With same-sex marriage all but a done deal, the next fight for LGBT equality is discrimination disguised as religion

By : Jamie Hyman
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Few combative issues have raised eyebrows as much as the recent string of legislation promoting “religious freedom.”

A recent push to create bills designed to protect business owners from having to engage in services that are against their religious beliefs has surfaced in more than half of our country’s states. The problem is that these Religious Freedom Restoration Acts—also known as RFRAs—are frequently wielded as a weapon allowing business owners to deny service to LGBTs.

It’s no surprise RFRAs, and the various ways they’ve been deployed in recent months, have made headlines and sparked untold numbers of heated online, political and personal arguments. The concept strikes at the soft underbelly of who people love and what they believe. Damaging either aspect of a person’s identity is guaranteed to wound deeply, which is why we defend these rights so passionately.

Switching sides

In order to fully understand RFRAs, we must first take a glance at their history. It might be surprising to discover that they actually began as a liberal cause. The American Civil Liberties Union initiated the federal Religious Freedon Restoration Act that President Bill Clinton signed in 1993. That law—and the 20 or so state RFRAs passed since then, including in Florida—means the government can’t “substantially burden a person’s exercise of religion.”

Previous to 2015, RFRAs were primarily used to decide issues like Native American sacred land use disputes, or whether a Muslim woman has to take off a veil for a driver’s license photo, or whether federal inmates have to shave their facial hair if it violates their religion.

The 2015 versions, however, are a very different type of legislation.

Several states have proposed these measures and Indiana’s went far enough for Gov. Mike Pence to sign, which earned the state an onslaught of national attention.

First, these bills expand beyond individuals to cover businesses and non-profit organizations. Under section 9 of the Indiana state law it says a “person” (which under the law includes not only an individual but also any organization, partnership, LLC, corporation, company, firm, church, religious society, or other entity) whose “exercise of religion has been substantially burdened, or is likely to be substantially burdened” can use the law as “a claim or defense regardless of whether the state or any other governmental entity is a party to the proceeding.”

The federal RFRA that supporters of the “religious freedom” laws and Gov. Pence refer to only applies to disputes between private citizens and a government.

Secondly, according to Orlando attorney and LGBT activist Mary Meeks, the new bills explicitly allow for discrimination by allowing people and businesses to use the law as defense if they’re sued for refusing to serve LGBTs—even in areas where specific LGBT protections exist.

“So ostensibly, the way those religious laws were written, they could be used as a defense, to say you cannot enforce that Human Rights Ordinance (HRO) against me because it infringes on my religious liberty,” Meeks says.

Supporters of the RFRAs say that just isn’t the case. Gov. Pence defended signing the bill stating “we’ve got a perception problem” when he spoke to George Stephanopoulos on ABC’s This Week. “The things that have been said about our state law have been at times deeply offensive to me,” said Pence. While still stating the law could not be used to discriminate against members of the LGBT community, he has moved forward to have the law amended to include wording that prohibits service providers from using the law as a legal defense for refusing to provide services, goods, facilities or accommodations.

It also bars discrimination based on race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity or U.S. military service.

But the question is, does this help?

“The federal one and most of the existing ones before the current ones didn’t have that much more wide ranging provisions. And that’s actually the real fear,” Meeks says. “So, once these two in Indiana and Arkansas supposedly got fixed, that didn’t really change anything because in those states, as in Florida, it’s already legal to deny services to gay people. So it wasn’t a question of whether you can do it or not, it’s just a question of whether you’re going to pass a law that definitively in the face tells people yes, you can do it and the government will support you. But it hasn’t changed the fact that it’s still legal to do it.”

Why would you want an anti-gay cake?

So why should gay people even care if religious people don’t want to serve them? Since the introduction of the expanded RFRAs, people on both sides have argued that if a vendor says it’s against their religion to serve LGBTs, gay customers should spend their dollars elsewhere.

Frequently. the brand of LGBT discrimination is inflicted by wedding vendors who do not want to provide service for a same-sex wedding. and a recent AP poll stated 57% of Americans think wedding-related businesses should be allowed to refuse services to gay and lesbian couples because of religious objections. So, let’s use this as our example.

First, it exhibits a strong urban bias, that is, an assumption that everyone lives in areas where there are a plethora of services from which to choose. Even in small towns, where there are likely several photographers, it’s far more likely that there are very limited wedding planners. What if the one or two wedding planners geographically acceptable say that providing the service to same-sex couples violates their religion?

The couple is out of luck, and it shouldn’t be that way.

“What if there’s only three in town?” Meeks asks. “Two of them are already booked, the third one says’ I ain’t gonna do it because I don’t believe in it.’ So the next closest wedding planner they can get is 700 miles away.”

That’s the practical reason. But there is a principled reason as well: businesses simply shouldn’t be allowed to discriminate against LGBTs any more than they’re allowed to discriminate against black people or women or the elderly.

“It’s the same argument for when people say if you live in a bad part of the state where there are no protections for gays, ‘Well just move,’” said Meeks. “I would hope most people see that as counter-intuitive. You shouldn’t have to move just because you’re gay or whatever you happen to be. You should have the right to get whatever services are offered to the public. Period.”

The doctor won’t see you now

Much of the focus for these RFRAs are put on wedding services, but what stops any business or service provider from doing the same thing.

What if a lawyer or pharmacist or doctor refuses to see an individual or couple because their “lifestyle” conflicts with their religious conscience, regardless of the professional oath they have taken.

Jami and Krista Contreras have been together for four years, married for two. They live in Michigan, a state that doesn’t recognize same-sex marriages. The Contreras have a six-day-old baby girl, Bay, and just like any new parents they wanted to visit a pediatrician.

“We researched pediatricians,” says Krista. “[Vesna Roi] came recommended to us by our midwife. We really liked her and two months before Bay was born, we booked the appointment.”

When the Contreras family showed up at Eastlake Pediatrics, they were placed in a room and waited for who they thought would be Dr. Roi when another doctor walked in.

“The doctor told us Dr. Roi prayed on it and decided she wouldn’t be able to take Bay on as a patient,” says Krista. Bay was seen by the doctor that broke the news to the Contreras and finished the appointment.

“We were humiliated and dumbfounded,” Krista says. “We had done our research to prevent this from happening. I think we were frustrated and hurt more than anything. This was our first child. Any new parent can attest you just want reassurance. You’re scared, you’re adjusting, life is crazy. It was our first time out of the house with a newborn.”

That feeling didn’t go away for Krista. She was uneasy and humiliated and that is what opponents of RFRAs say is wrong with them. They do not allow certain groups of citizens to have the same access to resources that all citizens do.

“I remember last year sharing something on Facebook on how an EMT could refuse service to a patient,” Krista says. “The opposition said it would never be used for that, that’s ridiculous, no one in the medical field would ever do that. I remember that so vividly and here we are with a six-day-old and it’s happening, it happened to us.”

Your freedom of religion is just a red herring

So with the federal RFRA being adopted into law in 1993, why this surge to bring new RFRAs to the state legislatures? The timing is a bit fortuitous with many states recognizing same-sex marriage and the Supreme Court preparing to hear arguments to make it legal across all 50 states.

“There’s always a purpose or a reason, something that prompts a new law,” Meeks says. “Usually, it’s in the legislative history. Well, what is it? What were the infringements of people’s religious rights in Indiana that prompted them to pass this law in 2015? I’ll bet you there’s nothing. You already have constitutional protections to exercise your religion. Why do you need an extra law? This had to do with gay marriage. It’s all symbolic, it’s all chest-thumping.”

In 1998, Florida passed its own RFRA, but unlike the one in Indiana, it is closely modeled after the 1993 federal RFRA. That doesn’t mean the legislature here isn’t looking at how they can incorporate more “religious freedom.”

Rep. Jason Brodeur (R-Sanford) sponsored The Conscience Protection for Actions of Private Child-Placing Agencies. The bill would allow privately owned adoption agencies, whether they receive state funds or not, to deny a couple or individual from adopting based on religious or moral convictions. This bill creates a RFRA specifically for adoption agencies that could open the floodgates for a broad sweeping bill like the ones we see moving through Indiana and Arkansas.

“I would not be surprised if [a RFRA] was brought before the state House tomorrow,” says Meeks. “Maybe they are waiting to see what happens with the adoption bill, maybe that’s the test balloon.”

The adoption debate in Florida mirrors the larger debate on RFRAs going on where as “religious freedom” bills are coming up as a result of gay marriage being legalized. Simply, the Conscience Protection bill is a direct result of the State Legislature voting to remove the 38-year-old ban on gay adoption. It’s the religious right wanting to stick it to the liberal left because they feel they got a victory.

Where do we go from here?

With supporters of RFRAs saying they want the freedom to exercise their religion and opponents saying, “Fine, exercise them, just don’t discriminate while doing so,” what is the right answer?

“Very simply, you cannot pass a law that takes away someone’s constitutional rights,” says Meeks. “In Florida, unless you’re in a city or a county that has an HRO, you can do just about anything to gay people. There are no protections whatsoever from discrimination. You can fire a gay person, you can not rent them a house, you can not serve them in a restaurant. All of those things, perfectly legal.”

Florida, along with many states that still have no laws protecting based on sexual orientation, need to address the elephant in the room—why the LGBT community is not a protected class.

“This is bigger than just wedding cakes and flowers,” says Krista, who has now settled Bay in with a pediatrician who is accepting of all children. “I just made a dentist appointment the other day and now I am worried if I will be turned away.”

Jeremy Williams contributed to this article.

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