States Weigh Legislation to Let Businesses Refuse to Serve Gay Couples

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nytimes.com · by RICHARD FAUSSET

ATLANTA — As it looks increasingly likely that the Supreme Court will establish a nationwide right to same-sex marriage later this year, state legislatures across the country are taking up bills that would make it easier for businesses and individuals to opt out of serving gay couples on religious grounds.

Many states are now reliving a version of events that embroiled Arizona in February 2014, when Gov. Jan Brewer, a Republican, vetoed a bill that would have allowed businesses to use their religious beliefs as a legal justification for refusing to serve gay customers.

The resurgent controversy is fueled in part by a deep anxiety among many evangelicals and other conservatives that the Supreme Court will make same-sex marriage legal in all 50 states after it takes up the matter in April.

“The L.G.B.T. movement is the main thing, the primary thing that’s going to be challenging religious liberties and the freedom to live out religious convictions,” said State Senator Joseph Silk, an Oklahoma Republican and the sponsor of a bill in that state. “And I say that sensitively, because I have homosexual friends.”

As in Arizona last year, some of the new bills are already experiencing pushback from businesses and prominent conservatives who are concerned that they might lead to boycotts or harm their states’ reputations. And gay-rights groups say the bills would enshrine discrimination.

In Arkansas, a so-called conscience protection bill was scuttled in the Judiciary Committee of the State Senate on Feb. 25, a day after the homegrown retail giant Walmart released a statement arguing that the bill would send “the wrong message about Arkansas, as well as the diverse environment which exists in the state.”

Supporters of the proposal, which the State House of Representatives overwhelmingly approved, said they might introduce a new version this session.

In Georgia, powerful business interests helped kill similar legislation last year. Opposition to two similar bills remains strong among a portion of the state’s elite, who are sensitive to the perceptions that Southern states, in particular, can be havens of intolerance.

“What you have to be careful about is making sure you don’t conform to those perceptions,” said former Gov. Roy Barnes, a Democrat. “That’s the reason this bill is so dangerous.”

The Georgia Senate approved a version of the legislation on Thursday afternoon by a vote of 37 to 15.

Similar bills have been introduced in Colorado, Hawaii, Indiana, Michigan, Utah, West Virginia and Wyoming, according to the Human Rights Campaign.

Bills in South Dakota and Wyoming recently failed. In Texas, which already has such a law, lawmakers are considering a constitutional amendment that would make it even easier for religious people who feel aggrieved by government policy to win their cases in court.

Same-sex marriage is now legal in 36 states and the District of Columbia. Its status in a 37th state, Alabama, is unclear because of conflicting state and federal court orders.

Concern over the expansion, which has accelerated in the last year with a flurry of federal court decisions, is driving a good deal of support for the bills.

“They don’t have a right to be served in every single store,” said Mr. Silk, the Oklahoma state senator, referring to gay people. “People need to have the ability to refuse service if its violates their religious convictions.”

Others say their support is based on more general principles of religious freedom.

“When government wants to infringe on your conscience, then you need to be protected, and in America, we want to protect everybody,” said State Representative Scott Craig, Republican of South Dakota, who is a pastor and the sponsor of a failed proposal there.

In Michigan, supporters have said a bill there would serve as a necessary legal counterweight to a proposal seeking expanded anti-discrimination policies for lesbian, gay, bisexual and transgender people.

Russell Moore, the president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, said the religious-freedom bills were necessary to address the “increasing religious pluralism in American culture.”

“In recent years, I think more people are aware of the need to explicitly and clearly protect religious liberty,” he said.

In general, the bills would make it easier to win court cases brought by individuals who claim their exercise of religion was infringed by government policy.

Many of the bills contain language that the government may not “burden,” or in some states “substantially burden,” the practice of religion, and may do so only if it can both demonstrate a “compelling” interest, and show that it is doing so by the least restrictive means.

Their model is the federal Religious Freedom Restoration Act, or R.F.R.A., which was signed into law in 1993 by President Bill Clinton, and which enjoyed overwhelming support from both liberal and conservative members of Congress.

The act was an effort to restore the rights of religious practitioners that had been curtailed by the Supreme Court’s 1990 decision in the case Employment Division v. Smith. In that case, the court upheld Oregon’s denial of unemployment benefits to employees fired for using peyote in a religious ritual.

In 1997, however, a Supreme Court ruling effectively limited the law’s application to the federal government. In response, a number of states began passing and putting together their own laws similar to the Religious Freedom Restoration Act. Today, the laws exist in 19 states, and courts in a number of other states apply the act’s legal standards in determining relevant cases.

But gay rights and civil rights groups have become increasingly concerned, as some lawmakers have said their aim is to protect wedding planners and other businesses who might wish to refuse service to a same-sex couple on religious grounds.

The Human Rights Campaign, in a recent position paper, warned that the current bills would empower “any individual to sue the government to attempt to end the enforcement of a nondiscrimination law.”

As a result, the group says, an evangelical business owner could sue, claiming his faith compels him to refuse to hire “Jews, divorcees, or L.G.B.T. people.” Landlords could refuse to rent apartments to Muslims.

Supporters of the bills say such fears are overblown, noting that in many states that already have Religious Freedom Restoration Act laws, judges have taken care to balance the religious liberty claims of aggrieved believers against existing nondiscrimination laws, or the general principle that discrimination is harmful to society.

“R.F.R.A. doesn’t guarantee the result in any case,” said Thomas Berg, a professor at the University of St. Thomas School of Law in Minneapolis. Instead, he said, it merely establishes the standard that must be met, and gives an individual the right to require that the government prove a “compelling interest.”

“That doesn’t mean that R.F.R.A. claims are always going to prevail over gay rights statutes,” he said. “It gives the objector the chance to make the argument.”

Christopher Lund, an associate law professor at Wayne State University in Detroit, has compiled a number of instances in which state Religious Freedom Restoration Act laws have protected religious minorities, including a Native-American student who won the right to wear his hair long at a Texas school, and Santeria practitioners who were allowed to continue sacrificing animals in religious rituals.

Sarah Warbelow, the legal director of the Human Rights Campaign, said that her group fully supported the idea of protecting religious rights.

But she said she would like to see even the existing laws amended “to clarify that they should not be used to undermine nondiscrimination principles, or to engage in harm against others.”

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