Same-Sex ‘Marriage’ Issue Part of Push for State Religious-Liberty Bills

At least 19 states have passed their own versions of the federal Religious Freedom Restoration Act, and several other state legislatures are considering similar bills this year.

Kelvin Cochran was fired this month as Atlanta's fire chief for giving co-workers copies of his Christian self-help book, which is critical of homosexuality.
Kelvin Cochran was fired this month as Atlanta's fire chief for giving co-workers copies of his Christian self-help book, which is critical of homosexuality. (photo:

WASHINGTON — Instances where business owners and other individuals have been sued or threatened with legal action for not accommodating same-sex “married” couples are motivating some lawmakers and legal analysts to call for new state laws to protect religious liberties.

As of mid-January, at least 19 states had passed their own versions of the federal Religious Freedom Restoration Act, and several other state legislatures are considering similar bills this year.

“I see this as a shield for religious liberty. That’s why I filed the bill. Anything we can do to further protect the First Amendment and religious liberty is the goal,” said Indiana state Sen. Scott Schneider, R-Indianapolis, who filed a RFRA bill at the beginning of the legislative session this month. Schneider’s bill has come under fire from homosexual-rights groups for allegedly opening the door to discrimination against homosexuals.

Schneider told the Register he decided to sponsor the legislation after the U.S. Supreme Court last summer cited the 1993 federal law in ruling that the federal government’s contraception mandate violates the religious freedom of closely held corporations like Hobby Lobby, which is owned by a Christian family that opposes abortifacients.

“My motivation was not necessarily connected to same-sex ‘marriage,’” said Schneider, who dismissed the homosexual activists’ criticisms as “rubbish.” He noted that the American Civil Liberties Union supported the federal law in 1993, but homosexual-advocacy groups now are strongly lobbying against similar bills elsewhere.

“The various attacks on these laws, many of which have been in place for years, are embarrassingly dishonest,” said Gregg Scott, vice president of media communications for Alliance Defending Freedom, an Arizona-based Christian public interest law firm that has represented several individuals who have run afoul of state anti-discrimination laws for their moral opposition to being forced to promote messages and participate in events celebrating same-sex “marriage.”


The Federal Legislation

Scott told the Register that none of the “parade of horribles” that homosexual-rights advocates warn about has come to pass in the more than 20 years since President Bill Clinton signed the Religious Freedom Restoration Act.

“And those who oppose state freedom-protection laws know that,” Scott said.

Sponsored by Democrats and Republicans, the federal Religious Freedom Restoration Act was crafted as a response to a 1990 U.S. Supreme Court decision that upheld an Oregon law criminalizing peyote, a controlled substance used in American Indian religious rituals. The federal law is intended to provide a high standard for the federal government to implement any policy that burdens religious freedom. The federal government has to prove it has a compelling interest and that its policy is the least restrictive means of accomplishing that interest.

In 1997, state legislatures began pushing for their own versions of the RFRA after the Supreme Court ruled that the federal law does not apply to state-level court cases.

In the last two years, as legal challenges against Christian-owned businesses began circulating through the courts, several states have enacted their own RFRAs, including Kansas, Michigan and Kentucky. In addition to Indiana, lawmakers in Ohio and Virginia will also be considering similar bills this year.

“We’re looking to get states to pass legislation specifically mentioning conscience protection for religious entities, businesses and individuals who do not want to solemnize a same-sex ‘marriage,’” said Joseph Grabowski, a spokesman for the National Organization for Marriage.


Under Fire in Atlanta

The debate is gathering some momentum in Georgia, where, earlier this month, Atlanta Mayor Kasim Reed fired the city’s fire chief, Kelvin Cochran, for giving co-workers copies of his Christian self-help book, which was critical of homosexuality. A RFRA bill has been pre-filed in the Georgia State House of Representatives.

Tom Brejcha, president and chief counsel of the Thomas More Society, an Illinois-based public interest law firm that litigates religious-liberty cases, told the Register that state-level RFRA laws are helpful in that they provide explicit legal grounds for individuals who want to assert their religious freedoms.

“A RFRA makes it easier to defend. It casts in sharp relief the fundamental rights of people with religiously informed consciences,” said Brejcha, who suggested, for example, that a state RFRA would protect a baker who does not want to provide a wedding cake to a same-sex couple.

“The RFRA provides a second line of defense, behind the First Amendment and its protections of religious freedom and speech,” Brejcha added. “It was RFRA, after all, that prevailed in the Hobby Lobby case at the Supreme Court.”

However, Robert Destro, a law professor and director and founder of the Interdisciplinary Program in Law and Religion at The Catholic University of America’s Columbus School of Law, is not convinced that the Religious Freedom Restoration Act is really the best way to protect religious liberty.

“I have never particularly liked RFRA language, in part because it’s phrased as a balancing inquiry,” Destro said. “Basically, the government says, ‘We can override your religious freedom if we have a compelling interest.’ The problem with that is people who support same-sex ‘marriage’ will say to you almost invariably, ‘What could be more compelling than civil rights?’”


The Elane Photography Precedent

Destro noted that, in New Mexico, which has a RFRA law, the state’s highest court upheld the New Mexico Human Rights Commission’s 2008 decision to fine an Albuquerque couple who owned a photography company and refused to photograph a same-sex couple’s commitment ceremony. In a 2013 decision that even one judge described as “sobering,” the New Mexico Supreme Court said a state law prohibiting discrimination on the basis of sexual orientation and gender identity compelled the owners of Elane Photography to compromise their religious beliefs.

“I don’t think state-level RFRAs are the best response,” Destro said. “They’re better than nothing, but if the judiciary is hostile, then you’re going to need something better.”

The Elane Photography case also underscored the tension between laws intended to protect religious liberty and statutes designed to prohibit discrimination in public accommodations, housing and employment on the basis of sexual orientation and gender identity. Also known as SOGI laws, a growing number of municipalities and at least 18 states have passed anti-discrimination measures for homosexuals and transgendered individuals.

Some state Catholic conferences have warned those laws could force the Church and religiously affiliated agencies to provide services that conflict with their moral teachings and principles.

On Jan. 7, a Washington state court judge ruled that the state attorney general could sue Barronelle Stutzman, a florist who declined to design custom floral arrangements for a customer’s same-sex ceremony, for violating the Washington Law Against Discrimination and the state’s Consumer Protection Act. Stutzman, whose business has already been sued by the state, is represented by Alliance Defending Freedom.


Updates Needed?

Grabowski said SOGI laws often undermine state Religious Freedom Restoration Acts, which he said need to be updated.

“We need to pursue more clearly worded legislation that is going to specifically protect entities that engage in the wedding industry,” Grabowski said. “Yes, at the same time, it’s a kind of public accommodation, but we also point out that the close involvement a wedding vendor has with a couple, whether it be a DJ, a florist, baker or bridal boutique. The role they have is often intimately connected with the couple, and it is often a participation in the solemnization of the wedding vows.”

Scott, of Alliance Defending Freedom, said all that state freedom-protection laws do is get individual states back in step with the U.S. Constitution and federal law.

“These laws are really unremarkable in that way,” Scott said. “But the debate on one side has been remarkable for all the distortions and handwringing over horrors that never have, and never will, materialize.”

Register correspondent Brian Fraga writes from Fall River, Massachusetts.