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The WV RFRA: Freedom of Religion or Freedom to Discriminate?

While the State of West Virginia is struggling with a $353M budget shortfall, which is projected to grow next year, much of our focus has been on anything other than financial legislation. "English only", concealed carry firearms and the eponymous "Religious Freedom" bills are garnering widespread attention.

I'm going to focus on one of those bills, the proposed Religious Freedom Restoration Act ("RFRA", HB 4012). I do so as someone who spends a fair amount of time at the Capitol talking to legislators.  I am also a lawyer who, in part, handles discrimination cases.  I'm writing this because, as part of my job, I've got the time and need to keep up with bills like the RFRA. 

Supporters say it guarantees their right to practice their faith. Opponents say it is a thinly veiled path to discrimination.  This particular bill could be the subject of short novel so trying to briefly analyze it in a blog is tough. But here we go.

Well, I'll start right away by digressing. Two other recently controversial bills were "right to work" and "prevailing wage." They were passed, vetoed by the Governor and then passed again by the Legislature over those vetoes. Some legislators are doing exactly what they are accused of - busting unions to sap funds from their political opponents.

However, I know some other legislators have good motives. Even if you disagree with them the latter group is trying to do something new as an economic solution for a State with a really bad economy. Those two laws can rest upon legitimate philosophical differences.

I will contrast them below with the pending WV RFRA. HB 4012 recently passed the House with over a dozen Democrats and most Republicans voting favoring it. Its fate now rests in the hands of the WV Senate, which has an 18-16 Republican majority. Although they haven't publicly said so my educated guess is at least a few WV Senate Republicans don't like this bill and want to vote against it. Likewise, some conservative Senate Democrats surely like it.

Regardless of which party should get the credit or blame the history behind the federal version passed in 1993 versus the State version at issue here is radically different. Again, doing my best to "blogify" a complex issue, the 1993 RFRA passed the U.S. Congress almost unanimously. It was then signed into law by Bill Clinton a year after he took office by "feel[ing] your pain."

The federal RFRA was a reaction to a 1990 U.S. Supreme Court case making it easier for the government to pass laws arguably restricting your religious beliefs. (BTW - that 1990 case making it easier for the government to restrict your religion was authored by...wait for it...conservative icon Antonin Scalia. Wrap your head around that, or, put it in you peyote pipe and smoke it since the case was about a Native American's right to imbibe in the ceremonial drug). That 1990 case was controversial since it effectively overturned two 1960's era cases making it more difficult for the government to burden your religion.

In other words, it was not until the liberal 1960's Supreme Court that the government faced "strict scrutiny" when burdening an individual's religion. Strict scrutiny is the toughest hurdle for the government to clear when it is sued on constitutional grounds. Most laws subject the government to what's called a "rational basis" test, which is easier for the government to satisfy.

If you care to you can read more on those tests elsewhere. They can make your head spin. Suffice to say it is much harder for the government to uphold a statute under "strict scrutiny" than "rational basis." The WV RFRA seeks to establish strict scrutiny in this State, similar to how it exists under federal law.

Recapping: up until the 1960's the government could and did pass religious restriction laws with only moderate to mild judicial review. In the 1960's the liberal Warren Court strengthened religious protection from government action. In 1990 the most conservative Justice of our generation authored an opinion weakening your religious protection.

In 1993 a Democratic Congress and President again increased your religious protection. In 1997 the U.S. Supreme Court said the 1993 federal RFRA did not apply to the States. Since then around 21 states have passed various forms of RFRA's, lately as part of a conservative agenda. You following the political consistency behind all of this? Me neither.

Anyway, that gets us to 2016 West Virginia. This is my home State and the place I've always lived aside from 4 years of undergraduate school. Nearly 90% of our residents identify as Christian/Catholic. Over 90% of us are white. With that overwhelming majority of people identifying as similar we now find ourselves in need of religious protection. It is therefore logical to ask how this happened and from whom do we need protecting?

That answer is simple - Hobby Lobby (2014), Obergefell (2015), gays, lesbians and transgender (to save space and keep your attention I'll generally refer to these latter groups under the term "sexuality"). There is no evidence the 1993 federal RFRA was about sexuality. Likewise, no one can legitimately argue the 1993 RFRA was meant to create the Hobby Lobby case, which granted an employer the right to deny certain types of contraceptive care to employees.

Hobby Lobby is more nuanced than many like to admit. Despite its departure from established law I don't entirely disagree with the case. That's for another day. Regardless, Hobby Lobby opened the door to new forms of religious objection never previously available to employers.

Of course last year gave us one of the most controversial social issue opinions in years, if not since Roe v. Wade, in the form of Obergefell. That case provided the legal authority for same sex marriage. Some religious groups celebrated the Hobby Lobby case one year only to feel the sting of Obergefell the next.

The 2016 WV RFRA is now a priority in our State Legislature. If I had more time and space I'd describe how a similar bill passed the 2012 Democratically controlled House. The point is, this is a not simply a Republican versus Democrat issue. You really do have to take this one politician by politician.

To date, unless I've missed someone, I've only seen one State-wide group actively support the RFRA. To the contrary, a broad base of educational institutions, church groups, business groups and even hospitals has spoken against it. This is in-line with the nearly 400 national businesses who signed on in support of the same sex couple in Obergefell. Despite this unusual and possibly unprecedented alliance the State RFRA easily passed the WV House.

In fairness, some things must be said to dispel myths about the pending bill. First, it is not just like the RFRA that passed last year in Indiana. It is narrower in scope. Moreover, it does not provide an automatic right to discriminate. That said, no one can guarantee how a court will eventually interpret the law. Its effect, much like the 1993 federal RFRA, could be much different than anticipated.

I feel confident the pending RFRA will not lead to some of the worst-case scenario "click-bait" results (child marriage, return to Jim Crow era policies, etc.). However, to give only one area of concern, a sentence of the bill reads, "Nothing in this article shall be construed ...to constitute a defense to any claim based upon a refusal to provide emergency medical services." Hey, that sounds great. A lesbian, pregnant Jew who complains of chest pain after eating bacon cannot be denied emergency medical care by a fundamentalist Muslim (just stay with me for purposes of illustration).

However, does the failure to mention any other type of healthcare mean doctors can refuse routine services based upon religious preference? Could an out-of-wedlock mother (a "sinner" to some) be denied services by the only primary care physician within 30+ miles of her rural home? You tell me. What I see for now is a bill that says doctors must still provide emergency care, but that's it.

We also have to ask if this bill is a solution looking for a problem. As it stands only about 9 cities and towns in the entire State have non-discrimination ordinances protecting sexuality. There is no State-wide protection. If you work in Charleston but live in a neighboring community your gay co-workers have legal protection but your gay neighbors do not. The pending RFRA trumps the local non-discrimination ordinances and essentially makes them unenforceable.

This is contrary to the normal Republican mantra of smaller government. Here, we have the "Big House" (the Capitol) telling local municipalities how to conduct their affairs. While Republicans across the country are telling Washington, D.C. to get out of our lives (with which I often agree, thank you very much) our State government is telling local communities what's best for them (no thanks).

I never advocate for selling out to business. However, in this case our Legislature is pushing a law that contradicts what I'm betting are the vast majority of large employers' mission statements. We are financially upside down and passing several controversial, business friendly measures. Our fingers are crossed that progressive large businesses will notice us from across the room and invest in our State.

At the same time we send the message that we oppose the anti-discrimination policies of those same businesses. Nobody wants to date someone who can't make up their mind. Right now WV can't decide who it is.

Maybe they never will but why would companies like Apple, Google or GE want to establish or expand a presence here when we oppose what they support? To those who say there are other business friendly states among the 21 or so with RFRA's you still have to look at the overall history of the issue.

It is clear that what's happened in places like Arizona, Indiana and now WV is a direct response to gay rights and, ultimately, Obergefell. You simply cannot tell people you are reserving the right to discriminate against them while also asking them to give you their business.

Perhaps most importantly this bill is, well, un-American. Listen, I agree with those who say this country was founded upon Judeo-Christian principles. We have freedom of religion, not freedom from it. I go to church. I believe in Jesus.

What I also know from reading as much as I can about them is that the Founding Fathers did not agree upon one another's religion. Were most of them Christian? Yes. But their belief in what that meant was richly different and complimentary to one another's views.

Recognizing those differences gave us our Bill of Rights. That document, unlike any before it, protects the minority from the majority. In this case 90+% of West Virginians are white Christian/Catholics. Who are we protecting ourselves from?  Who is discriminating against us? The 10% or less of the population who may be gay, many of whom themselves are Christian/Catholics? Or are serving or have served in our military? Or who just quietly live their lives by going to work and paying their taxes?

I have a lot of other thoughts. I will close out with just a few.  Those who claim this bill has nothing to do with hate...you may truly feel that way. I know some supporters who are outstanding people. They would personally help anyone.

That doesn't change this bill's message.  The message isn't freedom.  It's exclusion.  Our State is in desperate need of economic solutions. In response we are telling the country's largest employers that we aren't like you and we don't like your policies. 

I'm not concerned about anyone taking away my religion without this bill.  What concerns me is the thought of my young kids one day being taken away from this State because we have no good jobs.  If we keep focusing on our differences with the companies who can provide them I'm worried we never will.


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