Is West Virginia Going to Pass a “Get of Jail Free” Bill? – By Dahlia Lithwick FEB. 12 2016 6:25 PM

The legislation would protect religious freedom to the extreme.

Fellow religious freedom supporters hold a rally on June 30, 2014, in Chicago. -- Scott Olson/Getty Images

Fellow religious freedom supporters hold a rally on June 30, 2014, in Chicago. —
Scott Olson/Getty Images

What with New Hampshire primaries and Zika scares and Syria deals, you might have missed that it was also a big week for “religious liberty.”

In West Virginia, Republican state senators offered up a bill that would make Roy Moore weep with joy: The sweeping proposal would allow for claims of religious liberty so broad as to not only justify discrimination but could also allow anyone to break the law if it offends their religious convictions.

Senate Bill 11 would amend the state constitution to create the “West Virginia Freedom of Conscience Protection Act,” which does two things: It ensures that “in all cases where state action burdens the exercise of religion, strict scrutiny is applied” and “provide[s] a claim or defense to a person or persons whose exercise of religion is burdened by state action.” This vague and broad language will protect anyone who wants to use religious justifications to discriminate against, say, LGBT renters or customers, but may indeed be so broad that it becomes a defense for those who claim they broke any law for religious reasons.

This Attorney General Candidate’s “Religious Liberty” Proposal Makes Absolutely No Sense – By Mark Joseph Stern DEC. 28 2015 5:12 PM


Missouri attorney general candidate Josh Hawley. Hawley campaign ad

Josh Hawley, a Republican running for Missouri attorney general, recently came out swinging in favor of state-level religious liberty legislation to ensure that churches and businesses will not be compelled to “participate” in same-sex marriages. Hawley, who is challenging a state senator for the nomination, painted himself as a bold truth-teller, declaring that “my part is to raise this issue and speak out in favor of it and hold [legislators’] feet to the fire.” He also insisted that “this is the way we avoid a cultural war, not prolong it.”

These statements are rather curious, for two reasons. First, and most obviously, churches are shielded by the First Amendment from engaging in any wedding ceremony they disagree with—something that Hawley, a professor at the University of Missouri School of Law, surely understands. But second, and more important, Missouri does not currently protect gay people from discrimination. Not in the workplace, not in public accommodation, not in housing, not in education. An employer could fire a gay worker because he was gay; a store could eject a gay customer because he was gay; a landlord could evict a gay tenant because he was gay; a school could expel a gay student because he was gay—and none of these homophobes would break a single state law.

To glimpse the impact this lack of protection has on Missourians, just look at the case of James Pittman. A gay man, Pittman alleges that he faced vile homophobic harassment at work: Employees called him a “cocksucker,” asked whether he had AIDS, ridiculed him for having a boyfriend, and mocked him when they broke up. Then he was fired. Pittman sued his employer, alleging anti-gay discrimination. But a state court hesitantly threw out his case, explaining that anti-gay workplace discrimination is perfectly legal under Missouri state law.

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Conservatives regroup after gay marriage defeat – By ADAM B. LERNER 7/12/15 7:53 AM EDT

Participants in the March For Marriage protest outside the US Supreme Court on April 25, 2015, in Washington, DC. The Supreme Court meets on April 28 to hear arguments on whether same-sex couples have a constitutional right to wed in the United States, with a final decision expected in June.       AFP PHOTO/PAUL J. RICHARDS        (Photo credit should read PAUL J. RICHARDS/AFP/Getty Images)

The Supreme Court’s recent same-sex marriage ruling left many conservative Christians steamed, with some calling for new constitutional amendments and others urging resistance against America’s new legal reality.

But many leaders on the religious right accepted defeat quietly, embraced their new underdog status, and began coalescing around an invigorated crusade for “religious liberty,” with a strategy modeled on the very social movement that just beat them in court: gay-marriage advocates.

“Same-sex marriage has been the looming cultural issue of the moment,” said Phillip Bethancourt, executive vice president of the Ethics & Religious Liberty Commission, an offshoot of the right-leaning Southern Baptist Convention. “Religious liberty issues are the next horizon.”

The religious right rose to prominence in American politics in the 1980s, under the banner of Jerry Falwell’s now-defunct “Moral Majority.” But now, Bethancourt said, conservative Christians have become a “moral minority” living in a “post-Bible belt” America that discriminates against them.

Justice Samuel Alito employed similar rhetoric in his same-sex marriage dissent, warning that Justice Anthony Kennedy’s sweeping decision will be “used to vilify Americans who are unwilling to assent to the new orthodoxy.” Justice Clarence Thomas agreed, writing in his own dissent that the ruling could have “potentially ruinous consequences for religious liberty.”

“It seems like the oppressor is now taking on the mentality of the oppressed,” said Brandan Robertson, a self-described evangelical who supports same-sex marriage.

A number of Republican presidential candidates have echoed those arguments following the high court’s decision.

Louisiana Gov. Bobby Jindal told Fox News that “already Christian businesses are facing discrimination if they don’t want to participate in wedding ceremonies that violate their sincerely held beliefs.” Former Arkansas Gov. Mike Huckabee similarly warned in a USA Today op-ed of businesses “economically terrorized” for their beliefs and the ruling’s coming “collision with the First Amendment guarantee of religious liberty.”

Similar worries about the plight of religious dissenters surfaced sporadically before the court’s decision — mostly in states with gay marriage and LGBT anti-discrimination laws or occasionally on a national scale, in reference to debates over abortion and contraception. But now, longtime evangelical leader Gary Bauer said, there’s widespread consensus among conservatives that “the next battlefield is protecting religious liberty,” with a particular emphasis on Americans whose religious beliefs prevent them from partaking in same-sex marriage ceremonies.

In the wake of the court’s decision, the religious right has already begun pushing new religious freedom laws and executive orders in state governments specifically targeted at preventing state agencies from penalizing businesses and individuals who refuse to participate in gay weddings.

Kansas Gov. Sam Brownback became the first Republican politician to take action, issuing an executive order Tuesday that forbids the state government from penalizing any religious leader or organization that refuses to participate in a same-sex marriage. In a statement accompanying the order, he cited a need to “protect against any infringement” of the “right to worship according to ‘dictates of conscience’.”

Unlike Indiana or Arkansas’ controversial religious freedom bills, which drew fire nationally for broad language that potentially extended to lawsuits between private individuals and businesses, Brownback’s order specifically dealt with government penalties for those who refuse to recognize gay-wedding ceremonies. The order made direct reference to Obergefell v. Hodges, the Supreme Court’s gay marriage decision, as an “imposition” that “poses potential infringements on the civil right of religious liberty.”

And in Congress, more than 100 members have followed suit by cosponsoring the First Amendment Defense Act, which would prevent the federal government from revoking the tax-exempt status of religious organizations that do not recognize same-sex marriages. The bill speaks to fears fueled by President Obama’s own solicitor general, Donald Verrilli, who said during Obergefell’s oral arguments that non-cooperative religious organizations’ tax-exempt status is “certainly going to be an issue” for the court in the future.

A number of religious conservatives told POLITICO that the key to winning these upcoming legislative and legal battles will be employing tactics refined by the same-sex marriage movement that recently defeated them.

“[LGBT activists] did a good job of making the stories of peoples’ lives front and center and saying, ‘Look at how these people are affected,’” said Travis Weber of the Family Research Council. Groups like Freedom to Marry and the Human Rights Campaign used social media to promote popular gay and lesbian celebrities’ viewpoints and encouraged Americans to look to their LGBT neighbors asking for acceptance.

Conservatives should follow suit, Weber said, by highlighting the stories of religious individuals he said had been “demonized,” pointing to businesses like Sweet Cakes by Melissa, an Oregon bakery that was fined $135,000 for refusing to bake a wedding wake for a lesbian couple, or the Odgaard family, who shut down their Iowa bistro after a legal battle over their refusal to host a same-sex wedding. These cases, he believes, can serve as the same sort of compelling hook that Justice Kennedy used by putting James Obergefell’s heartfelt story of losing his husband at the beginning of his decision.

Another cue conservative Christians are taking from their Obergefell defeat: Don’t focus too heavily on gay and lesbian peoples’ sex lives. Instead, focus on religious liberty issues that have nothing to do with the bedroom.

“When sexual liberty and religious liberty are at odds with each other, in our culture, oftentimes sexual liberty prevails,” Bethancourt said, noting that the same-sex marriage movement was ultimately successful in highlighting families seeking parental rights and access to loved ones in the hospital.

Bethancourt’s group wrote an amicus brief for the Supreme Court on behalf of a young Muslim woman who was denied a job at Abercrombie and Fitch on the presumption that she would not take off her head scarf during work. The case, he noted, was a clear-cut issue of religious liberty without an alienating sexual component, and it also allowed his movement to partner with other religious groups so that religious liberty arguments were no longer tethered to a particular denomination.

“People of faith have to stand together, they have to look out for each other,” Bethancourt said.

And there’s another lesson for religious conservatives: Build a diverse coalition. Bethancourt noted that progressive groups, from the NAACP to the ACLU, successfully expanded the base of support for marriage equality outside of traditional LGBT advocates.

But no matter how the Christian right evangelizes and markets itself, many same-sex marriage advocates see it as nothing more than bigotry in sheep’s clothing.

The religious right has employed the “language of apocalyptic impending doom” because “religious leaders realize they’re losing their base,” said Robertson, who characterized the right’s narrative as: “We’ve lost our position of influence in our country, we’re now a minority, and [thus] persecution is coming.”

“LGBT activists [were] saying, ‘Treat us the same as everyone else’ for a long period of time, and conservative Christians are [now] saying, ‘What we want is a carve out so we are exempt from parts of civil law,’” said Clyde Wilcox, a professor at Georgetown University who wrote “Onward Christian Soldiers: The Christian Right in American Politics.”

Whether the Christian right succeeds in securing new protections depends largely on how much the American public buys into their stories of persecution, said Michael Moreland, a former White House aide to George W. Bush.

“Each side is trying to lay claim to the language of discrimination,” which he said is “a very powerful tool” in American politics because it’s “deeply shaped by the civil rights movement.”

“Everyone’s kind of waiting now to see how this plays out. It could play out as race discrimination did, where understandably you had a national consensus come together very quickly about the intolerability of racial segregation,” he said. “Or it could end up being like abortion, where you have a constitutional right but a lot of exemptions,” earned through legal and political fights by a still formidable pro-life movement.

“A very narrowly crafted religious protections argument can be very successful,” Wilcox said, but overreach like in Indiana will push the public away. “Conservatives need to watch out.”


Kansas lawmakers retreat from religious liberty bill – By Emma Margolin 02/14/14 08:26 PM—UPDATED 02/14/14 09:33 PM

In a surprising move, the Kansas state Senate Republican leadership announced on Friday that it was killing – at least, in its current form – a controversial religious liberty measure, harpooned for opening the door to broad anti-gay discrimination.

Screen Shot 2014-02-15 at Feb 15, 2014 5.05

House Bill 2453, as drafted and passed by the Republican-controlled state House of Representatives this week, would give any individual, business, group, or government official the right to deny same-sex couples a host of basic goods, services, benefits, or employment – on the grounds of a conflicting “sincerely held religious belief.” Lawmakers in the state House approved the measure on Wednesday by a vote of 72-49.

The bill was widely expected to pass the state Senate, too, as Republicans outnumber Democrats 32-8 in that chamber. But Republican state Sen. Susan Wagle, the Senate’s president, poured cold water on its prospects Thursday night when she released a statement saying that a majority of her caucus opposed the bill’s potential green light to discriminate. On Friday, she reaffirmed that position.

“I believe that when you hire police officers or a fireman that they have no choice in who they serve,” Wagle said at a news conference Friday, according to theWichita Eagle. “They serve anyone who’s vulnerable, any age, any race, any sexual orientation.”

“Public service needs to remain public service for the entire public,” she added.

Read more:  Religious liberty bill opens door for LGBT discrimination

One of the strongest criticisms of the bill was that it gave state employees license to ignore legally valid same-sex marriages. Opponents feared officials could cite the law’s protections in refusing to intervene in a domestic violence dispute between a gay couple, for example, or in denying a gay couple a marriage license, should a judge overturn the state’s 2005 voter-approved ban on gay marriage.

Supporters insisted the purpose of the measure was to ensure the free exercise of religion, and pointed to the bill’s stipulation that an employer find another employee to perform a service if one refused on religious grounds.

Wagle said that provision would increase the cost of doing business and place a burden on employers.

“I believe the intent of the House was to protect religious liberties. We respect that,” she said, according to the Associated Press. “But the business implications are going to harm the practice of employment in Kansas.”

As the bill began to pick up steam, it fueled a chorus of growing opposition. The Kansas Chamber of Commerce and the newly formed Kansas Employers for Liberty Coalition released statements saying that the bill posed legal problems for the business community, and that it would strain employer-employee relationships. And a Facebook page titled “Stop Kansas House Bill 2453” has netted more than 50,000 “likes” as of Friday evening.

“Political pages here, if they get 1,000 ‘likes,’ they’re pretty successful,” Thomas Witt, executive director of the Kansas Equality Coalition, told msnbc. “This has exploded in this state. And it blew up in their faces.”

At an afternoon press conference Friday, state House Speaker Ray Merrick said that if the vote were held again, it probably wouldn’t pass. He promised to work with the Senate until they reached a consensus on what to do with the bill.


All In with Chris Hayes, 2/14/14, 9:18 PM ET

The end of same sex marriage bans?