The national controversy over the Religious Freedom Restoration Act signed by Indiana Gov. Mike Pence has reignited the debate over the meaning of a 2007 Virginia statute.
It also has renewed discussion about the fine line between protecting religious liberty and what some view as a license to discriminate against gays and lesbians.
The Indiana law, criticized by the state’s business leaders as discriminatory and as a detriment to hiring the best and the brightest for their companies, this week prompted Gov. Terry McAuliffe to try to lure its businesses to the commonwealth.
“In light of that responsibility and recent events in Indiana, I would like to welcome you to take advantage of Virginia’s open, inclusive and thriving business environment,” McAuliffe wrote in an open letter in the Indianapolis Star.
“In Virginia, we do not discriminate against our friends and neighbors, particularly those who are supporting local businesses and generating economic activity,” he wrote.
McAuliffe spokesman Brian Coy on Thursday clarified that the governor didn’t want to downplay discrimination against gays and lesbians in Virginia, “but that doesn’t mean we aren’t in a place where we’re making serious progress.”
Del. Bob Marshall, R-Prince William County, who co-authored Virginia’s 2006 same-sex marriage ban, mocked the governor’s effort in his own letter to the Indianapolis paper.
Marshall called it ironic that McAuliffe attempted to protect Indiana businesses from a law that he said Virginia has had on the books since 2007, without harming the freedoms of gays and lesbians in the commonwealth.
“Virginia has the same law [and] the sky did not fall,” Marshall wrote.
“Because even though we have a law just like Indiana’s, LGBTQ Virginians have jobs, eat at lunch counters and in restaurants, go to movies and shopping malls, own businesses, buy, drive and own cars, sit anywhere they want on a bus, take vacations across Virginia, buy stock, join country clubs, attend Virginia colleges.”
Victoria Cobb, president of the conservative Family Foundation of Virginia, said that with his letter, McAuliffe conceded that there is not discrimination of LGBT Virginians.
“It’s very hypocritical of the governor to come to the General Assembly and say we need a law elevating sexual orientation to a protected class and then go to Indiana and say that we don’t discriminate,” Cobb said.
Virginia is one of 19 states that already have laws like Indiana’s Religious Freedom Restoration Act, Cobb said.
“Our law has served us well, simply providing people of faith their day in court,” she said.
Modeled after federal law
The laws in these states were modeled after the federal Religious Freedom Restoration Act of 1993, which was designed to ensure that “interests in religious freedom are protected.”
Then-Gov. Tim Kaine, a Democrat, signed Virginia’s law in 2007. The law says that no government entity shall “substantially burden a person’s free exercise of religion” unless it can demonstrate a “compelling governmental interest” for enforcing such restriction.
But some legal experts disagree that Indiana’s law — which would allow a baker to refuse making a cake for a same-sex wedding — mirrors what is in the Virginia Code.
The Virginia law “was about what the government can and cannot do in terms of passing laws and rules that burden your free exercise of religion,” said Claire Guthrie Gastanaga, executive director of the American Civil Liberties Union of Virginia, who was the state’s first female chief deputy attorney general.
“It was about making sure that when the government does something that you argue violates that, it must show that there is compelling interest to do so,” she said.
The Virginia law “is about clarifying what the First Amendment protects, which is about government action. That’s really different from the Indiana [law], which extended to regulating the behavior of two private sector individuals, an individual and a corporation or two people,” Gastanaga said.
Carl Tobias, a professor of constitutional law at the University of Richmond School of Law, said that the cultural and judicial acceptance of same-sex marriage has reignited interest in passing laws to protect religious liberties.
“But RFRAs haven’t been used that way before, they have mainly been used by prisoners to gain protection for their religious beliefs,” Tobias said. “The concern is now that this will be turned into a device to discriminate against same-sex couples and LGBT people. That is a fairly legitimate concern.”
Hobby Lobby ruling
The landmark Supreme Court decision in the Hobby Lobby case in 2014 might have created an opening for some political leaders to try to expand state RFRA laws, Tobias said.
The Hobby Lobby ruling allowed for-profit corporations to be exempt from a law its owners religiously object to if there is a less restrictive means of furthering the law’s interest.
The Hobby Lobby ruling marked the first time that the court recognized a for-profit corporation’s claim of religious belief.
“That’s what corporations are concerned about in Indiana and could be concerned about here — the symbolism of exclusion and the real practical effects,” Tobias said.
To Marshall, however, the inclusion of the Hobby Lobby provision in the Indiana law is all that sets the Indiana and Virginia laws apart.
“That’s the only difference. The other part is the same. In a sense, Indiana has an updated version of our law,” Marshall said in a phone interview Thursday.
Virginia spurned licensing bill
This year, during the legislative session, Marshall proposed his own tweak to Virginia’s law on religious liberty.
But his measure, that would have allowed anyone holding a state license, including business owners, lawyers and doctors, to deny services to gay people without facing disciplinary action, was defeated by a Republican-led House panel in January.
Virginia ACLU director Gastanaga said Marshall essentially “was trying to do the Indiana thing.”
But the delegate rejects this interpretation of his legislation.
“My bill was more narrow than the Indiana law — it only dealt with licensing,” Marshall said.
“It was directed at government action. Indiana’s law includes government action, but it goes beyond, and because it looked at the Hobby Lobby case, it included these private spheres of actions as well.”
Marshall said it is false to say his bill “allows you to discriminate against somebody” who is “sitting at a lunch counter.”
A perceived threat?
The mere fact that some lawmakers want to strengthen Virginia’s religious liberty law is perceived as a threat by advocates for LGBT rights — in spite of legalized same-sex marriage and McAuliffe’s executive order protecting Virginia state employees from discrimination based on race, gender, religion and sexual orientation.
“Gay people can still be fired, be denied housing, be denied public accommodation,” said James Parrish, executive director of the gay rights group Equality Virginia.
“We get calls from people who were not hired because they are gay, and because gays and lesbians are not included as a protected class, there is no legal recourse,” Parrish said.
Said Gastanaga: “The reality is, we do not have a general non-discrimination bill. We have one of the weakest civil rights laws in the country. We are like Indiana in that respect.”
A continual clash
Tobias said that the uproar over the Indiana law speaks of a much broader question the country has wrestled with for its entire history — how religious liberty should be defined.
“The real clash comes between religious liberty on one hand and discrimination on the other,” he said. “That’s a really difficult issue for the country, for states, for individuals, on how one person’s law for religious liberty is discrimination for somebody else.
“I don’t think there’s an easy answer to that question.”