After several attempts failed earlier this year, West Virginia lawmakers on Tuesday finally amended a “religious freedom” bill in a way they hope will prevent it from being used to discriminate against the LGBT community.
Previous attempts to amend the bill (HB 4012) to protect civil rights laws had failed in the House Judiciary Committee, on the House of Delegates floor and in the Senate Judiciary Committee. But on the Senate floor Tuesday, several Republican senators crossed party lines to support an amendment from Sen. Corey Palumbo, D-Kanawha. The amendment passed on a 23-11 vote.
Palumbo's amendment says the bill does not apply to any federal, state or local nondiscrimination laws or ordinances, or to any federal, state or local laws or ordinances concerning child vaccinations.
At the end of nearly two hours of debate on the bill, Senate Majority Leader Mitch Carmichael, R-Jackson, spoke through tears and urged his colleagues to support the amendment.
“I prayed for clarity, wisdom and discernment on this,” Carmichael said. He said he didn't think he had ever mentioned his faith in the House or Senate before, but “it colors everything we do.”
“I believe in the goodness of people,” he said. “I want the poor to be rich and the weak to be strong, and when we build walls, we diminish that.”
The bill establishes a legal process for courts to follow when people or businesses believe governmental action is violating their religious beliefs. The law would establish a balancing test for courts to use when determining if someone is being substantially burdened by governmental action, and whether the state has “compelling governmental interest” in ensuring the law is followed.
“Governmental action” could include civil rights laws, including local LGBT-inclusive nondiscrimination ordinances, so civil rights advocates have argued that the law could be used to allow discrimination against the LGBT community and other historically discriminated-against groups. Proponents of the bill have said support stems from opposition to same-sex marriage.
Palumbo said his amendment would make it clear that the bill “cannot be used as a sword to try to invalidate those ordinances.”
During his floor speech, Carmichael said a “shield against discrimination” isn't any different than a sword that perpetuates discrimination.
“I think we need to value the human dignity and the goodness in people,” he said.
Carmichael explained after the floor session why he was so overcome with emotion.
“I wasn't trying to utilize emotion to appeal to everybody, it just came over me, and I frankly didn't even want that kind of emotion in,” he said. “It's just that, when you talk about the aspect of a person who's been discriminated against — and I don't think the proponents of this bill mean that, in any way, shape or form. I do not believe that's what they want to do at all.
“But I felt that the effect of that could be construed as some people feeling unwelcome or discriminated [against]. And it just breaks your heart, because we want to welcome everybody and encourage everybody to live out their dreams and goals and aspirations and have the human dignity and value of every life.”
Sen. Mike Hall, R-Putnam, a Presbyterian minister, said he also struggled before deciding to support the amendment.
“The ultimate freedom of all of us is internal anyway,” he said.
Sen. Robert Karnes, R-Upshur, opposed the amendment, and noted that numerous other states have similar legislation.
“Do we consider Connecticut to be a hotbed of racism and discrimination?” he said. “Because they have a RFRA law.”
But Senate Minority Leader Jeff Kessler, D-Marshall, said West Virginia needs to send the message that it is “open to business for everybody.”
“If we reject this amendment, we will have a black eye, and we'll have worse,” Kessler said. “We will send a message to our children who are different that they're not welcome here.”
Sen. Chris Walters, R-Putnam, said courts might review the law later, and Tuesday's amendment will help them realize the bill was not meant to justify discrimination.
Walters said that when Lewisburg was working on passing its LGBT-inclusive nondiscrimination ordinance, the conservative Family Policy Council told Lewisburg City Council members that they could expect a lawsuit over it.
“We're kind of being used as pawns here to move that litigation forward,” he said.
Besides Carmichael, Hall and Walters, Republican senators voting for the amendment included Donna Boley, R-Pleasants; Ryan Ferns, R-Ohio; Tom Takubo, R-Kanawha; and Charles Trump, R-Morgan.
Trump spoke against Palumbo's amendment, saying it went too far. But he said after the vote that his fellow senators had changed his mind.
Sen. Sue Cline, R-Wyoming, voted for the amendment, but stood up immediately after the vote and said she had meant to vote against it.
One Democrat, Sen. Art Kirkendoll, D-Logan, voted against the amendment.
Staff writer David Gutman contributed to this report.