As Fairness West Virginia, an LGBT rights group, and the Family Policy Council of West Virginia, a group that opposes same-sex marriage and other LGBT-inclusive measures, argued over it last week, it seemed pretty clear that LGBT rights were at the center of the controversy over the West Virginia Religious Freedom Restoration Act.
Still, some said that House Bill 4012 is not about civil rights.
Kellie Fiedorek, an attorney with the conservative Alliance Defending Freedom, said during a meeting of the House Judiciary Committee last week that RFRA laws protect you “regardless of sexual orientation.” The bill's lead sponsor, Delegate John O'Neal, R-Raleigh, said “that really is a separate issue.” Several supporters have pointed out that there is a federal RFRA, and RFRAs in several other states predate the Supreme Court's decision on same-sex marriage.
But Delegate Rupie Phillips, one of the bill's 10 co-sponsors, said late last week that LGBT rights actually are at the heart of the issue. He was asked if support for the “religious freedom” bill stems from opposition to same-sex marriage.
“Pretty much,” Phillips, D-Logan, said.
The bill establishes a legal process for determining whether a person's religious beliefs are being violated. Because those who think their beliefs are being violated could argue in court that local nondiscrimination ordinances, among other civil rights laws, violate their religious beliefs, civil rights advocates fear that the law could be used to discriminate against the LGBT population, among other historically discriminated against groups.
Some fear that businesses would attempt to turn away LGBT customers.
“If a baker doesn't want to put a man and a man on a cake, that should be their choice,” Phillips said, adding that he doesn't think a baker should prevent the same-sex couple from buying a cake, either.
Phillips said the bill is “to protect the churches and the preachers” from being forced to officiate and host same-sex weddings.
“I'm not saying no one should get married if they're same-sex,” he said. “I'm just saying they shouldn't be allowed to sue churches and preachers.”
When asked about constitutional protection from such a requirement, Phillips said, “other states have [RFRAs].”
University of California, Irvine School of Law dean Erwin Chemerinsky, a renowned Constitutional scholar who has studied, taught and practiced Constitutional law for more than 30 years, said in his opinion, requiring a clergy member to perform a same-sex wedding would be unconstitutional.
“I know of no case that ever has required a clergy member to perform a same-sex wedding,” he said in an email. “I know of no law that would require this. I believe that would be regarded as unconstitutional.”
The National Jurist honored Chemerinsky as one the Most Influential People in Legal Education in 2014.
John Taylor, a WVU law professor who teaches the Constitution and religion, said “no one would interpret the Obergefell decision as requiring that clergy marry gays against their will.”
“The Constitution limits state action, not private action,” he said in an email. “The decision says the states must recognize gay marriage in so far as marriage is a legal relationship. It does not say anything about when churches may or must perform the religious sacrament of marriage.
“Even if, in some science fiction scenario (which, I add, would not occur even in Santa Monica and will certainly not occur in WV) some government passed a law requiring ministers to marry gays against their will and their theological convictions, the law would be found to be unconstitutional by any federal or state court in any jurisdiction in the country,” Taylor said.
“In other words, the Religion Clauses of the United States Constitution ALREADY protect against this problem and a state RFRA (Religious Freedom Restoration Act) is NOT needed to address that problem.”
The law professor said being refused service at a business is a different matter because businesses are “public accommodations,” and some states don't allow prohibition in public accommodations based on sexual orientation. West Virginia's Human Rights Act does not include protections based on sexual orientation, although some cities have passed their own ordinances expanding protections to the LGBT community.
There have been others who have listed same-sex marriage as reason for the bill.
On Jan. 28, Allen Whitt, president of the Family Policy Council, cited “sinful and depraved” behavior as justification for the proposed law, before a group of about 300 supporters. Carrie Bowe, representing state Attorney General Patrick Morrisey, cited the Supreme Court's decision on same-sex marriage at the same rally.
Reached late last week, Whitt said, “I don't have time to talk to you right now” and did not return another call.