protesters if they are caught in demonstrations. The International Center for Not-for-Profit Law, which tracks these proposals, counts more than a dozen that have been approved since 2020, with 17 more pending this year, preponderantly in Republican-controlled states.

Gun rights: In sharp contrast to the laws limiting rights across all the arenas discussed above, red states are rushing to loosen restrictions on gun owners. In 2021, five Republican-controlled states, including Montana, Tennessee and Texas, eliminated requirements for gun owners to receive permits or undergo training before being allowed to carry concealed handguns — or in some cases before being allowed to openly carry weapons, according to tracking by Everytown for Gun Safety, a gun control group. This year the group says seven more Republican-controlled states are moving to eliminate such requirements; three of them (Georgia, Indiana and South Carolina) would allow the open carrying of handguns without any training or permitting.

The sweep of this challenge has left civil rights and liberties groups gasping. “What is disturbing is how … many of the legal protections are falling at the same time,” says Archer, the ACLU president. “We have seen the protection of our civil rights and civil liberties being chipped away, death by a thousand cuts. Today, we are seeing more protections torn down all at once.”

Democrats in Washington have found no effective response. The House has passed legislation to reverse many of the state voting restrictions and to codify the national right to abortion, but a Republican Senate filibuster blocked the former last month and is expected to similarly doom the latter next week.

Neither the Biden administration nor congressional Democrats have focused much attention on the other state restrictions (particularly the educational “gag orders”), much less devised an approach to resist them. While the red state offensive has advanced, Democrats have been much more consumed by the critique from party centrists that liberals are pushing excessively “woke” policies on public safety and schooling.

Why this is happening, and why now

Multiple factors probably explain why Republican-controlled states are simultaneously moving so quickly across so many fronts. Anderson, from Heritage Action, says a key factor is that conservative activists have shifted their attention more to state and local governments. That shift has occurred, she says, both because they realize they have few opportunities to advance their priorities at the national level while Democrats control the White House and Congress and also because the Covid-19 crisis made them realize that local decisions “probably impact their day-to-day [life] more than even federal.”

Bill Miller, a lobbyist and political consultant who has worked for both parties in Texas, says the hard push from social conservatives there reflects a long-gestating backlash on the right to the left’s efforts to advance socially liberal causes, such as more explicit discussion of racial issues in the schools.

“The left with their defund the police, the mask mandate in schools and all that kind of stuff opened the door,” he says in a view echoed by Anderson. “People got tired of it. They got sick of it, and they are fighting back. They are not sitting back and just saying no. They are organizing and … they are pushing back aggressively. They feel it’s been in their face, so [if it’s] ‘good for the goose, good for the gander.’ “

Others see the key factor as the shifting internal dynamics of the Republican coalition. Particularly in the Trump era, the GOP has become more dominant among the White voters who are the most uneasy about cultural and demographic change. Those voters, energized by Trump, are creating enormous demand in the party for hardline policies on race and culture.

The widespread gerrymandering of state legislative disticts, experts say, has magnified the influence of those voters because it means that almost all GOP lawmakers are running in staunchly conservative districts where they face more risk of losing primaries to opponents on their right than they do of losing general elections to opponents on their left. Murray, the Texas political scientist, says Republican primaries there typically attract only about one-fourth as many voters as the party wins in presidential general elections and those who do turn out “are disproportionately the cultural warriors.”

Other institutional factors have propelled the rapid dispersion of these ideas across red states. Conservative groups like the American Legislative Exchange Council and Heritage Action energetically encourage Republican legislators to adopt many of these proposals; Heritage, for instance, recently issued a strategy memo urging red state legislatures “to embrace the culture war” over the teaching of race and sexual orientation as a means of building support for vouchers that would provide parents public funds to send their kids to private schools, a perennial goal on the right.

The increasing reliance of right-leaning voters on explicitly conservative media sources that relentlessly stoke cultural and racial grievance, from Fox to talk radio, also provides a powerful transmission belt.

“The nationalization of media, aided by social media and the internet, is part of the story,” says Jake Grumbach, a political scientist at the University of Washington and author of an upcoming book on the polarization of state policy. “This kind of environment means that agendas can be set, with similar talking points and framing, across states very quickly.”

Another factor has been the indications from the Republican majority on the Supreme Court that it is unlikely to resist many of these red state initiatives. The red states “feel completely emboldened by the Supreme Court,” says Jessica Post, president of the Democratic Legislative Campaign Committee, which focuses on state legislative races. In particular, she believes, the court’s “lack of action on the Texas case” authorizing private lawsuits against abortions “lit a wildfire of socially conservative legislation.”

Also critical, many analysts say, is the erosion of resistance from business groups. Under pressure from employees and consumers, business groups often pushed back forcefully during the early stages of this wave — for instance, with boycotts of North Carolina after Republicans there passed the original “bathroom bill” for transgender individuals in 2016.

But apart from modest public criticism of some of the voting laws, business has mostly stood to the side amid this new spasm of socially conservative legislation — even, critics note, when the bills directly contradict their public claims to support LGBTQ rights or racial equity. The journalist and activist Judd Legum, for instance, has documented that multiple companies that publicly proclaim their support for LGBTQ rights are heavily contributing to the Florida Republican legislators pushing the “don’t say gay” bill.

“There is definitely a difference between action and words,” says Democratic Texas state Rep. Trey Martinez Fischer. “Lamenting the state of affairs in the Republican Party at a cocktail reception is not the necessary action that we need. … These folks are hoping they will wake up from this bad dream, but the better medicine is for them to pinch themselves that they are not dreaming.”

Republicans in these states also may have been emboldened because Democrats, after making gains in 2018, failed to flip any of the state legislative chambers they targeted in 2020. Now Republicans have been able to fortify their legislative majorities in many states with strong gerrymanders, while Democrats face the headwind of diminished approval ratings for President Joe Biden even among the suburban voters who powered their state-level wins during the Trump years.

Like many red state GOP strategists, Austin-based Republican consultant Matt Mackowiak says, “I do not expect to see a suburban revolt due to the legislature’s [social issue] priorities.” He predicts that Republicans will actually gain in those areas “due to parental anger at school and Covid overreach.”

But perhaps the most powerful reason for this surge of culturally conservative legislation is the force and immediacy of the wave it seeks to counter. The evidence of irreversible demographic and cultural change continues to accumulate: The 2020 census, for the first time, recorded that kids of color now constitute a majority of the nation’s under-18 population; Gallup recently reported that a stunning one-fifth of Generation Z (as well as about 1 in 10 millennials) identifies as LGBTQ; and the latest figures from the Public Religion Research Institute show that White Christians, long the nation’s majority, now compose only a little more than two-fifths of the population.

All of that, critics argue, has created a sense of urgency for GOP state legislators responding to voters in their coalition uneasy about the “more diverse” future “that is around the corner,” as Martinez Fischer puts it. An America in which no single group makes up a majority “is arriving, and so there’s only two paths,” says Smith of Equality Florida. “One is division, chaos, suppression, censorship, surveillance and anti-immigrant sentiment. The alternative is a [way] forward, where regardless of race, gender or sexual orientation, there is a path here for everyone.”

The striking implication of the GOP’s ongoing revolution from below is that the coming decade may see the nation’s 50 states diverge between those two paths more than they have at any point since the Supreme Court and Congress began nationalizing more civil rights and liberties over half a century ago.