Jenna Portnoy, In Va., bill pitting gay rights vs. religious freedoms advances, The Washington Post

Lawmakers in Virginia on Thursday reworked and advanced legislation that would prohibit the government from punishing religious organizations that discriminate against same-sex couples.

The bill is a more narrowly focused version of one that made waves last month after a gay delegate from Fairfax implored his colleagues in an emotional floor speech to consider the sweep of history and act with fairness. The measure passed the House anyway, but it hit a roadblock in the usually more moderate Senate.

Now lawmakers are back with a bill that the House sponsor, Del. C. Todd Gilbert (R-Shenandoah), said is an effort to craft a compromise while protecting the religious freedom of people who feel under attack by shifting cultural attitudes.

Gay rights activists and the American Civil Liberties Union of Virginia said the bill still amounts to a license to discriminate and would not pass constitutional muster. Gov. Terry McAuliffe (D) has said he would veto bills that seek to erode gay rights.

The bill passed a House panel Thursday afternoon along party lines, except for Del. Joseph R. Yost (R-Giles), who did not vote. The full House is set to vote on the bill Monday, followed by the Senate, where Sen. Charles “Bill” W. Carrico (R-Grayson) is the sponsor.

The bill and others like it around the country proliferated in reaction to the Supreme Court’s decision last summer affirming the right for gay couples to marry in all 50 states.

Although lawmakers could not cite any examples of discrimination against those with religious objections to same-sex marriage, advocates for the bill said it’s a preemptive strike against the potential for that to happen in the future.

“I’m not sure everybody believes that there isn’t a goal on the other side of this debate to circumvent what we believe to be our constitutional protections,” Gilbert said. “This is an added layer of protection centered around a current flash point in the debate concerning religious liberty which is same-sex marriage.”

Claire Guthrie Gastañaga, executive director of the ACLU of Virginia, said the free exercise of religious beliefs is already protected under the First Amendment, Virginia’s statute for religious freedom and the state’s Religious Freedom Restoration Act.

However, she said, the bill seeks to elevate one type of religious belief above all others.

“It’s unconstitutional on its face, in reference to only giving special privileges to people who have a certain belief, which is a belief about marriage,” she said. “It’s unconstitutional viewpoint discrimination. The government can’t do that.”

Previously, the bill protected discrimination against not just gay married couples, but also transgender people and anyone straight or gay who has sex outside marriage.

In another change, the earlier version applied to a long list of entities with sincerely held religious beliefs, including individuals, private companies and trusts. Now it says only clergy, religious organizations and anyone affiliated with those organizations can discriminate without fear of penalty, such as losing tax benefits, grants, contracts, loans, scholarships, certification, accreditation or jobs.

Article with links:

Erin Beck, Child abuse victim advocates concerned about ‘religious freedom’ bill, Charleston Gazette-Mail

People who work to prevent child abuse and help abuse victims in West Virginia are concerned that a bill up for a final vote in the Legislature on Wednesday could be used to justify child abuse in the name of “religious freedom.” The bill (HB 4012), which is similar to “religious freedom restoration acts” in other states, establishes a legal process for courts to follow when people or businesses believe the government is violating their religious beliefs. The law would establish a balancing test for courts to use when determining whether the person is being substantially burdened by government action, and whether the state has “compelling governmental interest” in ensuring the law is followed. Governmental actions could include civil rights laws, including local LGBT-inclusive nondiscrimination ordinances, so civil rights advocates fear the law will be used to allow discrimination against the LGBT community and other historically-discriminated against groups. Proponents of the bill have openly said support stems from opposition to same-sex marriage. Jim McKay, state coordinator for Prevent Child Abuse West Virginia, is worried about effects on another vulnerable group — children. He wonders if “governmental action” would also include laws to protect children. “We have seen the [Catholic] church protect abusers by moving them from parish to parish,” McKay said. “We have seen genital mutilation practices in some parts of the world. Closer to home, Dr. James Dobson (founder of the conservative Christian organization Focus on the Family) has compared raising a child to whipping a dog with a belt.” Last week, a Louisiana judge ruled that a provision of the state Children’s Code requiring priests and other religious leaders to report abuse is unconstitutional, according to The Advocate. A young woman said that when she was 14, she told a Catholic priest during confession that she was being abused by a 64-year-old parishioner, and the priest told her to “sweep it under the floor and get rid of it.” Although that case involved constitutional protections rather than a state “religious freedom” law, some advocates believe it highlights the potential problems with such laws. Emily Chittenden-Laird, executive director of the West Virginia Child Advocacy Network, said her group, which includes child advocacy centers in the state, had chosen not to weigh in on the debate over HB 4012, officially called the “Religious Freedom Protection Act.” They viewed its impact as outside the scope of child safety, she said. “However, in light of the recent Louisiana court ruling, which held the sincere practice of a religious belief above the safety and well-being of a child abuse victim, we are now taking a closer look at the implications of RFRA for child safety in West Virginia,” Chittenden-Laird said. “At this late stage in the game, we would ask the Legislature to step back and seriously evaluate all potential consequences of the bill, especially as it pertains to child safety.” West Virginia state law also requires religious leaders to report suspected abuse. Bryan Minor, spokesman for the Catholic Diocese of Wheeling-Charleston, said in an email that “the law recognizes the privilege of the confessional,” and that the diocese complies with the law. The diocese supports HB 4012. “The Catholic Diocese believes in religious liberty and its free exercise, and we maintain that religious freedom should never be the basis for discrimination,” Minor said. Others have cited “religious freedom restoration” laws during investigations into child maltreatment. In 2014, a judge applied the federal RFRA to a case involving possible child labor violations and ruled that a man didn’t have to answer questions about the Fundamentalist Church of Jesus Christ of Latter-Day Saints during his deposition, according to The Salt Lake Tribune. McKay said that while he doesn’t believe bill drafters meant to encourage child abuse, he fears it could be an unintended consequence. “It is already extremely difficult to substantiate child maltreatment and hold abusers accountable,” he said. “We should be very cautious about approaches that can make that process more challenging.”

See more at:

My testimony against WV RFPA



March 1, 2016

Members of the West Virginia Senate

State Capitol Complex
Charleston, WV 25305


RE:  H. B. 4012, relating to establishing the West Virginia Religious Freedom Protection Act

Dear Members of the West Virginia Senate:


Thank you for considering my testimony regarding H.B. 4012, which would endanger children and create new and insuperable barriers to common sense regulation of speech events, including parades, adult use zoning, and public gatherings.


By way of introduction, I hold the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University and I am a Resident Senior Fellow in the Program for Research on Religion and Urban Civil Society at the University of Pennsylvania, where I specialize in church/state relations and constitutional law.  I have published and lectured extensively in the field, as well as successfully litigated cutting-edge religious liberty issues.  Before joining the faculty at Cardozo Law School, I clerked for Justice Sandra Day O’Connor at the United States Supreme Court and Judge Edward Becker of the United States Court of Appeals for the Third Circuit.


H.B.  4012 would create a state Religious Freedom and Protection Act (“RFPA”) which is partially modeled on the federal Religious Freedom Restoration Act (“RFRA”).   RFRA established an extreme standard never before adopted by the Supreme Court, forcing the government to defend all laws that “substantially burden” religious conduct by proving the law serves a “compelling interest” in the “least restrictive means.”


The West Virginia RFPA takes the RFRA standard and then extends it to “expression,” which would upend the standards for government regulation affecting speech.   Cities and counties and the state would not be able to enforce content-neutral laws like parade permits, limited zoning for adult uses, or restrictions on the use of public parks without being subject to a lawsuit under RFPA.  The freedom of speech requires protection and common sense.  RFPA is a far departure from common sense that will turn well-settled rules regarding speech, parades, and use of public parks into fair game for any believer to challenge.  The largest problem is that the government will be required to show that it is using the “least restrictive means” for this believer, and courts have tended to interpret that to mean this one believer can get an exemption assuming everyone else obeys the law.  It is a prescription for anarchy:

H.B. 4012’s breadth is extraordinary – it could be applied to nearly every law in the state, from any source.  It is nearly impossible to comprehend the infinite number of religious claims that might be brought under its banner.  I have no doubt a religious entity will raise the same arguments recently deployed in Louisiana to block a priest’s obligation to report known and ongoing child sex abuse.


These RFRA-style bills, including H.B 4012, are a recipe for rolling back the laws protecting West Virginia’s children. While I believe that passage of a state RFPA is bad for all citizens of the state of West Virginia, at the very least, any bill should remove from its ambit laws for the protection of children.  That is because state RFRAs—including but not limited to H.B. 4012—for which the religious groups have heavily lobbied nationwide for decades–will, wherever they are enacted, make it easier for Churches and their clergy culprits to “win” sex abuse cases. It will aid the religious groups in refusing to report abuse, to cooperate in investigations of abuse, and to provide discovery in civil suits alleging abuse. Simply stated, being religious should be no defense to abusing or otherwise harming children.


As the law is currently drafted it will open the door to a myriad of religious defenses enabling perpetuation and the cover-up of child sex abuse and the commission of child abuse and neglect.  For example, West Virginia currently does not have a religious exception to vaccination requirements for school-aged children. H.B. 4012 as currently drafted will create one—endangering the lives of children across the state. For these many reasons, states such as Pennsylvania have chosen to exempt laws protecting children entirely form their own version of RFRA. See, 71 Pa. Cons. Stat. Ann. §§2401-2407 (enacted  in 2002).


Finally, from the taxpayers’ perspective, this is an invitation to litigation—particularly at the local level–which all told could last years and cost millions.  In this economy, why would a legislature enact a law that is so obviously going to be heavily litigated, particularly with the bill’s focus on laws that merely regulate religiously-motivated conduct, and not religious beliefs—which are already protected fully by the free exercise clause of the First Amendment and Art. III, Sec. 15 of West Virginia’s state Constitution.


The only limits to this law’s application are the boundaries of lawyers’ creativity in representing religious individuals and institutions. I urge you to reconsider the passage, but at the very least the contours, of this bill. H.B. 4012, particularly as currently drafted, is unnecessary, and a danger to the children of West Virginia. Thank you for your time and consideration of my views.


Janet Heimlich, Are Idaho lawmakers ready to legalize all religiously motivated child abuse?, Child-Friendly Faith Project

As Idaho legislators consider a bill that would protect children from egregious “faith healing” medical neglect, some have a lot to say about religious freedom.

Sen. Lee Heider, who chairs the Sen. Health and Welfare Committee, has repeatedly stated that he opposes a bill that would make it illegal for adults to deny children necessary medical care for religious reasons.

“I don’t find fault in the fact that, because of their religious beliefs, we should prosecute them if a child dies. You know, it’s a first amendment right, the freedom of religion.”

“I think everybody cares about the health of children,” Governor C.L. “Butch” Otter told the media, “but we also have to remember the very first amendment to our Constitution. . . . No. 1 was religion. . . . I think it’s important to remember that they didn’t do ‘em alphabetically.”

Given this allegiance to protecting people’s right to freedom of religion, I wonder if legislators would also support the legalization of all parenting decisions that are made in the name of faith, including those that jeopardize children’s health and safety.

For example, last October, members of the Word of Life Church in upstate New York attempted to “spiritually correct” two teenage boys by beating them throughout the night. The beatings—allegedly performed or witnessed by a handful of church members, including the boys’ parents and the church’s pastor—led to the death of one of the boys.

Some members of the Fundamentalist Church of Jesus Christ of Latter-day Saints have sexually abused girls through the practice of underage “spiritual” marriages. In 2011, eleven men in the FLDS were convicted of sexual abuse, including sect leader Warren Jeffs who is currently serving a sentence of life in prison in Texas.

Are legislators in Idaho ready to create a carve-out for religious groups that physically and sexually abuse children, as they have done for those who medically neglect children?

What about the centuries-old Jewish practice of Metzitzah B’Peh which is performed by rabbis of very conservative communities? This ritual, which occurs after circumcision. involves the rabbi sucking the cut penis. As a result, 13 newborns in New York City have contracted herpes since 2000. Two babies died and at least two suffered brain damage.

If a large Orthodox Jewish community were to move into Idaho and practice this ritual, would public officials allow it?

Some people believe their religion requires them to genitally cut young girls. Others deny their children an education on religious grounds. Both are illegal in Idaho. Are lawmakers ready to repeal those laws?

I think it’s safe to say the answer to these questions is no. Why? Because legislators know they have a duty to protect all children from abuse and neglect, regardless of whether such harm is justified with religious belief.

The line between religious rights and children’s rights was drawn back in 1944, when the US Supreme Court determined that “the right to practice religious freely” doesn’t include the right to expose a child to “ill-health or death.”

The importance of setting limits on religious freedom isn’t lost on Idaho Sen. Pro Tempore Brent Hill. A staunch believer in preserving and protecting religious freedoms, Sen. Hill is well aware that such freedom must be limited in a civil society.

“With these freedoms come also responsibilities,” says Sen. Hill on his website. “Religious liberty should never be used to endanger public health and safety or discriminate against others. True religion will always lift—fostering love, civility and compassion, even for those with differing viewpoints.”

Idaho legislators and Governor Otter should take a page from the playbook of one of their own and do what’s necessary to protect the health and safety of their most vulnerable citizens. Using faith to harm innocent children is not loving, compassionate, or civil.

Full article:

David Badash, Georgia Based Telecom Says ‘Time to Relocate’ After Lawmakers Pass Anti-Gay ‘Religious Freedom’ Bill, The New Civil Rights Movement

Georgia state senators on Friday passed a highly-controversial bill that would enshrine into law special protections for people of faith who are opposed to same-sex marriage and LGBT people. Erroneously named the First Amendment Defense Act (FADA), HB 757, according to legal experts, is likely unconstitutional and extends legal cover to both individuals and corporations – including taxpayer-funded non-profits – who wish to claim they have a sincerely held religious belief that prohibits them from serving LGBT people or same-sex couples.

The passage of the bill led at least one Georgia company to announce their intention to exit the Peach State.

“We are very saddened by the Georgia Senate which passed #HB757 also known as #FADA,” 373K, Inc. announced via Twitter. “It’s time to relocate.”
373K is a telecom company based in Decatur, Georgia. Co-founder Kelvin Williams stands by the tweet and its message.

“I’m gay, our CFO is gay, we have people from every walk of life working here,” Williams told The New Civil Rights Movement in a telephone interview Saturday afternoon.

“I’ve got Muslims, Buddhists, atheists here,” he added. “We’ve got great Christians working for us. They’ve never thought of not serving anyone – that’s not the message of Christ.”

“We don’t tolerate that crap,” he said, explicitly, of discrimination.

Williams says the anti-gay bill is “not conducive for Georgia,” lamenting that the “business environment in the state is not that great anyway.”

“It’s sad our state government wants to take us back in time,” Williams says. “I wish Georgia would wake up.”

“If you’re not a white married Christian heterosexual, prepare to be persecuted,” he warned.

Asked if he were concerned his tweet might lose business for his company, Williams said he doesn’t care, and that he doesn’t want to do business with those who support the legislation, whom he calls “fake Christians.”

373K Client Relations Manager Brian Greene echoed the sentiment, telling The New Civil Rights Movement that “what’s wrong is wrong and sometimes you have to take a stand.”

He denounced “uninformed governing bodies continuing to act this way,” adding he’s “uncomfortable” with the environment manifested by the bill.

Asked if 373K were truly considering relocating, Greene says they’re “definitely seriously considering” it, no longer feeling “comfortable” in “paying taxes to the State of Georgia.”

The tweet and the sentiments behind it might come as a surprise to those unfamiliar with the national battle over anti-gay “religious freedom” bills, which many have labeled licenses to discriminate, but to those who remember the international attention a similar battle in Indiana drew last year, it doesn’t.

The CEO of the $4 billion corporation SalesForce last year announced he was canceling “all programs that require our customers/employees to travel to Indiana to face discrimination,” after another “religious freedom” bill passed and GOP Gov. Mike Pence said he would sign it into law.

Other companies around the nation expressed similar condemnation of Indiana’s attempt to enshrine anti-gay discrimination into the law. Among them were Nike, Apple, Fortune 500 member Cummins, Eskenazi Health, Eli Lilly and Co., and NASCAR.

373K’s Kelvin Williams says, “we’re hoping Coca-Cola” takes similar steps in denouncing the legislation. The Coca-Cola Company, now 130 years old, is based in Atlanta, Georgia. On social media many have asked the $44 billion multi-national corporation to speak out.

Across Georgia, literally hundreds of top corporations that do business in the state are doing so, having signed the Georgia Prospers pledge.

“We believe that in order for Georgia businesses to compete for top talent,” the pledge states in part, “we must have workplaces and communities that are diverse and welcoming for all people, no matter one’s race, sex, color, national origin, ethnicity, religion, age, disability, sexual orientation, or gender identity.”

During debate on Friday, Democratic lawmakers warned their Republican colleagues who had fast-tracked HB 757 that the world is watching Georgia, and the anti-gay bill could cost the state millions in lost revenue from companies refusing to hold meetings and conventions there.

The bill passed by a huge majority, 38-14. The House, having already passed an earlier version of the bill will likely give it the thumbs up this coming week. GOP Gov. Nathan Deal hasn’t said if he would sign it but chances are strong he will.


Full article:

Marci Hamilton, The 2016 RFRA Decline Is Due to the Difficulty of Selling Discrimination and Child Endangerment as Good Policy, Verdict Justia

The pace of new state Religious Freedom Restoration Acts was slowed last year when Indiana experienced harsh pushback from major corporations unwilling to do business in a state that permits discrimination against LGBTQ customers. Mississippi had already enacted an extreme RFRA, but Indiana was forced to backtrack.

This year, Indiana was quickly out of the gate but then took a U-turn after it considered the worst recent development in RFRAs, which would have compounded the mischief caused by RFRAs and extended the same ridiculous test to the other elements of the First Amendment, like the freedom of speech. As I explain here, legislatures have no business monkeying around with the level of First Amendment rights, whether free exercise or free speech.

That left bills pending in Colorado, Georgia, Hawaii, Iowa, Maine, Michigan, New Mexico, North Carolina, Oklahoma, and West Virginia. The only activity has been in West Virginia and Georgia, which shows that the more we discuss and dissect the RFRAs, the worse they look. Members of Congress had this experience over the years with the federal RFRA, as I recount in a recently filed amicus brief for Rep. Bobby Scott (D-Va.) in theZubik v. Burwell case pending at the Supreme Court.

Georgia Senate Turns a Narrower Religious Freedom Bill Into a License to Discriminate

The Georgia House passed unanimously a Pastor Protection Act (HB 757) that basically copied what the First Amendment already guarantees: no pastor would have to officiate at any wedding to which he or she objects; business owners could be closed on the owner’s day of worship; and religious entities would not have to rent their space out for wedding ceremonies with which they disagreed. The bill had the advantage of letting members look like they were guaranteeing religious liberty and the virtue of not foolishly toying with the standards under the First Amendment.

But the Senate then beefed up the bill with rights for believers to discriminate against LGBTQ couples (SB 284): it now would “prohibit discriminatory action against a person who believes, speaks, or acts in accordance with a sincerely held religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman or that sexual relations are properly reserved to such marriage.” Translation: a believer won’t be “discriminated” against if he or she does not abide by public accommodations, civil rights, or fair housing laws applicable to LGBTQ couples. In its zeal to ensure that no good Georgian would ever have to deal with same-sex couples married or not if they did not want to, the bill also (likely unintentionally) opens the door to discriminating against unmarried heterosexual couples.

Here is why the demand by conservative Christians and other believers “not to be discriminated against” in this context carries an unavoidable stink. Their argument is that they do not want to be made “complicit” in or “participate in” same-sex marriages because they believe such marriages violate God’s law or rules or their religion’s beliefs.

I think this is a pretext to discriminate against the LGBTQ community. Why? Because there are likely many whose conduct violates their faith and these believers gladly take their money in the marketplace.

For example, how do these believers weed out the other “undesirables” among their customers: the pedophiles, the husband who beats his wife, or the hit-and-run driver? I assume that each of these behaviors violates their faith, and so, frankly, they need to explain why they are golden with baking a cake for the marriage of a pedophile to a spouse with children but can’t abide to bake a cake for a same-sex couple. Has such an objection ever even occurred to them?

Do they scan the headlines and police news blotter each morning to create a list of people they will not serve that day based on who was charged with domestic abuse or drunk driving? How about those believers of faiths that disapprove of divorce, contraception, or abortion? Do they deny service if they overhear a customer saying they were “guilty” of any of these sinful behaviors?

The short answer is: “No.” They serve everyone who comes through their door without reference to their private lives except LGBTQ individuals. That is the very essence of invidious discrimination. It is the spirit of the Supreme Court’s decision in Romer v. Evans. Let’s face it, the more “religious liberty” is invoked for these purposes, the less it looks like religious liberty and the more it resembles invidious discrimination.

West Virginia, Its RFRA, and the Threat to the Health of Children

West Virginia is also seriously considering a more comprehensive RFRA, which passed the house already. The stink of discrimination is all over it as well, as one Episcopalian priest pointed out. West Virginia’s bill invites not only discrimination, but also child endangerment.

West Virginia has led the country in the protection of its population from communicable diseases, unlike California, whose previous vaccination exemption was wide enough for anyone to refuse to immunize their children from common communicable diseases. In California there have been serious outbreaks in recent years, leading the state to backtrack on its exemption. In contrast, West Virginia has historically given parents no choice about vaccinations, but a West Virginia RFRA could change that.

The devil is always in the details, and that is true 10-fold when it comes to a RFRA, which is a form of “blind accommodation” in that you won’t know what mischief it causes until it happens. There is little question that the West Virginia RFRA would open the door for religious believers to refuse to vaccinate their children. True, vaccination serves a “compelling interest,” but what is the “least restrictive means” for the government to serve that end? I have no doubt that a judge could conclude that letting select religious parents avoid vaccination is the “least restrictive means” on the theory that everyone else will vaccinate their children. What California should have taught everyone, though, is that once that no-vaccination door is open, it is hard to shut it, and the cost is the re-introduction of previously eradicated dangerous diseases.

LGBTQ and other civil rights groups are fighting the good fight against RFRAs and their progeny like Georgia’s latest bill, but the more capacious RFRAs don’t stop at discrimination. They also put children at serious risk. West Virginia is the one state now taking seriously a bill that both discriminates and endangers.

It is no wonder that these bills are locked up in committee in the other states where they have been introduced.


Article with full links: