Rules Are for Schmucks: RFRA on the Run?

The State Capitol Building in Charleston, WV (Photo by O. Palsson)

For those of us past a certain age, the phrase “almost heaven” conjures up West Virginia, per the John Denver song. For those of us who oppose special legal privileges for the God industry, the phrase is especially apt this month. Because the West Virginia legislature just defeated a “Religious Freedom Restoration Act” generally similar to the law that created so much controversy in Indiana last spring.

We don’t win all that often, so this one is worth savoring.

A Religious Freedom Restoration Act, or RFRA, is a state-level law mimicking the federal RFRA that turns on its head the simple proposition of equal application of the laws. Some people are more equal than others, in RFRA-land, and religious zealots are the most equal of all. RFRA privileges cover an enormous scope of activity, but the most controversial at the moment is the demand that businesses and individuals have a religious right to be able to discriminate against LGBTQ people. A few years ago, the same folks were demanding the religious right to discriminate against black people—as any broadly worded RFRA would give them.

In West Virginia, the business community—including the likes of AT&T, Dow Chemical, Marriott, and Embassy Suites—was solidly against the RFRA bill. Seems most businesses like the idea of having larger, rather than smaller, markets for their goods and services and dislike the idea of the local God expert leaning on them to deal only with the “right” sort of people. Having a nondiscrimination law to hide behind when the pastor comes calling can be useful. “Legislation that would permit discrimination against any of our employees or customers conflicts with our core values,” said AT&T spokesman Daniel Langan.

West Virginia’s medical community was against it also. Those who have to deal with sick kids whose illness could easily have been prevented by vaccination tend to favor uniform rules. Those who have to deal with women’s health issues want it to be harder, not easier, for a woman’s employer to interfere with her private medical choices.

West Virginia’s governor, Earl Ray Tomblin, was against the bill also, threatening to veto it if it reached his desk. To some extent, this was because of the threat of boycotts against West Virginia along the lines that wrought so much havoc in Indiana. All three Democrats who are vying to succeed Tomblin as governor opposed it as well, as did the leading Republican candidate for governor. The Democratic leader in the Senate, in his nineteenth year there, said “It’s probably one of the proudest days I have served in the Senate when we sent that kind of a signal clearly, not only to our colleagues across the hall, but to the people of the state, particularly our young people who, I think, need to know that leaders of their state stand for each and every single one of them.”

The news elsewhere is more mixed. In Missouri, a religious privilege constitutional amendment was just passed by the State Senate, and now moves to the heavily Republican House of Representatives where approval seems likely. But the largely Democratic opposition put up a terrific fight, far more tenaciously than in nearly any other RFRA state, going to the extreme of staging a lengthy filibuster. The battle was described as “the longest continuous debate in recent Missouri history.” Breaking that filibuster required the sponsors to significantly restrict the scope of what was already a narrow amendment. The amendment as passed only applies to permit discrimination in connection with a same-sex wedding or wedding reception, and even then only for services involving “expressional or artistic creation.” I’m sure lawyers will have a field day interpreting that phrase, but some of us think that the pizza shop owners who got all the press (plus $800,000) for announcing they would never cater a same-sex wedding may not qualify under this standard.

Missouri’s governor Jay Nixon opposes the measure but is powerless to veto it. As a constitutional amendment, it will go straight from the legislature to the voters. Even though Gallup lists Missouri as the sixteenth most religious state, I suspect there will be a terrific battle in November, with a final outcome closer than you might think.

Georgia has been struggling with a RFRA proposal as well. As elsewhere, the business community is lining up solidly against it, while the God salesmen are all for it. What’s counter-intuitive about the debate in Georgia is the role of its governor, Nathan Deal. Deal is a conservative, Southern Baptist Republican—in fact, he switched to the Republican side in 1994 because he was so enthralled with Newt Gingrich. If you read a list of his policy positions, you won’t find much to like, except for one: he’s come out flatly against expanding the Georgia religious privilege law to explicitly permit discrimination against same-sex couples. This has earned him the enmity of, among others, Tony Perkins’s Family Research Council.

Here’s the argument Deal made:

What the New Testament teaches us is that Jesus reached out to those who were considered the outcasts, the ones that did not conform to the religious societies’ view of the world….We do not have a belief in my way of looking at religion that says we have to discriminate against anybody. If you were to apply those standards to the teaching of Jesus, I don’t think they fit.…We have a belief in forgiveness and that we do not have to discriminate unduly against anyone on the basis of our own religious beliefs. We are not jeopardized, in my opinion, by those who believe differently from us. We are not, in my opinion, put in jeopardy by virtue of those who might hold different beliefs or who may not even agree with what our Supreme Court said the law of the land is on the issue of same-sex marriage. I do not feel threatened by the fact that people who might choose same-sex marriages pursue that route.

There’s a lot of good, along with a lot of bad in the Bible. It’s pretty amazing when someone with a background like that of Nathan Deal uses the Bible to justify a humanist position bound to be unpopular with his base.

Stepping back from political courage, we can consider Florida, where the legislature just passed a meaningless pander of a bill “clarifying” that members of the clergy don’t have to perform weddings if they don’t want to. Well, duh. I’ve never heard of anyone who thinks they do, or that any attempt to force them to would pass the laugh test in any court. Florida may as well have passed a bill “clarifying” that clerics don’t have to eat breakfast, either. Next year, they will pass a law called the “We Really Mean It” bill, and the year after that they will follow up with “We Really, Really Mean It.”

But I’m not going to let the news from Florida dim my moment of West Virginia joy. I think I’ll go have a Mountain Dew, with a few extra ingredients to celebrate.