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"Religious Freedom" - The Thing That Couldn't Die


Yesterday I finished a trial that I "won" with a verdict in my client's favor.  However, I "lost" because the result wasn't what my client hoped for.  I was kind of bummed out but came to work my usual chipper self because it's spring and hope, er, springs eternal. 

That was until I read this morning's Charleston Gazette-Mail and recalled this cinematic masterpiece.  Ok, that's not true because I'd never even heard of that movie before today.  However, I found it with my crack research skills and it really does remind me of the Gazette news article that made me feel like a loser all over again (full disclosure - I was also yelled at by my 10 year old daughter who basically told me I would ruin her life if I went into her school this morning to ask one of her teachers a question.  That probably made me feel kind of surly as well).

I'll summarize the news piece:  several Republican candidates (who I'm not focusing on because they are Republicans, but no one else was interviewed) in the upcoming primary election were asked about WV's failed Religious Freedom Act ("RFA").  All those interviewed said they support last session's proposed bill and will vote for it if elected. 

The RFA passed the Republican controlled WV House but in a well-publicized outcome was defeated in the Republican controlled WV State Senate.  Some Republicans support it, some (like myself) don't.  Before the Senate killed the RFA I wrote about it here (editor's note - the RFA was formerly called the Religious Freedom Restoration Act; "Restoration" was dropped when everyone realized there was nothing to restore). 

A big issue of discussion in the Gazette piece was PayPal's decision to cancel a new global operations center in Charlotte, NC after that state passed its own RFA this year.  The NBA, large cities that send employees to out-of-state conferences, etc. have also threatened cancellations and boycotts.  So did Bruce Springsteen, whose disaffected song Born in the USA has been strangely co-opted by scores of Republicans and Democrats alike as an election anthem.   In response NC's governor backtracked a little but the state is still mired in controversy. 

Georgia's Governor vetoed that state's recently passed RFA after an outcry.  Mississippi also passed a RFA this year but apparently no one had plans to open a global operations center there anytime soon (helping solidify some WV'ians sad battle cry of "Thank God for Mississippi").  People have mostly just been making fun of them.  We narrowly escaped similar and familiar satire in the Mountain State.

Here I'll look at some of the "arguments" made by the candidates in support of WV's failed RFA.  I put the word arguments in quotes (air quotes if we were talking face-to-face) because the secondary definition of an argument is "a reason or set of reasons given with the aim of persuading others that an action or idea is right or wrong."  It appears to me the candidates didn't exhibit much "reason" in the article so I assume they operated off of the primary definition, which is, "an exchange of diverging or opposite views, typically a heated or angry one."

The first quoted argument was "it's not a license to discriminate."  Well, actually it is.  As I wrote in my last blog on this, there are only around 9 WV cities and towns that provide legal protection for LGBT's.  The rest of the State provides no legal protection for those groups.  This means many/most WV employers can fire someone solely because they are gay and face no legal consequences in much of the State (which is true in lots of other places, not just WV). 

In Charleston, where I live and work, we have had a non-discrimination ordinance in place for nearly 10 years.  The proposed RFA would essentially invalidate it because anyone could sue the City and claim the ordinance violates their religious beliefs.  If the City loses it has to pay all the legal costs.  Charleston almost surely would not take that chance and would therefore almost never seek to enforce its own ordinance that its citizens supported. 

The proposed RFA would therefore provide a license to discriminate because a city like Charleston, for example, would rarely if ever enforce its LGBT protections in the future.  Some proponents of the RFA know this and have stated as much.  I'm not linking them here because I don't want to give them airtime on my page.  You can "trust but verify" yourself if necessary (I can't help but get a little nostalgic while watching that video).

The second argument was in response to the question of whether one candidate would welcome PayPal to WV.  He said, "Absolutely not. They're feeling the pressure and not willing to stand up for religious rights."  This is an interesting answer and really cuts to the heart of this controversy. 

The candidate accused PayPal of not standing up for "religious rights."  The question then becomes, whose rights is PayPal trampling?  How about a religious person who supports the LGBT community?  How about a religious LGBT person themselves?  Or how about a person who is not religious at all, which is also allowed in this country? 

In short, the candidate, who is running for a constitutional elected office, rejects PayPal because the company does not overtly support HIS religious rights.  This may very well serve as the platform for a public policy or advocacy group.  It seems misguided for a potential elected official, at least according to this.

That same candidate then called PayPal "hypocritical" and argued, "They're operating in 25 countries that persecute gays, that hang them in the streets...Yet they're pulling out of North Carolina? Shame on them."  This, in the kindest terms I can think of, is what we lawyers call a straw man argument.  In everyday households it often goes like this, "Why do I have to clean my room?  My brother's room isn't clean?"  In other words, "Maybe I don't really have a leg to stand on but because somebody else is doing something wrong then I can do something wrong, too."

As best I can tell this claim originated with Franklin Graham, the son of Rev. Billy Graham (who I think is pretty awesome, btw).  By his own logic Franklin Graham must believe that his father is a communist who supports human rights abuses.  After all, the Rev. Billy Graham conducted services in countries around the world in places like the former Soviet Union, China, Ghana, Egypt and even Switzerland (just seeing if you're still paying attention on that last one).  If PayPal supports the persecution of gays because it does business in Saudi Arabia then Billy Graham must, unfortunately, support Ivan Drago over Rocky Balboa

Or, if you are a sensible and thoughtful person, what you realize is that Billy Graham went to places like China to spread his message and effect change.  He couldn't fully express himself while in China because he might have gotten in trouble.  When he returned home, to what I believe is the greatest country in the world, he was free to do so.  He could live wherever he wanted, which happens to be NC. 

PayPal is a business.  It is supposed to make money.  It cannot force democratic reforms in Saudi Arabia.  It could theoretically choose not to do business there whatsoever.  However, operating in Saudi Arabia does not mean PayPal hates Middle Eastern gays any more than the Rev. Billy Graham was cheering for the Big Russian in Rocky IV. If an American business can't advocate policy changes in a foreign country does that mean it should just keep its proverbial mouth shut in the United States?

Thankfully things work differently in America than Saudi Arabia.  PayPal's CEO and employees are free to, and in fact should, exercise civic and constitutional freedoms to effect democracy.  A lot of Republicans seemed to support companies throwing their hat in the political ring as long as it means increased campaign donations (see, Citizens United).  I doubt any of the candidates in the Gazette piece will call Koch Industries hypocrites for its involvement in American democracy while it operates international offices in the Middle East.  Nor should they.

The next candidate argued, "The bill actually fits in with the values these companies are purporting to hold. I think they just don't realize it."  Ah, I see what he did there.  Actually I don't.  I mean I guess what he's claiming is that companies like PayPal (and the nearly 400 others that signed onto Obergefell)...don't actually know what they are doing?  I'll just leave this one alone.

The last argument, by another candidate, was that the failed RFA could "spur" people to come to WV rather than "scare them away."  "We should be protecting religious minorities, and this bill did that[.]"  As I wrote in my last blog, nearly 90% of WV'ians identify as Christians. 

Which religious minorities, exactly, is he seeking to protect?  The less than 1% of American Muslims?  Doubtful.  Which religious minorities does he think will move to WV if we pass a law that prevents the enforcement of local anti-discrimination ordinances?  To answer that question a different way, which oppressed religious groups are flocking to Mississippi to bolster that state's economy?  I didn't include a link proving his point because, well, I couldn't find one. 

Here's what we do (or are supposed to) as lawyers.  We use facts to prove a case.  If the RFA were a case here are the facts.  Many, many, many large employers oppose new versions of RFA's popping up in places like NC, MS, GA and IN.  When states pass those RFA's anyway they are costing themselves jobs and non-tangible but valuable currency like reputation. We know that LGBT rights are steadily trending towards more inclusion, especially among young people, and most Americans favor that trend.

Here are some more facts.  WV has a bad economy.  WV is hemorrhaging  young people.  In short, we need jobs.  We need to find a way to keep young people, who won't have the option of mining coal even if they want to.  We need them to stay here and maybe one day work for employers like PayPal, Apple and Google.  The fact is those types of employers oppose our failed RFA. 

The alternative is we can rely upon political anecdotes at best or lies at worst.  There is no factual basis to claim that the failed WV RFA was meant to protect religious "minorities."  There is no factual basis to claim it will encourage people to move to WV (much less anyone who is bringing jobs with them).  There is no factual basis to claim that companies who oppose the RFA don't actually know their own anti-discrimination policies.  All of these arguments exist in thin air.

Here is our State's real and potentially painful choice:  we can continue to reject last year's failed RFA.  We can at least put ourselves in the market for good-paying jobs from the hundreds of large employers who oppose that law.  Or, we can circle our wagons, tell those employers we don't want them and their jobs, tell LGBT's who already live/work here to leave.  We can continue saying goodbye to our young workforce who mostly want nothing to do with these kinds of laws.  Frankly, how is that even a choice?

If this were my closing argument I'd tell you that these politicians are doing and saying exactly the opposite of what this State needs.  That is if everyone agrees we need jobs.  The facts of the case are undisputed - bringing back the failed RFA is bad for WV.  It's bad for our economy.  It's bad for our reputation.  It's bad for our young people.  It's bad for our law-abiding, hard-working LGBT residents.  As Kevin Bacon would say (at the 0:47 mark), the facts of the case are these.  And they are undisputed.

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