The advance of same-sex marriage generates the headlines, but a veritable wave of anti-discrimination laws pertaining to sexual orientation and gender identity (SOGI) is sweeping the United States.
City councils and state legislatures across the country recently have passed laws or are looking to file legislation in the coming year that would make it illegal for homosexuals and transgendered people to be discriminated against for housing, employment and public accommodations.
The federal government is also taking action. On Dec. 3, the U.S. Department of Labor announced a new rule prohibiting federal contractors and employers from discriminating on the basis of sexual orientation and gender identity. The rule implements an executive order that President Barack Obama signed in July. Meanwhile, organizations that advocate for gay, lesbian, bisexual and transgendered people are preparing to lobby Congress to pass sweeping anti-discrimination legislation similar to the landmark Civil Rights Act that President Lyndon B. Johnson signed in 1964. U.S. Rep. David Cicilline, a Democrat from Rhode Island, told The New York Times that he will introduce legislation in the spring.
“Are we going to be a country in which we prohibit discrimination of any kind against individuals based on their sexual orientation?” Cicilline said.
Religious liberty concerns
The Church opposes unjust discrimination against anyone, but Catholic officials are raising religious liberty concerns in many states where sexual orientation and gender identity bills are being debated.
“In the name of preventing discrimination against some, they would impose it on others,” Bishop James V. Johnston of the Diocese of Springfield-Cape Girardeau in Missouri wrote in mid-October before the Springfield City Council approved a bill that expanded the city’s nondiscrimination ordinance to include protections on the basis of sexual orientation and gender identity. Bishop Johnston warned the law’s provisions were “inadequate to protect the legitimate rights of religious institutions and individuals.”
Officials at state Catholic conferences and some legal observers also are concerned that the new anti-discrimination laws could force the Church and religiously affiliated agencies to provide services that conflict with their moral teachings and principles. These laws could also expose private business owners with religious convictions to lawsuits and criminal penalties.
For example, in the city of Coeur d’Alene, Idaho, municipal leaders earlier this year said a local nondiscrimination statute, which covers sexual orientation and gender identity, compelled a Christian couple to bless same-sex unions in their for-profit chapel since same-sex marriage is legal in Idaho. After intensive media coverage, the city backed down and said the law exempted the owners.
Tom Brejcha, president and chief counsel of the Thomas More Society, also noted how a similar provision in Illinois’ civil union law forced Catholic Charities of Illinois to stop its foster care program rather than risk running afoul of the state’s anti-discrimination laws. He described similar laws elsewhere as “wolves in sheep’s clothing.”
“It just goes to show you how power is being wielded in an abusive way against people of faith,” Brejcha told OSV.
A growing problem
According to the Human Rights Campaign, an organization that advocates for LGBT causes, 18 states, as well as Washington, D.C., have laws that prohibit discrimination on the basis of sexual orientation and gender identity. Three states — New Hampshire, New York and Wisconsin — have anti-discrimination laws covering sexual orientation, but not gender identity.
Several more jurisdictions are moving to enact their own laws. In 2014, Miami-Dade County became the 21st municipality in Florida to adopt legal protections for individuals based on gender identity and sexual orientation. In November, voters in Dallas overwhelmingly approved similar nondiscrimination protections for LGBT city employees to the City Charter. City councils in Toledo, Ohio, and Philadelphia — and elsewhere — passed similar anti-discrimination laws this past year.
Meanwhile, state-level lawmakers in Pennsylvania, Nebraska, Michigan, Florida and elsewhere have filed pending bills to amend state laws to offer extra discrimination protections to homosexuals and transgendered individuals.
In Alabama, Democratic state representative Patricia Todd, the state’s first openly gay elected official, has told reporters that she will file a bill in the spring to protect LGBT state employees from being fired on the basis of their sexual orientation and gender identity.
In several states where anti-discrimination laws are being considered, the Catholic state conferences and bishops have expressed concerns about the possible threats to religious freedom.
“This session’s bills offered no protections of religious conscience for institutions like the Catholic Church nor for private employers that may be morally opposed to such conduct or behavior,” Amy B. Hill, the communications director for the Pennsylvania Catholic Conference, told OSV.
The Pennsylvania General Assembly’s legislative session ended Nov. 30 without lawmakers passing two SOGI bills that were filed earlier in the session. However, Hill said she expects similar legislation to be submitted in 2015.
In Washington, D.C., the City Council voted on Dec. 3 to repeal a religious exemption to the city’s Human Rights Act, which prohibits discrimination on the basis of SOGI. Congress created the exemption in 1989 after Georgetown University balked at being forced to allow its facilities to be used by a newly formed gay student group. “It is an open question whether a religious seminary or an institution with educational programs, educational instruction, or an educational component would be implicated by the legislation,” Michael Scott, director of the D.C. Catholic Conference, told OSV.
Scott said several concerned parties exerted pressure to demonstrate local and national opposition to repealing the exemption, a move that he said violated the First Amendment and the Religious Freedom Restoration Act. Lawrence J. Morris, general counsel for The Catholic University of America, testified before the D.C. City Council that the repeal would “take away our freedom, as a religious institution, to educate our students as we choose, in line with the teachings of the Catholic Church.” Morris said the university “welcomes ... all people,” and rejects unjust discrimination, while adding that the university has to remain true to its Catholic identity.
“This whole push for sexual orientation, gender identity laws is not about benefits. ... This has always been about affirmation and it’s about getting rid of the hetero-normativity of current law,” Robert Destro, a law professor at Catholic University, told OSV.
Still ‘open season’
Brejcha, of the Thomas More Society, said states could pass their own versions of the federal Religious Freedom Restoration Act to protect religious liberties from being undermined by the new anti-discrimination statues. He predicted significant legislative and legal clashes between people looking to advance new anti-discrimination statutes and those trying to protect traditional religious freedoms.
“It’s still open season on these issues,” he said.
Brian Fraga writes from Massachusetts.