In a move extremely reminiscent of Kentucky, Washington State’s GOP is proposing a bill that would allow businesses to discriminate against LGBT people purely on the basis of religious or even just philosophical beliefs. 12 members of the state’s senate signed onto the measure, which is a response to a lawsuit filed by Washington’s Attorney General, Bob Ferguson, against a florist for refusing to sell flowers to a gay couple for their wedding because of her “relationship with Jesus Christ.”
Washington was among the four states whose voters passed full marriage equality in the 2012 elections, though other states have embraced marriage equality through legislation. Washington also has laws on the books dating back to 2006 that prohibit discrimination based on sexual identity and orientation in employment and housing. Washington also has many other pro-LGBT laws on the books.
While Senate Bill 5927 specifically states that it does not open the door to discrimination against protected classes, the LGBT community is currently not a protected class, and this bill creates broad powers for people to deny services to those in the LGBT community not just on religious beliefs, but also on philosophical grounds or even just matters of conscience.
The exemption is confusing to say the least, because it’s being added to the state’s existing non-discrimination bill, which prohibits discrimination based on sexual orientation. The paragraph in question reads:
“Nothing in this section may burden a person or religious organization’s freedom of religion including, but not limited to, the right of an individual or entity to deny services if providing those goods or services would be contrary to the individual’s or entity owner’s sincerely held religious beliefs, philosophical beliefs, or matters of conscience. This subsection does not apply to the denial of services to individuals recognized as a protected class under federal law applicable to the state as of the effective date of this section. The right to act or refuse to act in a manner motivated by a sincerely held religious belief, philosophical belief, or matter of conscience may not be burdened unless the government proves that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest.” [SOURCE]
The wording of this paragraph is eerily reminiscent to a vetoed measure intended to legalize discrimination in Kentucky in early March. Governor Steve Beshear vetoed that bill due to its broad, vague language and the potential for that language to lead to lengthy, complex lawsuits that would be costly for the state. This paragraph makes use of much of the same vague language, and is likely to cause significant problems for a state that is far friendlier to the LGBT community than Kentucky, should it pass.
According to the The News Tribune, State Sen. Sharon Brown, the bill’s main sponsor, said, “There’s a glaring lack of protection for religion in state law.” The issue that people see seems to be two-fold: The first part is when religious business owners think of their businesses as religious establishments, and try to enforce their religious beliefs on their patrons. However, the anti-discrimination law already in place prohibits discrimination against someone for being a certain religion, as in, an establishment run by a Christian couple can’t deny service to a Muslim simply because he’s Muslim, and vice versa. Also, legal exemptions to the Civil Rights Act of 1964 protect religious organizations from having to violate their religious tenets and beliefs in order to comply with the Act.
The problem is worst when it comes to defining what a religious organization is, and federal circuit courts seem to be split on the proper “test” to use, at least when it comes to employment discrimination. The 9th Circuit Court seems to lean towards whether an organization was formed with a religious purpose, holds itself out to the public as a religious organization, and is engaged primarily with carrying out religious purpose. This particular test applies to Title VII, and it’s not clear whether it would also apply to Title II and the rest of the Act as well.
It’s hard to say whether a florist would be considered a religious organization under that definition. It may not matter anyway though, since the LBGT community is not a protected class, which creates loopholes. Title II of the Civil Rights Act is what’s in question here, and basically, these GOP senators are seeking to exploit that loophole.
There needs to be a solid legal definition of “religious organization” in the law, and the LGBT community, given that they can’t change who they are any more than a black woman can become a white man should she so choose, needs to come under the protection of the Civil Rights Act. Until then, we’ll continue to see bills like this, and lawsuits like the one against the florist, come up as the religious right continues to try and impose its religious beliefs on the rest of us.
|Rika Christensen is an experienced writer and loves debating politics. Engage with her and see more of her work by following her on Facebook and Twitter, and check out her blog, They Need To Go.|