If a bill that says it will “restore” religious freedom is approved by the West Virginia Legislature, it could lead to lawsuits for cities that have passed nondiscrimination ordinances that include LGBT protections, like Lewisburg did Tuesday morning.
Several mayors of cities that have taken steps to be LGBT-inclusive say they are opposed to the bill, titled the West Virginia Religious Freedom Restoration Act, with one mayor saying legislators promoting the bill need to “get out of the way.”
House Bill 4012 sets up a legal process for determining if state action is violating a person’s religious beliefs. Because businesses and individuals could argue that civil rights laws and ordinances don’t apply to them because of their religious beliefs, civil rights advocates fear discrimination against LGBT individuals, women and others.
Sarah Warbelow, legal director for the Human Rights Campaign, said West Virginia’s Religious Freedom Restoration Act could set the stage for lawsuits against cities that sanction employers for discriminating against LGBT customers or employees, and lawsuits against employers who require their employees to follow the city’s nondiscrimination ordinances.
Warbelow, who follows legislation affecting the LGBT population as part of her job, said similar broadly worded bills have failed to pass “because a wide swatch of Americans, including businesses, recognize that it’s not good public policy to have a law that lets people attempt to poke holes in existing laws and regulations.”
The Lewisburg City Council unanimously passed an ordinance Tuesday morning after a five-hour long meeting that drew impassioned debate from about 90 speakers, about evenly split between supporters and opponents. The ordinance prohibits discrimination in employment and public accommodations based on sexual orientation or gender identity. It is the seventh city or town in West Virginia to pass a similar ordinance.
About 500 people showed up for the hearing. Some of those opposed have been stirred up by efforts of the conservative Family Policy Council and others to convince them that the ordinance will allow men to put on dresses, sneak into women’s restrooms, and assault women and children. (The ordinance permits no such action.)
Most of the people in favor of the ordinance were residents of the city, which is known for being tolerant and inclusive, while most of those opposed were from nearby but not within the city limits, according to Lewisburg Mayor John Manchester.
Manchester said he is hopeful that the ordinance sends a message to the LGBT community that they are welcome in Lewisburg, while he keeps an eye on the bill that could result in legal opposition to it.
“I think the importance of the vote last night was to send a message that we believe that cities have the right to make a stance and a statement on behalf of all its citizens,” he said, “and we would be frustrated if the state chose to intervene in local lawmaking efforts that affect people within our city.”
“I think, as the Gazette-Mail editorial staff pointed out, the RFRA is a solution in search of a real problem.”
The City Council added a provision to the ordinance clarifying that the ordinance does not seek to abridge the freedom of speech or freedom of religion of faith-based organizations, based on concerns from some that church leaders would be forced to perform same-sex marriages and similar fears.
Manchester conceded no one is forcing church leaders to officiate same-sex weddings.
“This was a concern of many people who reached out to the city,” he said, “and we wanted to be responsive to that concern.”
Huntington also has a nondiscrimination ordinance that includes protections based on sexual orientation. Mayor Steve Williams sent a statement in opposition to the bill.
“Huntington’s 11 City Council members are elected, just like every member of the Legislature,” he said. “These 11 elected representatives of the citizens of Huntington unanimously voted in December 2013 to expand our nondiscrimination ordinance to include sexual orientation and those with disabilities. If the conservative mantra is to allow the government closest to the people to speak for the people, I would simply say, ‘Get out of the way.’
“Since our nondiscrimination ordinance was expanded, we have continued to hear the echoing of church bells every Sunday morning in Huntington without interruption. Furthermore, I believe the unanimous vote of our City Council reflects the values and the culture embraced by the citizens of our community.”
While Warbelow said House Bill 4012 would not invalidate local nondiscrimination ordinances but could make them vulnerable to attacks in court, Charleston Mayor Danny Jones said, the way he sees it, the bill would “nullify” Charleston’s ordinance. He pointed out that Charleston is a political subdivision of the state, which does not include protections for the LGBT community in its Human Rights Act.
“If we lose, we have to pay their attorneys’ fees, and that’s some dice we’re not going to roll,” Jones said. “I think it nullifies our law. Not only that, it puts us in the same situation as Indiana, and I think it will cost us in tourism.”
Indiana passed a similar bill in March 2015. Chris Gahl, vice president of marketing and communications for Visit Indy, said last week that Indianapolis lost $60 million when 12 conventions cited the legislation and chose not to locate there.
“I would rather them not pass the law,” Jones said. “I like things the way they are.”
Bob Bastress, a West Virginia University law professor who has taught RFRA laws, said the law could result in litigation and administrative costs for cities, although he noted that the person suing must show they were “engaged in religious practices” and local government could argue that they have “compelling state interest” to end discrimination.
“RFRA laws are expensive for local governments,” he said.
Delegate John O’Neal, R-Raleigh, is the lead sponsor of the bill this year. O’Neal, who serves as the majority whip in the House of Delegates, did not return a call seeking comment. A clerk for the House Judiciary Committee, where the bill is pending, also did not return a call.