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The Balancing Act of Determining Discrimination

17 May 2016

The balancing act of determining discrimination

Multiple “religious freedom” bills are currently capturing the attention of state legislatures across the country. “Religious freedom” bills are proposed legislation that call for religious organizations, businesses, and individuals to be protected from penalties for declining to provide services to individuals whose lifestyle conflicts with their sincerely held religious beliefs.  After the Supreme Court decision in 2015 to legalize same-sex marriage, these bills are particularly pertinent for those who, due to their religious beliefs, feel that they cannot provide their services to LGBTQ events concerning marriage. As a result, state legislatures and their constituents are facing the question of how they should balance the rights of people of faith and those of LGBTQ people.

The pressure to strike this balance has not been isolated to this year alone. In 2015, after passing SB 101, a bill that prohibited the state from “burdening a person’s exercise of religion,” the Indiana legislature clarified a month later with SB 50 that SB 101 does not authorize a “provider” to refuse an individual on the basis of the individual’s sexual orientation or gender identity. This event foreshadowed the legislative competition that was to come after the 2015 same-sex marriage decision, with churches and LGBTQ groups vying for the protection of those they represent.

Introduced in January 2016, Georgia HB 757 proposed to authorize a religious official or organization to decline to perform a ceremony or provide a service that went against their religious beliefs. The bill passed both the House and the Senate and was strongly supported by religious groups, with 1.3 million members of the Georgia Baptist Mission Board rallying to actively support the bill. However, on March 28th Georgia Governor Nathan Deal  vetoed the bill.

The bill had faced criticism from multiple fronts. LGBTQ rights groups opposed the bill, arguing that it essentially “legalized discrimination.” Their argument was backed by many major corporations, such as The Walt Disney Co., who stated that they would sever ties with Georgia’s Pinewood Studios “should any legislation allowing discriminatory practices be signed into state law”. Finally, once vetoed, the New York City Mayor Bill de Blasio announced that if the Governor’s veto was overturned, De Blasio would institute a ban on all “non-essential” travel by New York City employees to the state of Georgia. Non-essential travel bans are increasingly being used in the debate over this issue, as can be seen in the case of the response to the recent passing of HB 2 in North Carolina on March 23rd. The bill prohibits local governments from passing nondiscrimination ordinances and was passed in response to a Charlotte city ordinance prohibiting discrimination based on sexual orientation. HB 2’s passage has prompted De Blasio, the governors of New York, Connecticut, and Minnesota, and the mayors of Washington D.C., San Francisco, Seattle and the Atlanta to issue bans on non-essential travel to North Carolina, elevating this debate over discrimination to a level of national significance.

The conflict between state and local legislative powers that has emerged over the issue of discrimination is not unique to North Carolina. Florida HB 43, a religious freedom bill of the same kind as Georgia HB 757, passed in both the House and the Senate and was approved by the Governor. The bill was supported by members of Florida’s religious community, who had expressed to the Florida Family Policy Council concerns about what the 2015 Supreme Court decision would require of them. Republican Representative Dennis Bexley vocalized this general feeling of concern when he argued that the bill is necessary to halt and prevent discrimination against people of faith. However, the bill appears to be moving the state in a different direction to that of its cities, with twenty-four Florida cities covering its citizens with local ordinances prohibiting discrimination based on sexual orientation. Similarly, Georgia HB 757 was and Kentucky’s SB 180  is at odds with the liberal leanings of their major cities, which have passed ordinances prohibiting discrimination based on sexual orientation.