Wave of new state bills: Religious freedom or license to discriminate?

In response to legalization of same-sex marriage, many states aim to broaden exemptions for providing services

Religious conservatives say same-sex marriage is forcing their religious beliefs into hiding.
Jay Paul/Getty Images

If a bill approved by the Kansas House Committee on Federal and State Affairs Thursday becomes law, businesses and government employees could legally refuse service to citizens because of their sexual orientation or marital status, claiming it violates their religious beliefs.

HB 2453, if passed, would permit “any individual or religious entity” to claim an exemption, based on religious views, from providing nearly any kind of services, and to be relieved from “treat(ing) any marriage, domestic partnership, civil union, or similar arrangement as valid.” Although the bill would require government agencies to make another employee available to provide the service if one employee objects, opponents of the bill say that arrangement could prove unworkable in small locales.

The Kansas measure is an extreme permutation of a wave of new bills in state legislatures that purport to bolster religious freedom, but that opponents say constitute a troubling new trend to craft a license to discriminate based on sexual orientation, gender identity, and marital or family status. The state efforts are apparently connected to a network with the Christian advocacy group Focus on the Family at its core.

“We are really seeing this dovetailing with LGBT people across the country gaining greater rights,” said Eunice Rho, advocacy and policy counsel at the American Civil Liberties Union, which opposes these bills. “We are now seeing this reaction where people are claiming based on religious belief that there should be special authorization to break laws or have new rights.”

The Kansas bill, said Thomas Witt, executive director of the LGBT rights group Equality Kansas, is based on widely circulated “horror stories about lawsuits over wedding cakes.” He was referring to cases, such as one decided by the New Mexico Supreme Court last year, stemming from business-owner refusals to serve gay or lesbian customers.

In the New Mexico case, a photographer refused to provide services for a lesbian commitment ceremony. The couple sued under the state’s anti-discrimination law and won, because New Mexico prohibits discrimination in public accommodations on the basis of sexual orientation.

Kansas, Witt noted, does not outlaw discrimination based on sexual orientation or gender identity. Thus, “we have no legal recourse,” unlike the couple in New Mexico. ”People already have the right to turn us away,” he said.

But conservative legislators are also reacting to the possibility of same-sex marriage bans being struck down, as federal cases decided in Utah and Oklahoma move through the courts — and Witt said the Kansas bill would give government employees the right to refuse service even if same-sex marriage were legal in the state.

The Kansas Family Policy Council, a Christian conservative group in favor of the bill, said in an alert to its members that the bill “would extend important legal protections to individuals, business owners and religious institutions when it comes to their rights to stand on their religious views when declining to participate in and celebrate homosexual ‘weddings.’”

In testimony supporting HB 2453, Robert Noland, executive director of the Kansas Family Policy Council, said, “The relatively recent developments in the area of homosexual marriage (the past 12 years or so) have quite literally turned thousands of years of religious and social mores on their heads.”

He did not respond to a request for comment.

Changing tactics

Religious freedom statutes have their origins in the aftermath of the Supreme Court’s 1990 decision in Employment Division v. Smith, in which the court held that a law of general applicability — one prohibiting drug use — did not violate the free-exercise rights of Native Americans who used peyote as part of a religious ceremony, and who were denied unemployment compensation after being fired from their jobs.

Concerned that this precedent would unduly infringe on religious liberty, in 1993 Congress passed the Religious Freedom Restoration Act — the same statute at issue in cases now before the Supreme Court challenging the constitutionality of the contraception mandate under the Affordable Care Act — with broad bipartisan support.

After the Supreme Court ruled in 1997 that this federal statute could not be used to compel compliance by the states, many states passed their own Religious Freedom Restoration Acts, or “mini-RFRAs,” with language identical to the federal statute. Today 18 states, including Kansas, have a RFRA.

These mini-RFRAs, said Caroline Mala Corbin, a professor at the University of Miami School of Law, were “perfectly constitutional.” Under the federal RFRA, the plaintiff must prove that the law or state action in question imposes a “substantial burden” on religious exercise. But two states, Connecticut and Alabama, have replaced that test with merely a “burden” standard, and others are attempting such a change.

That’s problematic, Corbin said, because “it’s one thing to exempt people from a law that imposes a religious hardship” but “it’s quite another when it’s just a minor inconvenience.”

By taking out the “substantial” requirement, said Maggie Garrett, legislative counsel for Americans United for the Separation of Church and State, these states are “making a completely different test,” as RFRA “was never meant to trump anti-discrimination and health and safety laws.”

In addition to taking the word “substantial” out of the statute, new proposals, including those in Idaho, Arizona, Ohio and Mississippi, would allow a twist not permitted under the federal RFRA or any of the original mini-RFRAs: suits against private parties, as opposed to the government, or as a defense in a suit brought by a private party.

In addition, a bill moving through the Arizona Senate specifically identifies corporations as parties with religious freedom to be protected — one of the issues the Supreme Court has been asked to take up in cases brought by Hobby Lobby and Conestoga Wood in their challenges to the contraception coverage.

Julie Lynde, executive director of Cornerstone Family Council in Idaho, said, “A lot of these battles across the country have been caused by homosexual issues.”

She added, “The government is now saying, ‘You can worship, just keep it in your house and in your church. Don’t pollute the public square with your faith.’ And that’s not at all what the founders intended.”

Nationwide network

Cornerstone in Idaho, the Kansas Family Policy Council, and the Center for Arizona Policy, which supports the bill there, are all part of a network of 38 state “family policy councils” pressing for these laws under the umbrella of Citizen Link, the advocacy arm of the conservative Christian powerhouse Focus on the Family. Citizen Link says its aim is to “help citizens understand and passionately engage in policy issues relevant to families from a foundation firmly established in a biblical worldview.”

Tom Minnery, executive director of Citizen Link, declined a request for an interview.

Lynde said, “We are not following a template” but “we’ve been involved in working on the language” of two religious-freedom bills in Idaho.

The Ethics and Public Policy Center, a Washington-based conservative think tank, in 2012 created the American Religious Freedom Project (ARFP), with a goal of 50 religious-freedom caucuses in state legislatures. Today, there are 18, in Arizona, Colorado, Delaware, Florida, Georgia, Idaho, Kansas, Maryland, Michigan, Missouri, Nevada, New Hampshire, Ohio, Oklahoma, South Carolina, Tennessee, Texas and West Virginia.

“There are a lot of organizations that work with people who are interested,” Brian Walsh, executive director of the ARFP, said. “If we have a state legislator who is interested in a specific RFRA or a specific question, we, like a lot of other organizations, would help them.”

The project’s state legislative policy director, Tim Schultz, testified in favor of the controversial Kansas bill, as well as one in Nevada last year.

New twists on these themes continue to arise.

One of the bills introduced in Idaho would make it illegal for the state to deny, revoke or suspend someone’s occupational license if she refuses to serve a client, claiming that such service would violate her religious beliefs. Another, introduced in South Dakota, would bar suits against a business for refusing service to customers based on sexual orientation, and declares that if federal legislation passed protecting the employment rights of gay and lesbian people, it would “not apply in South Dakota and may not be enforced within the geographical boundaries of South Dakota.”

Lynde said the Idaho bills are necessary because “we are seeing this clash that is starting to coerce people to not live their religious freedom in the workplace.”

But of this growing number of variations on such bills, Garrett of Americans United said, “It really has no end.”

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