Why a “Discrimination” Provision Guts RFRA

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Essentially, every individual discriminates in some fashion. Gay rights activists refrain from eating at Chick-Fil-A because the company funds traditional marriage organizations. Abortion rights activists boycott Domino’s Pizza because its founder contributes to pro-life organizations. Obamacare advocates boycott Papa John’s because of its owner’s comments on Obamacare. Many Christian evangelical churches have stopped serving Starbucks on Sunday mornings because Starbucks actively contributes to both gay marriage and abortion rights organizations.

Religious organizations, like individuals, discriminate and do so on the basis of their religion. Some do not have female preachers. Some require that teachers be single and celibate unless married. Some require that married couples be heterosexual.

The Supreme Court has previously held that race based discrimination is pernicious and its prohibition is a compelling governmental interest that even religious organizations must adhere to. Likewise, the federal government outlawed polygamy and the Mormon Church found a Supreme Court that decided a prohibition on polygamy was a compelling governmental interest and, therefore, overcame First Amendment concerns by the Mormon Church.

Unfortunately, should a blanket discrimination provision be inserted into the Religious Freedom Restoration Act (“RFRA”), it would allow discrimination cases to go forward against religious organizations even if the discrimination claim did not reach a compelling government interest, e.g. discrimination based on race and national origin.

Put more practically, one does not need a rainbow sticker on the back of their car to let you know they’re gay. The two are not the same. Likewise, this is not a hypothetical, but a real world scenario. More importantly, it is happening within liberal municipalities inside conservative states. Liberal activists, knowing they have no chance of expanding discrimination definitions at the state level, or doing so at the local level with surprisingly effective results. Add a discrimination provision to RFRA and you see the protected classes grow quickly at local levels.

A. Texas

In San Antonio, TX, the city government passed sweeping anti-discrimination laws based on gender, sexual orientation, and transgenderism. Texas has a strong religious liberty statute and, consequently, the city government was not able to apply its discrimination statute because the state’s definition of a “compelling governmental interest” overrode the city’s findings.

Houston, TX, recently passed similar legislation and the Mayor of Houston, a lesbian activist, subpoenaed pastors’ sermons to harass them for their opposition to the legislation. Only after public outrage did she back down.

B. Kentucky

In 2012, the city of Lexington, KY passed sweeping local anti-discrimination legislation. That legislation denied building permits, business licenses, and other government licenses to for-profit and non-profit organizations that discriminated on the basis of gender, sexual orientation, and transgenderism.

The City of Lexington began harassing non-profit religious organizations over such things as having gender segregated bathrooms, requires that adoptions be in married, heterosexual households, etc.

The Kentucky Legislature subsequently passed H. B. 279, Kentucky’s state level version of RFRA. Testimony in the Kentucky House Judiciary Committee buttressed the argument that religious organizations should be allowed to use their religious standards in the conduct of their business.

C. Arkansas

Fayetteville, Arkansas’s City Council passed a sweeping non-discrimination ordinance in 2014. The Council, consisting largely of professors at the University of Arkansas, had concluded that gender segregated bathrooms, among other things, stigmatized the transgendered community. The voters in Arkansas quickly repealed the ordinance in a referendum.

When people say they only want RFRA with “non-discrimination” provisions, what they are really saying is they want to force their own views on churches and the religious. And frankly, while they can throw out nutty hypothetical after nutty hypothetical, the facts are the side of people of faith.

In Oregon, Aaron and Melissa Klein and their five children are losing their home due to bankruptcy. Their business, Sweet Cakes by Melissa, is going under.

Black, white, Asian, male, female, gay, and straight couples have all bought cakes from Mr. and Mrs. Klein over the years. This past year, the Kleins were asked to bake a wedding cake for a lesbian couple. They declined because they are Christians. Despite having gays and lesbians support the bakery, Oregon has ordered the Kleins to pay the lesbian couple $150,000.00 for discriminating against them. The Kleins do not have the money and are filing bankruptcy.

In a unanimous vote of the District of Columbia Council in December, businesses in Washington, D.C., including private, religious schools, must no longer make distinctions based on sexual orientation. Catholic Schools, which allow gay men and women to teach, but not marry, are beginning conversations about what to do, including closing schools. Other religious groups are doing the same.

In Colorado, Robert N. Spencer of Masterpiece Cakeshop has served gay and straight customers equally for years. But when a gay couple insisted Spencer bake them a wedding cake, Spencer offered an already made wedding cake that the couple could further customize. Based on his religious convictions, he did not believe he could provide his God given talents for a specifically made cake for a gay wedding. A Colorado court has now ordered Spencer to do it or close his business.

In Richland, Washington, Baronelle Stutzman has owned Arlene’s Flowers for several decades. She has a large gay customer base. But when Mrs. Stutzman declined to provide flowers for a gay wedding of long time customers, she was sued and the state sided with the gay couple, putting her business in jeopardy.

In New Mexico, a state that has a Religious Freedom Restoration Act (RFRA), but whose legislature has ruled discrimination based on sexual orientation verboten even against RFRA, Elaine Huguenin got dragged to court by a gay couple for declining to do photography of a gay wedding. She lost her case too. In New York, the state ordered a couple to pay damages and to cease holding weddings on their farm. The couple opened up their farm for weddings and for parties of people regardless of the hosting couple’s sexual orientation. But they did not want to allow a gay wedding on their property.

Gay rights advocates say a plurality of Americans support gay marriage so it should be so. An absolute majority of American support religious exceptions relating to providing goods and services to gay marriage. But gay rights advocates oppose that. The Supreme Court will undoubtedly impose gay marriage on the nation by June. Our state legislature needs to pass RFRA now to protect people of faith.

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Erick Erickson
By Erick Erickson

Erick Erickson

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