States Deciding Whether Business May Refuse Services to Gay Couples

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Summary: With the Supreme Court’s decision on gay marriage right around the corner, many states are deciding whether their businesses will be able to refuse doing business with same-sex couples.

Although it appears that the Supreme Court of the United States may rule in favor of same-sex marriage this summer, state legislatures nationwide are introducing bills that would allow businesses and other individuals to refuse to serve same-sex couples for religious reasons.

  

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According to the New York Times, many states are recalling an episode from February 2014 in Arizona, when Governor Jan Brewer vetoed a bill that would have given businesses permission to use their personal religious beliefs to refuse services to gay customers.

Many conservatives and deeply religious individuals in the United States are concerned that same-sex marriage will be legal in the near future. The Supreme Court will hear arguments on the issue in April. A ruling in support of same-sex marriage would legalize it in all 50 states.

State Senator Joseph Silk, a Republican from Oklahoma, said, “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. And I say that sensitively, because I have homosexual friends.”

Some of the proposed bills are already being criticized by businesses and well-known conservatives who have expressed concern that the bills may hurt their state’s reputations or lead to boycotts of local businesses. Gay rights groups argue that the bills would protect discrimination. In fact, according to Reuters, some 379 businesses and groups have signed a “friend of the court” brief that was filed with the Supreme Court in support of gay marriage.

A “conscious protection” bill was thrown out in the Judiciary Committee of Arkansas’ State Senate on February 25, just one day after Wal-Mart issued a statement that the bill sent “the wrong message about Arkansas, as well as the diverse environment which exists in the state.”

However, supporters of the proposed bill, which was approved by the State House of Representatives, are possibly planning the introduction of a new version this session.

In Georgia, significant business concerns thwarted similar legislation last year. Many of the state’s prominent politicians and citizens are concerned that such bills imply that Southern states are intolerant. Former Governor Roy Barnes, a member of the Democratic Party, said, “What you have to be careful about is making sure you don’t conform to those perceptions. That’s the reason this bill is so dangerous.”

Georgia’s Senate approved a version of the bill on Thursday afternoon. The vote was 37-15. Other such bills have been introduced in Wyoming, West Virginia, Utah, Michigan, Indiana, Hawaii, and Colorado. The bills in Wyoming and South Dakota failed, and Texas, which already has legislation in place, is toying with the idea of a constitutional amendment that would make it easier for religious persons who feel distressed by government policy to prevail in court.

Same-sex marriage is legal in 26 states, as well as the District of Columbia. In Alabama, the status is not clear since federal court orders and state court orders are in conflict with each other.

Read about the conflicts in Alabama here.

Concern over the growth of same-sex marriage has triggered a lot of the support for the bills. Silk said, “They don’t have a right to be served in every single store. People need to have the ability to refuse service if it violates their religious convictions.”

Others argue that support for the bills stems from the idea of religious freedom. State Representative Scott Craig, a Republican from South Dakota, said, “When government wants to infringe on your conscience, then you need to be protected, and in America, we want to protect everybody.” Craig also serves as a pastor, and sponsored a failed bill in his state.

Supporters in Michigan have argued that a bill would be necessary to counteract a proposal that seeks expanded anti-discrimination protections for lesbian, gay, bisexual, and transgender individuals.

Russell Moore, who serve as the president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, said that the bills were needed to address the “increasing religious pluralism in American culture.” He added, “In recent years, I think more people are aware of the need to explicitly and clearly protect religious liberty.”

In October, the Supreme Court denied hearing appeals on gay marriage bans.

These bills would allow those who bring court cases claiming their religious rights were infringed upon to prevail more easily. For example, many bills say that the government may not “burden” or “substantially burden” the practice of one’s religion, and is only allowed to do so if it can demonstrate both a “compelling” interest, as well as that it is doing so by the least restrictive means available.

These bills are reflective of the Religious Freedom Restoration Act, which was signed into federal law by President Bill Clinton in 1993. Both liberal and conservative members of Congress have voiced support for the federal law.

The Religious Freedom Restoration Act was created in response to the Supreme Court’s decision in the 1990 case Employment Division v. Smith. The court held that Oregon was able to deny unemployment benefits to employees who were fired for using peyote during a religious ceremony.

A few years later, in 1997, the Supreme Court ruled again, limiting the application of the law to the federal government. Therefore, many states began creating legislation similar to the Religious Freedom Restoration Act. A total of 19 states have such laws today, and courts in other states have used the federal act’s legal standards in analyzing cases.

However, both gay rights and other human rights groups have expressed concern, since some lawmakers and legislators have said that they want to protect wedding planners and other business owners who want to refuse service to same-sex couples because of their religion. The Human Rights Campaign said that the proposed bills would allow “any individual to sue the government to attempt to end the enforcement of a nondiscrimination law.”

Many briefs have been filed with the Supreme Court on the issue.

This means that a Christian business owner could sue and argue that because of his faith, he may refuse to hire “Jews, divorcees, or L.G.B.T. people.” Or, landlords could refuse to rent to Muslims. The possibilities could be endless.

Those who support the bill argue that these fears are exaggerated, and that in many states that have enacted some form of the Religious Freedom Restoration Act, judges have carefully balanced the religious liberty claims of believers against nondiscrimination statutes, and the general idea that discrimination harms society.

Thomas Berg, a professor at the University of St. Thomas School of Law in Minneapolis, said, “R.F.R.A. doesn’t guarantee the result in any case.” He explained that the law simply establishes the standard that must be met, and provides individuals the right to require that the government show a “compelling interest.” Berg added, “That doesn’t mean that R.F.R.A. claims are always going to prevail over gay rights statutes. It gives the objector the chance to make the argument.”

An associate law professor at Wayne State University, Christopher Lund, has created a list that show instances in which state Religious Freedom Restoration Act laws have offered protections to religious minorities, such as a Native American student who was granted the right to have long hair at his Texas school. In addition, some Santeria practitioners were allowed to perform animal sacrifices.

Sarah Warbelow, the legal director of the Human Rights Campaign, stated that the group supports protecting religious rights, but that they want to see the laws amended “to clarify that they should not be used to undermine nondiscrimination principles, or to engage in harm against others.” According to the Huffington Post, many businesses have argued that “employers are better served by a uniform marriage rule that gives equal dignity to employee relationships.”

Source: New York Times

Photo credit: towleroad.com