Religious Freedom bill causes upheaval under the dome in Charleston
By Pamela Pritt, Register-Herald Reporter
The Restoration of Freedom of Religion Act, passed by 21 other states and adopted in some form by 11 others, is championed by a coalition of House Christians and opposed by some lawmakers here as an unnecessary measure that is divisive and discriminatory.
The First Amendment to the U.S. Constitution protects religious freedom, and on the floor of the House of Delegates Judiciary Committee chair John Shott, R-Mercer, said the cumulative effect of this bill is "it doesn't restore anything."
RFRA prohibits the state from interfering in an individual's religious practices, or placing a "substantial burden" on an individual's religious freedom. An individual who challenges a law through the courts must prove "sincerely held religious belief." If that is determined, then the state must prove it has a "compelling interest" in forcing that person to conform to the law and place the least restrictive burden possible.
But the bill's opponents read between the lines of the two-page measure to discern a deeper, darker meaning — one that would allow discrimination against any minority, particularly lesbians, gays, bisexuals and transgendered people, based on that same sincere belief.
It puts the GOP at odds with its own members. As the religious right butts heads with the pro-business conservatives, the two-pronged fork of the Republican Party is prodding the state Senate to either move the bill or kill it.
Some legislators are also casting a concerned eye toward Indiana where, after passing its own version of RFRA, the state lost $60 million in tourism-generated revenue when 12 national conventions pulled up stakes and moved elsewhere.
RFRA passed the House of Delegates on a 72-26 vote, with two members absent. In a chamber ruled by Republicans 64-36, five members of the GOP voted against the measure and 13 Democrats crossed the aisle to vote in favor.
Speaker of the House Tim Armstead, R-Kanawha, is a co-sponsor of the bill, and says the bill's critics are wrong about its intent. For Armstead, in his second year holding the gavel in the House, the bill codifies what the West Virginia Supreme Court upheld decades ago, and gives judges a balancing test and "guidance" from the Legislature when deciding constitutional cases.
Courts, he said, can change from election to election, and as judges change, so changes the way the law is interpreted.
"If there's something when we look at the Constitution, it shouldn't be up to activist judges," Armstead said. "We shouldn't change it through activism; (the Constitution) should be amended. Whether you're a judge that has a particularly liberal side or a conservative side, you have a balancing test that everybody applies."
And, he said, Christians also experience discrimination, but not by the government.
"It's as if everyone should be allowed to believe what they want except Christians," Armstead said.
Delegate Tom Fast, R-Fayette, agrees with Armstead that the courts are key — and unpredictable. Fast cites some U.S. Supreme Court history, noting in the 1990s the high court did away with the balance test and the U.S. Congress passed the federal RFRA in response.
Then, he said, the Supreme Court ruled that federal RFRA did not apply to states.
"We already have this, but now we're codifying it so the West Virginia Supreme Court can't just decide to play games with that," Fast said. "Just as the federal Supreme Court changed in midstream, in the West Virginia Supreme Court we have an election coming up this year, it could change in midstream."
Both attorneys, Armstead and Fast declare the bill is not about discrimination.
Armstead says the state has a compelling interest in nondiscrimination, but clarifies that means all citizens, not categories of citizens, with "a special set of rights" for certain people.
Fast would not agree that the state has a compelling interest in nondiscrimination, but he did say that the bill is not about allowing discrimination.
"Every West Virginian should have the right to live and work according to their religious beliefs and when their religious beliefs compete with an otherwise state law or state action, then this bill requires the courts to apply this balancing test," Fast said. "This bill is to provide a vehicle, a mechanism for the courts when you have a religious practice that is in opposition to a law, an ordinance."
'Shrouded in religious protection'
For minorities within the minority party, the bill is anathema to what they stand for and antithetical to where they believe the state should go.
Stephen Skinner, D-Jefferson, is the only openly gay delegate in West Virginia. An attorney, Skinner reads HB4012 differently than Armstead and Fast.
"It's not about balancing, (or) creating a test for the courts," he said. "It's about trying to give advantage to people who want to discriminate. I don't know what that does for us as a state except promote that image of intolerance."
Skinner says the bill is unnecessary because religious freedom is already guaranteed under both the federal and state constitutions.
"We are shrouded in religious protection from our birth to our death," he said. "That is powerful."
He said following the rule of law is important, although not always convenient, not always in our individual best interest, but "the only way we exist in society is to follow the rule of law."
"(HB4012) is like a get out of jail free card, so it promotes this idea that you can ignore laws just because you don't like them," he said. "The test is stacked in favor of the person who wants to ignore the law. It's quite another thing to protect someone's ability to worship, ability to choose their religion and worship in the way they see fit."
It's a misconception that a minister could be sued to force him or her to perform a same-sex wedding ceremony he or she doesn't agree with, he continued. "There's not one example of that in the United States," Skinner said. "We shouldn't be mixing the private religious affairs with the public sphere, and we shouldn't be bringing the church into commerce in such a way it drags all of commerce down.
"As somebody who's fighting to move West Virginia forward, both in terms of our business climate and our hospitality and tourism climate, in terms of our civil rights and protecting all of our citizens, it makes me feel like we're not doing our job," he said.
Skinner said the country doesn't have a religious freedom problem, and, he said, the 14th Amendment "is really about saying it is critical we treat each person on equal footing."
In fact, he said, the government's compelling interest in nondiscrimination trumps many of its other interests.
"You have your private life. You can do what you want in private life, but in the public, the government must ensure you're not discriminated against," Skinner said. "What we should be doing is passing a nondiscrimination law that applies to everybody and protects LGBT people. We've been trying to do that for 20 years and most people agree we should have it."
Skinner likened HB4012 to Jim Crow laws that segregated African Americans from post-Civil War Reconstruction to the mid-1960s.
"I don't think this bill is about deism, it's not about theism, it's not about racism, it's not about LGBTism," said Clif Moore, D-McDowell, one of three African American delegates in the House. "It's about wrongism."
"There's something wrong in America, there's something wrong in West Virginia and there's something wrong in this chamber when we can intentionally, irreparably and with malice aforethought select certain groups of people and exact our evilness and revenge on them," Moore said. "There's nothing right about that at all on any level, at any time, for any reason."
Moore said the bill sends a message from West Virginia to the world that the state wants a homogenous populace that is in ideological lockstep.
"I think we're sending a message to folks that says: 'If you don't look like me, if you don't walk like me, if you don't talk like me and if you don't share political or ideological synchronicity, there's no place for you. If you're here, get the hell out and if you're not here, don't come,'" Moore said.
He said he sees the push for HB 4012 as a reaction to the ever-changing face of America as Caucasians are projected to no longer be the majority race in the next few decades. Moore said one of his professors taught him about the law of differential social permissibility — which means, he said, "because of who you are, the station you occupy in society, you can do things other people can't do."
"That law is becoming so apparent and people are so frightened by it they're willing to do anything to protect their status, protect their power and protect their influence," Moore said. "That's what's happening here in West Virginia and it's just wrong."
The bill is currently in the Senate Judiciary Committee.
All three Democratic candidates for governor have spoken against HB 4012 since the House passed the bill.
Sen. Jeff Kessler, D-Marshall, said the bill is unnecessary because religious freedom is already protected, and he thinks the bill is a reaction to the U.S. Supreme Court ruling that upheld same-sex marriage.
"(I)t's an attempt to use religion as a sword to actually try to attack folks in the LGBT community," he said. "It's unnecessary, it's backward thinking and it's discriminatory. I'm convinced it will do nothing to advance us. Groups are coming out of the woodwork now against it. It's been tried in other states and those states suffered significant consequences."
Like Stephen Skinner, D-Jefferson, the only openly gay delegate in West Virginia, Kessler said the bill the Legislature should be passing is one that ends discrimination against LGBT people.
"We discussed right to work for 30 days down here, yet these folks in West Virginia are a class of citizens who do not have a right to work regardless or irrespective of their union affiliation. We have an entire class of people who can be fired because of who they are, not because of how well they perform in the workplace, not the type of job they do, but because of who they go home to at night and that's ridiculous," Kessler said.
Former U.S. Attorney Booth Goodwin said he's read the bill and realizes it sounds rather innocuous. But, he said, that isn't its intent.
"The religious freedom bill is an attempt to divide West Virginians and would cost us big time in the areas of tourism and economic development. This bill gives intolerance the force of law," he said. "Intolerance is unAmerican. It is immoral. It is wrong."
Jim Justice, a newcomer to state-wide politics, owns The Greenbrier resort and the Resort at Glade Springs, among other business ventures including coal mining and farming.
“We shouldn’t shoot ourselves in the foot by turning away tourism and businesses," Justice said. "We need to be a welcoming state that can attract new jobs. Indiana lost $60 million in tourism alone. West Virginia does not need to head down that road. We would never turn anyone away at The Greenbrier,” Justice said.
The Greenbrier hosts multiple conventions each year and Justice has attracted major sports teams, the New Orleans Saints and the New Orleans Pelicans to practice in his sports facilities on the resort's grounds. Also, the PGA Tour's annual Greenbrier Classic attracted an estimated 41,800 people to White Sulphur Springs last year for the tournament's final day.
"The PGA Tour has a strong commitment to an inclusive and welcoming environment for all at every event it operates and sanctions," The Tour's communications department said in an email response. "The Tour will continue to promote these principles in every community we visit."
The sole Republican candidate has not commented on the bill. Senate President Bill Cole, R-Mercer, said last week he had not yet read the bill while attending to Senate business, but this week said he would let the legislative process work, according to his campaign director, Kent Gates.
"If it comes out of committee, he'll allow it to be voted on on the floor," Gates said.
The bill is currently in the Senate Committee on the Judiciary.