Issue March 12, 2013

Civil rights and wrongs

Opponents fear ‘religious freedom’ bill will undermine LGBT fairness ordinances and allow discrimination

The Kentucky state Senate followed the suit of their opposite chamber late Thursday night by overwhelmingly passing House Bill 279 — labeled by supporters as the “religious freedom” bill — sending it to Gov. Steve Beshear for his signature.

While HB 279’s supporters — prominent faith organizations like the Family Foundation of Kentucky and the Catholic Conference of Kentucky — hail the bill as strengthening citizens’ right to freely practice their religion, opponents are making a last-ditch plea for Beshear to veto the bill, arguing its broad language could make it legal to violate existing civil rights protections.

The bill allows a person to ignore a law if it “significantly burdens” their “sincerely held religious beliefs,” unless the government can prove it has a compelling interest to prevent that person from doing so. The ACLU of Kentucky and the Fairness Campaign sought to amend the bill with specific language prohibiting the law from jeopardizing federal, state and local civil rights protections, to no avail.

While opponents say the law could open the door to racial and gender discrimination, they are particularly fearful that it could undermine the fairness ordinances of four Kentucky cities — Louisville, Lexington, Covington and Vicco — that prohibit discrimination in employment, housing and public accommodations based on sexual orientation and gender identity.

“Passage of this legislation is an affront to those who have fought for decades to insure that every Kentuckian is treated with dignity and respect,” Michael Aldridge, ACLU of Kentucky executive director, stated in a press release. “The unintended consequences of this broad legislation are numerous, and we hope that a thorough review by the governor will reveal the flaws in the bill as drafted.”

Fairness Campaign director Chris Hartman is preparing to deliver letters from around the state to Beshear’s office on Wednesday morning, urging him to veto the legislation and send it back to the House, where he hopes they will add an amendment protecting civil rights.

But considering the bill originally passed the House in an overwhelming 82-7 vote — and given the requirement of only a majority vote in each chamber to override a potential gubernatorial veto — many believe such a move is unlikely.

However, Hartman remains hopeful that if Beshear sends HB 279 back to the House, members will add their favored amendment to improve it, noting that the bill was hastily rushed through the chamber two weeks ago with misinformation that legislators are now aware of.

Hartman tells LEO that one of the bill’s original sponsors was a longtime fairness ordinance supporter who withdrew her sponsorship the day before the vote once she became fully informed of its consequences. In addition, Rep. Arnold Simpson, D-Covington, originally voted for HB 279, but changed his vote last week.

“That is a sign that House members are willing to look at this again, and that (Democratic) leadership has the responsibility to look at this again,” Hartman says.

Supporters of HB 279 counter that fears of civil rights infringements are exaggerated, pointing to the 16 states that have adopted similar legislation over the past 15 years without such a consequence.

However, the ACLU and Fairness Campaign point out that several of those states, including Texas and Missouri, added specific clauses to their bills protecting existing civil rights laws, which Kentucky’s General Assembly failed to do.

Social conservatives around the country are currently making an organized push for more “religious freedom” bills, specifically in response to the mandate in the Affordable Care Act for non-religious organizations to provide contraception insurance coverage free of charge.

But such challenges to contraceptive coverage have not had much luck so far in the courts, and states like Nevada and Colorado have recently blocked similar legislative attempts. Even in deep-red Kansas, proposed religious freedom legislation specifically targeting local LGBT fairness ordinances has been amended to calm fears of discrimination.

Samuel Marcosson, a professor at the University of Louisville Brandeis School of Law, says that while such bills are not necessarily malicious or unwarranted, once these religious beliefs enter the public sphere, there is an inherent conflict.

“When they enter that world of other people’s employment and rights to public accommodation, that’s when you have those religious rights bound against other rights,” Marcosson says. “The underlying concern they have for religious freedom is a valid one. It’s how they’re trying to express it that begins to go too far.”

If HB 279 is signed into law, Marcosson expects the courts in Kentucky will now be the battlefield in determining this balance, mostly with legal challenges to fairness ordinances. Judges would not only have to decide what exactly constitutes a “compelling governmental interest,” but also weigh what religious beliefs are “sincere” and define what is a “substantial burden.”

Ultimately, he expects the Kentucky Supreme Court to play a major role in how HB 279 is interpreted.

While Marcosson doubts that racial discrimination will be upheld under the new law, he expects that there could be significant challenges to gender discrimination excused by religious beliefs.

“I think there could be folks who think that based on biblical pronouncements, men are the head of households, or women shouldn’t be working or making as much as men,” Marcosson says. “Those are going to be real cases that could come, not just sexual orientation.”

While fairness ordinances will face a definite challenge if HB 279 becomes law, Marcosson doesn’t expect it to be the death knell for local fairness ordinances in Kentucky.

“Not every individual who might discriminate on the basis of sexual orientation is going to have a religious basis for that, or a successful use of this law,” Marcosson says. “While there are problems, it’s not the end of the day for fairness ordinances, and it doesn’t mean that those supporting them should stop pursuing them in other cities in Kentucky."