What’s happening with all of these so-called religious freedom bills and laws? The news has been filled with reports of statutes with innocuous titles like the Free Exercise Protection Act and the First Amendment Defense Act, being enacted to shield business owners and public officials from liability for discriminating against LGBT individuals. We see protests in the streets by human rights and civil liberties groups, and read of calls by businesses large and small to shelve, pull back or repeal these measures. Beginning with those states we’ve been hearing about the most for the last few weeks, what follows is an overview of pending and recently enacted legislation that deals directly with discrimination against LGBT persons.
The Law: In what might be a record for legislative action, North Carolina’s discrimination shield law was proposed, debated, approved and signed by Governor McCrory all within twelve hours in late March. The law went into effect on April 1. This law invalidates all existing state and local ordinances prohibiting discrimination against individuals based upon sexual orientation or gender identity in North Carolina. It also prohibits any other anti-discrimination measures under consideration from being enacted. North Carolina’s law is also known as a “bathroom law” because it requires that all individuals use the restroom that corresponds to the gender listed on their birth certificate. Transgender persons are prohibited from using the restroom that matches their gender identity. All bathrooms operated by state agencies, including government offices and public colleges and universities, must be single-sex bathrooms. Multi-sex bathrooms are no longer allowed.
The Response: Human rights and civil liberties groups are protesting the law as unconstitutional. The Governors of New York, Washington, Vermont and Minnesota have all announced a ban on all non-essential travel to North Carolina. Certain federal agencies are investigating whether the billions of dollars in aid they send to North Carolina can be eliminated or curtailed in order to avoid having federal tax dollars allocated in the furtherance of a discriminatory law. Over one hundred companies signed a letter to Governor McCrory protesting the law as discriminatory and strongly arguing for its repeal. The NBA has said it will consider moving its All-Star Game to another state. A major pharmaceutical manufacturer from New Jersey, which had planned locate a factory in North Carolina has announced it is reconsidering its choice. And PayPal, which had just announced last month that it would establish a global operations center bringing hundreds of jobs and tens of millions of dollars to the state economy, issued a statement on April 5, that it had cancelled its plans to move to North Carolina because “the new law perpetuates discrimination and violates [PayPals’s core] values and principles.”
The Law: On April 5, Governor Phil Bryant signed the most far-reaching of the new laws. In that state, any business that provides any service that might be used for or related to weddings or other celebrations (normally considered businesses of public accommodation required to serve all potential customers) may now refuse to serve or do business with same sex couples or any LGBT individual without legal repercussions which would otherwise result from discriminating against people based upon sexual orientation or gender identity. As long as an individual or business claims that it would violate their sincerely held religious beliefs to provide services to or do business with LGBT individuals, the business can deny services to those persons without legal penalty. In fact, the law makes it illegal to enforce anti-discrimination laws against those who object to them on religious grounds. Other lifestyles that can provide a basis for denial of goods and services include sexual conduct outside of marriage, and divorce. The services which may be denied include housing, accommodations, and creative services (flowers, cakes). Public officials who are authorized to perform weddings may opt out without penalty, and those officials charged with issuing marriage licenses may refuse to do so. Religiously affiliated, state licensed social service agencies may refuse to consider individuals for adoptions and foster care assignments. Those state-licensed, religious agencies may also deny counseling services and certain types of medical care to LGBT individuals. Anyone attempting to challenge a business that refuses service can be sued by the business owner for attempting to infringe upon that business owner’s religious beliefs.
The Response: Condemnation from human rights and civil liberties groups has been widespread. The business community, including the Mississippi State Chamber of Commerce, the Mississippi Manufacturer’s Association, along with major corporations operating in the state such as Nissan, Chevron, MGM Resorts, and Entergy, urged the governor not to sign it, and are now pressuring legislators to reverse themselves.
The Law: Georgia’s bill contained elements of North Carolina’s and Mississippi’s laws, but it was vetoed by Governor Deal in late March. In doing so, he acknowledged that it was discriminatory, and that, in his view, faith did not require discrimination for protection.
The Response: Human rights groups applauded, and the business community which had exerted pressure on the governor to veto the measure, and included the NFL (threatening to take away the state’s Super Bowl bid for 2020), Coca Cola, The Walt Disney Company, and Marvel Entertainment, were relieved that the state had not codified discrimination thus forcing them into deciding whether or not to continue to do business there. The Republican-dominated legislature and Conservative Christian religious groups were outraged. Given that governor Deal is in his last term, it is entirely foreseeable that the legislature will try again under a new Republican administration.
Arkansas: They would have passed a law expressly allowing discrimination against LGBT individuals based upon religious beliefs, but, under pressure from the business community, they essentially passed a state RFRA (which, as with all RFRAs unless they state otherwise, can be read to implicitly allow discrimination based upon religious beliefs).
Florida: Florida allows clergy to refuse to perform marriages and houses of worship to refuse to host weddings based upon their religious beliefs. It’s worth noting that the clergy and houses of worship already have these protections under the Free Exercise Clause of the US Constitution.
Indiana: Indiana attempted to pass a strong shield law that would have protected the ability of businesses to discriminate based upon religious beliefs, but the national outcry and massive campaign against the law by the Indiana business community resulted in a state RFRA that expressly prohibits using the law to allow discrimination in providing services and public accommodation.
Kansas: Effective July 1, religious student groups at public colleges and universities in Kansas will be allowed to discriminate against LGBT students in membership and leadership decisions. Groups that claim a sincere religious belief as the basis for excluding LGBT individuals cannot have their student activity funding eliminated or reduced even if their policies violate a school’s anti-discrimination policy.
Kentucky: A bill is pending which expands the state’s Religious Freedom Restoration Act (RFRA) to allow individuals and businesses engaged in creative, artistic or expressive services to refuse those services to same sex couples and LGBT individuals.
Maine: Earlier this week, Maine’s Secretary of State approved the paperwork for a statewide referendum on whether to eliminate anti-discrimination provisions from the state’s Human Rights Act. Spearheaded by a member of the Christian Civic League of Maine, the proposed initiative would delete specific language prohibiting discrimination on the basis of sexual orientation or gender identity which has been a part of the Human Rights Act since 2005. The sponsor has begun the process of obtaining the 61,000 signatures are required to get the measure on the ballot.
Missouri: In March, the Republican-controlled legislature defeated a 37-hour filibuster by Democrats to approve a state constitutional amendment allowing florists, bakeries, photographers and other expressive businesses to deny services to LGBT customers. The amendment could go to voters later this year.
Nebraska: Nebraska was considering a law allowing discrimination against LGBT individuals in adoptions and foster care placements, but the bill was withdrawn.
Oklahoma: Passed in 2015, Oklahoma protects clergy from having to conduct wedding ceremonies and providing marriage counseling services that violate their religious beliefs. (See Florida).
Tennessee: On April 6, the Tennessee House passed a bill allowing mental health counselors to refuse to treat LGBT individuals if doing so violates the counselor’s religious beliefs. Counselors are protected against civil liability for discriminating against people based upon sexual orientation or gender identity even though such denials of service constitutes a violation of the American Counseling Society’s code of ethics. The Senate has already approved the measure, so it now goes to the Governor for his signature. The state is also considering its own version of a “bathroom bill.” And, in related news, on April 4, the legislature voted to make the Bible the official state book. The Governor has expressed his opposition, but has not stated whether he will veto the bill.
Virginia: Governor McAuliffe vetoed a bill which would have prohibited clergy from being required to officiate at wedding ceremonies (see Florida and Oklahoma), and exempted state officials from being liable for refusing to serve Virginia’s LGBT citizens as long as that refusal was based upon their religious beliefs. Another measure protecting the right of religious believers to discriminate against LGBT customers was considered but failed in the legislature.
West Virginia: As originally proposed, West Virginia’s bill was a state RFRA, but, when language was added which would have prohibited the law from being used to allow discrimination against LGBT individuals, it was defeated in the legislature.
Because sexual orientation and gender identity are not yet protected under federal anti-discrimination law, and, in the wake of the Supreme court’s decision upholding marriage equality, states and municipalities across the country are debating whether to protect the civil rights of LGBT individuals or to allow them to be discriminated against by individuals and businesses who claim a religious belief that requires them to do so. And we will continue to see more laws like those in Mississippi and North Carolina.