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Discrimination Masquerading as Religious Freedom is a Slippery Slope that Hurts Everyone

By Arielle P. Schwartz, Holley Law Fellow, National Gay and Lesbian Task Force

We have watched in wonder at the meteoric rise of legal protections for the LGBT community over the last year. The number of states with marriage equality has doubled in the last year, while states like Maryland continue to move this country forward by working to add explicit non-discrimination protections on the basis of gender identity. Unfortunately, the pace of change has sparked a backlash of discriminatory legislation in states like Arizona, Tennessee, Kansas, Idaho, Missouri, and Mississippi where lawmakers are supporting discriminatory measures.

The majority of the state bills are called “Free Exercise of Religion,” finding their reasoning hidden in the Religious Freedom Restoration Act (RFRA). RFRA is a 1993 United States federal law designed to prevent laws that substantially burden a person’s exercise of religion, unless the government can demonstrate that the burden (also known as the law) furthers a “compelling governmental interest” and is “narrowly tailored” to achieve that interest.

Why would states like Arizona feel the need to pass new laws “protecting the free exercise of religion” if we already have the RFRA?

Because in 1997, 4 years after RFRA was signed into law, the Supreme Court held in City of Boerne v. Flores that Congress only has the Constitutional authority to apply these restrictions to federal laws, and that applying  RFRA to the states exceeded Congress’s authority. As such, some state lawmakers feel the need to codify blanket authority for people to refuse to provide basic public services to virtually anyone by claiming a religious belief.

The state “Free Religion” bills are problematic because they are so broad that “any individual, association, partnership, corporation, church, religious assembly or institution or other business organization,” (like a restaurant, hotel, or bakery) can cite their religion as a tool to refuse service to someone who identifies as LGBT or exhibits some other trait “objectionable” to the owner, like pregnancy outside of wedlock or sporting tattoos.

For example, according to Arizona’s Senate Bill 1062, a business can refuse service to someone and claim that their freedom of religion is violated if they are forced to serve that person, as long as they show the following three requirements:

  1. That the person’s action or refusal to act is motivated by a religious belief.
  2. That the person’s religious belief is sincerely held.
  3. That the state action substantially burdens the exercise of the person’s religious beliefs.

Bibles condemn tattoos (Leviticus 19:28), rounded haircuts (Leviticus 19:27), divorce (Mark 10:11), and women speaking in places of worship (1 Corinthians 14:34-35). Should a restaurant owner legitimately be allowed to refuse service to someone because of their haircut?

Do you remember when the Oregon bakery “Sweet Cakes by Melissa” refused to bake a cake for a lesbian couple? Under Oregon law, individuals may not be denied service based on sexual orientation or gender identity from a private business. However, unlike Oregon, Arizona is amongst the majority of states that do not have statewide laws to protect individuals from discrimination based on their sexual orientation and gender identity.

Furthermore, these “refusal to serve” bills (sometimes called conscience clauses) can be deadly. They are narrow enough that medical doctors and hospitals can use their religion to refuse someone who needs an abortion, artificial insemination, birth control, emergency contraception, and patient referrals. In fact, the bills would allow medical doctors and hospitals to refuse to treat those who identify as LGBT.

In 1995, Tyra Hunter, a transgender woman, was injured in a serious car accident. The paramedics arrived and began treatment. In the course of that treatment, paramedics discovered that Tyra was transgender, and withdrew care. As she laid in the street, the paramedics who had been charged with saving her life were instead laughing and directing slurs at her.

It seems that even this would be legal under Arizona’s SB 1062.

We already see this sort of discrimination on a horrifyingly frequent basis. For example, the National Transgender Discrimination Survey found that  5% of trans people were denied equal treatment by an ambulance or EMT, 22% were harassed or disrespected in a doctor’s office or hospital, and an unbelievable 4% of transgender people were physically assaulted by police officers.

This recent influx of state discrimination is another reason why we need federally recognized legislation such as the Employment Non-Discrimination Act (ENDA). Our elected officials must be held accountable and enact laws that safeguard people who do not live in places like Oregon that have statewide non-discrimination  protections. These bills negatively affect the economy, they are bad for business, and they are bad for families. There is no religious justification for refusing to provide someone a seat at the lunch counter or life-saving medical treatment.

This is just the start. Next month, the Supreme Court will hear oral arguments in a similar case that deals with businesses refusing to provide health insurance plans that include women’s reproductive care on the basis that women’s access to reproductive health is a violation of their religious views. Indeed, while this doesn’t seem like an LGBT issue on its face, this case has significant implications for the LGBT community.