With the recent wave of court rulings in favor of same-sex marriage, many policy experts and religious liberty advocates are working to strengthen religious liberty protections for individuals and businesses whose moral or religious beliefs prevent them from recognizing or participating in same-sex weddings.
Here in Virginia, state code protects individuals and businesses from government burdens on the free exercise of religion. Several other states have similar statutes, modeled on the federal Religious Freedom Restoration Act (RFRA) of 1993, which had broad bipartisan support. However, like the federal RFRA, many state codes, including Virginia’s, do not apply to suits to which the government or a government agency is not a party. In other words, RFRA does not protect individuals from lawsuits by other private parties.
The lack of RFRA’s protection in legal disputes between private parties has led to a Colorado baker, New Mexico photographer and Washington florist being legally chastised or fined for refusing to provide services for same-sex weddings or commitment ceremonies because of their deeply held religious beliefs. In response, legislators in Kansas and Arizona recently attempted to pass legislation protecting religious freedom. What followed was nothing short of a circus.
In Arizona, HB 1062 sought to make adjustments to the existing Arizona Religious Freedom Restoration Act to allow defendants in suits between private parties to claim a RFRA defense when their religious views prevent them—for instance—from providing photography services for same-sex weddings. The legislation merely would have allowed the defendant to claim protection under RFRA; it would not have guaranteed the defendant a legal victory. The measure was supported by the Arizona Catholic Conference.
The actual purpose of the law was lost in the hysterical headlines that claimed the bill would usher in an era of Jim Crow-like laws persecuting homosexuals, in which business owners could refuse any kind of service to gay people. However, there are no efforts by restaurants, hotels or other businesses of public accommodation to bar people who are gay from patronizing their businesses. The baker, photographer and florist referred to above have each provided, or expressed their willingness to provide, creative services to the plaintiffs for other events, but not at same-sex weddings, which violate their beliefs. Under intense pressure from businesses such as U.S Airways, Intel and Apple, as well as political luminaries Senators John McCain and Jeff Flake and former GOP presidential candidate Mitt Romney, Governor Jan Brewer vetoed the bill.
Similarly, Kansas legislation backed by the Kansas Catholic Conference failed to pass the legislature after cries of discrimination. Simply stated, HB 2453 protects religious Kansans – individuals and the institutions they form – from suffering any legal penalties for their positions on same-sex marriage. For instance, it would protect a church auxiliary organization such as the Knights of Columbus from legal action if it refused to rent facilities for a same-sex wedding.
In the midst of all the punditry surrounding the meaning—or lack thereof—of religious freedom, the 2012 story of a gay hairstylist who announced his refusal to continue to provide his services to New Mexico Governor Susana Martinez because of her stance on same-sex marriage was largely ignored. Like those artists refusing to provide their creative services to promote same-sex marriage, which they find morally objectionable, this hairstylist is exercising his right to refuse to act in ways that aid or abet behavior or beliefs to which he objects.
With Virginia’s same-sex marriage cases on the judicial fast track, protecting the rights of individuals and business owners to conduct themselves in accordance with their faith will become paramount. The Virginia Catholic Conference will continue to promote laws to protect the conscience and religious liberty rights of all Virginians.