Missouri Republican’s religious freedom bill creates concern about discrimination

03/04/2014 6:45 AM

03/04/2014 6:45 AM

Republican lawmakers in several states have backed away from efforts to allow businesses and individuals to refuse service to gay people on religious grounds after Arizona Gov. Jan Brewer vetoed such a measure last week.

But Missouri Sen. Wayne Wallingford, R-Cape Girardeau, has stood firm in support of his bill, which would extend the concept of religious freedom to cover Missouri businesses and individuals.

On its face, Wallingford’s proposal would extend protections for religious expression into lawsuits not involving the government. It would also prohibit any law from unduly burdening a person’s religious freedom.

However, there is fundamental disagreement over the bill’s ramifications. Critics say that this would open the door for businesses — including restaurants, hotels and any other business that serves the public — to discriminate against anyone based on their religious beliefs.

Wallingford insists that his bill wouldn’t promote discrimination. “My bill is not about any gender or ethnicity or any sexual orientation; it’s about religious freedom,” Wallingford said. “Just because you have a religious belief — and a substantial religious belief — doesn’t mean you’re protected” under the bill.

In fact, Wallingford’s bill specifically prohibits the religious freedom defense from being cited in discrimination lawsuits. But the section of state law the bill refers to defines discrimination very narrowly as employment or housing discrimination, rather than the broader category of “public accommodation” that would include most businesses.

Wallingford said he merely wanted to update state law to provide additional protections for individuals and business owners to practice their religious beliefs. But under his bill, religious belief could be used to defend against lawsuits that the government isn’t involved in — for example, lawsuits between a customer and a business that refused service. That’s true in laws proposed in Ohio and Georgia as well.

Kerry Messer, president of the Missouri Family Network, a group that advocates for “traditional Missouri families,” supports the bill and was involved in introducing it. He said it had been misrepresented because of the national media attention garnered by a bill introduced in Kansas.

Messer said protecting individuals from private lawsuits not involving the government was necessary. If an individual decided to sue a private civic group that prayed before meetings in a public area, he said, right now the group’s religious freedom would not be protected in the lawsuit.

The new measure “doesn’t prevent the lawsuit and doesn’t guarantee a win of a lawsuit,” Messer said. “Without (the Religious Freedom and Restoration Act) applying in private cases you have no religious liberty.”

Wallingford said that his bill was “loosely based” on the Arizona bill but that the Arizona measure went much further than his. The Arizona bill more broadly defined state action and wouldn’t have excluded the law from being used in discrimination lawsuits.

Wallingford was one of the Republican senators who voted at the end of last year’s legislative session in favor of workplace protections for lesbians and gays, a historic victory for gay rights advocates in Missouri even though the House did not pass the bill. He said he still supported such protections and believed his bill had been misinterpreted.

“I wish they would read it,” Wallingford said. “My bill really has nothing to do with discrimination.”

Opponents of the bill disagree.

“It basically sets aside public accommodations and allows people to discriminate based on their religious affiliations,” said A.J. Bockelman, executive director for PROMO, which advocates for lesbian, gay, bisexual and transgender equality. “Effectively, religious liberties are put at a higher standard than other protected classes.”

Bockelman said he thought Wallingford was a principled statesman who was being misled by what he called “evangelical entities” about the effects of the bill.

Senate Minority Leader Jolie Justus, D-Kansas City, said the bill could infringe on nondiscrimination policies at private companies and those contained in local ordinances.

“As the rest of society is moving forward on ending discrimination against LGBT individuals, this bill seems to be crafted in a way to move in the opposite direction,” Justus said. She said she was willing to work on finding a compromise to ensure religious freedoms are protected but that won’t roll back protections for other groups.

If the bill were passed, said Jeffrey Mittman, executive director of the American Civil Liberties Union in Missouri, “I can now claim that blacks cannot be allowed in my hotel. Not the best public policy, is it?”

Wallingford said he didn’t believe the courts would allow that to happen. “I just can’t see how anyone could say that since you are too old or not the right ethnicity or sexual orientation that you can’t stay at my hotel,” Wallingford said. “I would think it would be very, very hard to defend that.”

Messer said the bill should be changed to make sure “religious liberty” could not be used in any type of discrimination. Twenty-one states have laws banning discrimination in public accommodations on the basis of sexual orientation. Missouri is not one of them. So there is no law preventing a business owner from refusing to serve, hire or continue to employ someone because of their sexual orientation.

A lawsuit against a florist who refused to provide flowers for a same-sex couple’s wedding was filed in Washington, where the anti-discrimination laws include sexual orientation protections. A similar suit against a bakery was filed in Colorado, another state that bars discrimination on the basis of sexual orientation.

Wallingford said his bill could help protect businesses with strong religious beliefs in such situations if, in the future, Missouri protected sexual orientation.

It’s not clear if Wallingford’s bill has significant support; Republican House and Senate leaders told reporters they had not read it. A spokesman for Gov. Jay Nixon said in an email that he supported protections against discrimination for LGBT individuals: “Gov. Nixon believes we should be working to end discrimination, not passing unnecessary bills that would condone it.”

The bill is SB 916.

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