Louisiana Set To Become The Next ‘Religious Freedom’ Bill Battleground

A bill pending in Louisiana seems likely to become the next national focus in the debate between marriage equality and claims of 'religious freedom.'

church-state-street-signs

Things seem to have quieted down after last weeks kerfuffle over ‘religious liberty’ bills that many perceived as attempts by conservative Republicans to give the imprimatur of law to discrimination against gays and lesbians. The changes made by legislators in Indiana and Arkansas after national groups and major corporations spoke out against the laws pending in those states seem to largely address the concerns that were being raised in the wake of the passage of Indiana’s law earlier last month. Additionally, efforts to pass similar legislation in Georgia and Nevada stalled, and appear to be in doubt in North Carolina and Virginia. Despite all of that though, the debate over the conflict between same-sex marriage rights and what religious conservatives see as their right to live by their religious beliefs even while operating a business is far from over, and it appears the next battleground will be in Louisiana, where a bill that in many ways goes far beyond what previous similar laws have attempted to do will be pending when the state legislature convenes later this month:

The fight over religious freedom legislation that has embroiled Indiana and Arkansas over the past week is headed to Louisiana this month when the Legislature convenes for its spring lawmaking session.

State Rep. Mike Johnson, R-Bossier City, has filed a bill that would allow private businesses to refuse to recognize same-sex marriage, should it become legal in Louisiana. The legislation would — among other things — allow a private company to not offer the same benefits to legally-recognized same-sex married couples as other married couples, on the basis of a religious objection. 

“It would be a license to the private sector to refuse, for religious or moral reasons, to recognize same-sex marriages. It covers not just churches and religious organizations, but also the for-profit sector, and with no limit on size or diversity of ownership,” said Douglas Laycock, a constitutional law and religious liberty expert at the University of Virginia who read the bill.

Laycock said the Louisiana bill would accomplish what many people thought the controversial legislation in Indiana was doing. Under pressure from the business community and sports leagues like the NCAA, both Indiana and Arkansas backed off their religious freedom legislation this week — adding language to specify the new laws did not sanction discrimination against the gay and transgender community.

Louisiana’s leading conservative Christian advocate, Gene Mills, acknowledged the bill was similar to those put forward in Indiana and Arkansas, though not entirely the same.

“It delves into — but not entirely — what is taking place in Arkansas and Indiana,” said Mills, who heads up the Louisiana Family Forum, an umbrella group for conservative Christians.

Yet Johnson, the bill’s sponsor, has always insisted the legislation isn’t supposed to be similar to what was proposed in Indiana and Arkansas. He describes his bill as protecting business owners from government retaliation based on their personal beliefs about marriage. It is meant to protect people on both sides of the same-sex marriage debate, he said.

“This is not an Indiana thing. This is not an Arkansas thing,” Johnson said, “I’m not sure why it would upset anyone.”

Johnson’s legislation does include a number of provisions that would prohibit state government from yanking tax benefits, licenses and state government contracts from business owners based on their views about marriage. His bill would not affect local parish law if passed, so there would be no impact on the local New Orleans and Shreveport ordinances that protect LGBT people from housing and employment discrimination.

LGBT advocates say Johnson is trying to frame the legislation as being substantially different from that proposed in Indiana and Arkansas to try in order to avoid the backlash those states have seen.

“He realized he couldn’t bring this in through the front door, so he is trying to bring it in through the back door,” said Bruce Parker, coalition manager for Equality Louisiana, a pro-LGBT advocacy group.

The LGBT community believes the bill is supposed to be a preventative measure, in case the U.S. Supreme Court strongly favors same-sex marriage in a ruling later this summer. The court’s decision could affect whether Louisiana would get to keep its ban on same-sex marriages.

“With a decision coming from the Supreme Court that could possibly allow same-sex couples in Louisiana to obtain marriage licenses, Rep. Johnson is trying to preemptively give individuals and businesses a way to disregard federal laws and rulings,” said Equality Louisiana in a written statement.

If anything, the Louisiana bill goes a step beyond the original version of the bills in Indiana and Arkansas in that it appears to explicitly authorize discrimination against gays and lesbians by and employer who claims that they are acting in accordance with their religious beliefs. Perhaps the most extreme example of that, of course, can be found in the fact that it would authorize an employer to deny spousal benefits to an employee who is married merely because their spouse is of the same gender. This is important, of course, because it seems increasingly likely that the Supreme Court will issue a ruling in June that strikes down laws against same-sex marriage nationwide. Assuming that happens, and depending on how long it takes for courts in other jurisdictions to act based on the Supreme Court’s ruling, same-sex marriages would be occurring in Louisiana at some point in 2015. If it passes in its present form, this law would mean, among other things, that an employer who provides additional benefits to married employees would be free to decline to provide those benefits to an employee in a legally recognized same-sex marriage based on the claim that doing so would somehow be an infringement on his religious liberty. As a practical matter, there’s really no difference between a law that authorizes this and a similar hypothetical bill passed in the wake of Loving v. Virginia that allowed an employer to deny benefits to an employee that was part of a legally recognized interracial marriage. The only difference in this case, of course, is the claim that ‘religious liberty’ is somehow involved here, although for the life of me I can’t see how providing employee benefits is a matter of ‘religious liberty.’

Given that this is Louisiana and the fact that the state legislature is heavily Republican, it would seem on paper at least that this bill has a strong likelihood of being passed. However, as we learned over the past two weeks, nothing is a certainty even in a heavily Republican state, especially once the glare of national media attention starts to have an impact. In Indiana, for example, Governor Pence was defiant in the face of criticism when he signed that state’s RFRA bill into law but after less than a week of intense media coverage and criticism from business interests both inside and outside the state, he was standing in front of reporters calling on the legislature to amend the bill to address the criticisms. Much the same thing happened in Arkansas, where Governor Hutchison made the same request of his legislature after seeing what had happened just a few states to the north. No doubt, it was that national outcry that also heavily influenced the fate of the RFRA bills in Nevada and Georgia as well. It seems likely that the Louisiana bill will garner similar national attention, especially given some of its more extreme provisions, and once that happens the statements of politicians like Governor Jindal may end up being meaningless once they find themselves under the scrutiny of the national media microscope.

As for the bill itself, I’ve noted my skepticism about RFRA laws in general in the past, and those criticisms would seem to apply equally here. Generally, the idea that a claim of ‘religious freedom’ should be a near absolute defense against the application of a generally applicable law is troubling one, because it creates two classes of citizens in the form of those to whom the applies and those to whom it doesn’t. More broadly, though, even if you agree that business owners should be free to decline to do business with whomever they wish, there are parts of this bill that go far beyond that and seem to be clearly aimed at turning gays and lesbians into second class citizens. Allowing an employer to use ‘religious liberty’ as an excuse to allow them to deny equal benefits to employees in legal marriages, for example, does more than just protect the individual liberty of a business owner it gives them the right to ignore the laws definition of marriage if it conflicts with their religious beliefs. More importantly, though, the law is so open-ended in what it would allow a business owner or employer to do, that there would seem to be no real limit on its application. Additionally, while the bill’s sponsor says that it would not impact the anti-discrimination laws that are on the books in cities like New Orleans and Shreveport there’s nothing in the text of the bill that says that and it would really be up to individual judges to determine what the law does and does not cover. At the very least, though, it seems to clearly send the message that, as far as the State of Louisiana is concerned, treating gays and lesbians like second-class citizens is perfectly fine. At least that’s the message that would be sent if the bill passes. As we approach the upcoming session in Baton Rouge, I suspect that national attention on The Pelican State will become even more intense than it was on Indiana.

Here’s the text of the bill:

Louisiana RFRA Bill by Doug Mataconis

FILED UNDER: Law and the Courts, Religion, US Politics, , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. DrDaveT says:

    ‘religious liberty’ bills that many perceived as attempts by conservative Republicans to give the imprimatur of law to discrimination against gays and lesbians

    That perception is strengthened no end by the failure of any advocate of such laws to be able to cite a past instance of an infringement of religious freedom that would become illegal under the new law — other than instances of overt discrimination against LGBTs.

    I’ve noted my skepticism about RFRA laws in general in the past

    Do you still feel that the motivation behind such laws is generally well-intentioned, as you did then?

  2. al-Ameda says:

    All of these Republican-instigated RFRA’s are a solution looking for a problem.

    No one objects to a business open to the public refusing service to obnoxious, rude or unruly customers, but when it gets beyond that, it begs the question: why are you doing business in public? Do business on-line, avoid that potentially unpleasant interaction with a dangerous gay wedding reception celebration.

    Finally, how does adoption of RFRAs square with the Republican Party’s outreach efforts?

  3. michael reynolds says:

    Laws that protect non-existent victims from non-existent religious infringement are of a piece with laws that seek to protect us from non-existent voter fraud.

    Because that’s what “conservatives” believe in: more government.

  4. DrDaveT says:

    @al-Ameda:

    Do business on-line, avoid that potentially unpleasant interaction with a dangerous gay wedding reception celebration.

    But if I run my business online, I won’t be able to tell which customers to discriminate against!

  5. Scott says:

    All of these Republican-instigated RFRA’s are a solution looking for a problem.

    Exactly. There wouldn’t be an uproar if the right wing fanatics didn’t start this fight. They acted like bullies and they were shocked when the bullied punched back. Now they are ready for round two.

  6. Modulo Myself says:

    Funny how the actual tenets of Christianity–those regarding murder, deceit, and greed–are barely mentioned as needing protection. I get the sense that the Christians into RFRAs are fine with firing employees for not overselling the customer or not offering up fictitious numbers on status reports. As Jesus says, “Some people are team players and some people need to wise up.”

  7. gVOR08 says:

    Jindal seems more serious about the R primaries than Pence, and has a much redder state, so I suspect he may sign it if it passes. Gonna need popcorn.

  8. al-Ameda says:

    @DrDaveT:

    But if I run my business online, I won’t be able to tell which customers to discriminate against!

    I recommend extensive use of “Google” in order to find out if it’s safe to do business with prospective customers. Does that seem like a viable solution?

  9. C. Clavin says:

    C’mon…these businesses should not have to do business with adulterers, or divorcees, or people who have had pre-marital sex, or liars, or someone who puts on ostentatious displays of wealth, or any host of other venial and/or mortal sinners.
    Oh…wait…they just want to be able to discriminate against people because of who they love?
    How very Christian of them.
    Fvck these bigots…let ’em go out of business.

  10. C. Clavin says:

    @James P:
    Hey…did you forfeit your Government health care or housing subsidies yet, Mr. PhD???

  11. C. Clavin says:

    @gVOR08:
    They both run welfare states…relying on the rest of us to support them.
    They ought to focus on economic realities, and not all this radical social bullshit.

  12. gVOR08 says:

    @James P: Guts and backbone, I’m sure that explains why he did an abrupt 180 on Common Core.

  13. C. Clavin says:

    @James P:
    Jindal is a Welfare Queen…one of the worst of the Red State Welfare Queens.
    If he had any back bone he would fix that…instead of mooching off the rest of us.

  14. MBunge says:

    Oh my word. Rod Dreher lives in Louisiana and even appears to have set up his own private “Mel Gibsony” orthodox church. This could be fun.

    Mike

  15. de stijl says:

    @al-Ameda:

    All of these Republican-instigated RFRA’s are a solution looking for a problem.

    What are you talking about? Of course there is a problem!

    Homosexuals are about to acquire civil rights on a par with right-thinking, pious, hard-working, tax-paying Americans. Hell, they don’t even vote for the correct political party come Election Day! Why in a handful states and municipalities, they even have semi-protected class status. The horror!

    This just replaces the de facto and de jure discrimination, harassment and humiliation that has existed since time immemorial with a new set – a discrimination reset button, if you will. Plus, since they’re called Religious Freedom Restoration laws, true Americans get to wrap themselves in the warmth of the Lamb and the flag while having lawful cover to get their hate on. Win-win!

    This is the perfect solution to a massive problem. Duh!

  16. de stijl says:

    @MBunge:

    I thought Dreher was going to have a nervous breakdown and/or a brain aneurysm last week. That much pearl clutching and fainting must be exhausting. Plus, those bad faith arguments are not going to write themselves, are they?

  17. Tyrell says:

    This type of law could be used against religious groups. I could be refused service if I am wearing a cross or some sort of Christian
    t shirt: “John 3:16”
    And I’m not just whistling Dixie about this either.

  18. al-Ameda says:

    @James P:

    He won’t capitulate to the Gay-stapo.

    I’ve noticed that conservatives are now under orders to refer to gays and others who support non-discrimination with respect to Gay customers as the “Gay-stapo.”

  19. grumpy realist says:

    @al-Ameda: Hmm, maybe I overestimated the age of this troll. That sounds more like something an 8-year old would come up with.

  20. Davebo says:

    @grumpy realist:

    It didn’t come up with it.

  21. gVOR08 says:

    @James P: So you’re saying there are tax breaks supporting your home and health care. Got it.

  22. michael reynolds says:

    @C. Clavin:

    He’s been banned by Joyner. Obviously he’s enough of an asshole that he disregards the wishes of his host, but we should ALL refuse to interact with him.

  23. DrDaveT says:

    @James P:

    I don’t receive any government subsidies for housing […] Yes, I write off the interest I pay on my mortgage

    You just can’t make this stuff up. Priceless.

  24. LC says:

    oh my god please just stop responding to it. every freaking thread. ignore it and it’ll go away.

  25. Surreal American says:

    @michael reynolds:

    Is calling a previously banned troll a bad name grounds for being banned as well? That strains credulity.

  26. C. Clavin says:

    @James P:

    Yes, I write off the interest I pay on my mortgage

    If my employer could not write off the premiums they pay on my health insurance they would still provide the insurance.

    I don’t receive any government subsidies for housing or healthcare.

    That single comment proves that, beyond your total lack of understanding of economics, the only way you have a PhD is if they gave them away in cereal boxes.
    What a maroon.
    Go find another bridge, Troll.

  27. humanoid.panda says:

    @C. Clavin:

    That single comment proves that, beyond your total lack of understanding of economics, the only way you have a PhD is if they gave them away in cereal boxes.

    Marginal utility is a known Communist trick!

  28. C. Clavin says:

    @James P:

    Subsidy: noun sub·si·dy \ˈsəb-sə-dē, -zə-\; a grant by a government to a private person or company to assist an enterprise deemed advantageous to the public

    You know…advantageous…like health care or housing.
    Go ahead now little troll…forfeit your subsidies…unless you don’t have the spine to back up your talk.

  29. C. Clavin says:

    @James P:
    And that’s just f’ing stupid beyond belief…totally unworkable…now wonder you flunked out of high school.

  30. wr says:

    So apparently the Bible tells me to hate gays. Not to hate them so much so as not to employ them on the grounds that they morally offend me, but to hate them just enought that I hire them and pay them less than straights. Because that’s what Jesus is all about!

  31. HarvardLaw92 says:

    @michael reynolds:

    His comments seem to be disappearing, so it looks like our host is actively tracking and eliminating the troll. I agree that in the meantime, we should all completely ignore him.

  32. michael reynolds says:

    @wr:
    Hey, is your agent the best way to reach you in the real world? Still Stein?

  33. James Pearce says:

    @HarvardLaw92:

    I agree that in the meantime, we should all completely ignore him.

    Good call.

    On topic, I’m actually a bit sad that this is what the Republicans in these states are focusing on. Why not, I don’t know, build stuff? Buildings, roads, fiber-optics networks, solar power plants. Surely their constituents would be better served if their political leaders put their energies into something useful.

    I keep thinking back to that pizzeria that closed after receiving a couple of dumb threats and oodles of donation money. One small interview goes viral and refusing to serve pizza proves to be more lucrative than serving pizza.

    What is more useless than a pizza place that doesn’t serve pizza? A Republican in a red state.

  34. HarvardLaw92 says:

    @James Pearce:

    The guy certainly has chutzpah. The owner of a site bans him, starts deleting his comments and still he doesn’t get the hint. To be a supposed conservative, he has zero respect for Joyner’s property rights.

    I’d say that it’s a case of having no shame, but that’s somewhat of a redundant statement – trolls by definition have no sense of shame, or they wouldn’t be trolls in the first place.

  35. Surreal American says:

    @HarvardLaw92:

    I’m beginning to suspect that the dude is not a mover and shaker in either the world of academics or finance.

    It’s gonna be tough for me not to respond. The troll’s arrog-ignor-ance is almost a thing of beauty.

  36. wr says:

    @michael reynolds: Stein it is, but it might be more direct to get me through Facebook. Just use the name for which WR are the initials…

  37. michael reynolds says:

    @wr:
    Okay, Agent X will be at the safe house and the password is swordfish. . .

    Thanks dude.

  38. HarvardLaw92 says:

    I was particularly amused by the citation of Barronelle Stutzman. The rage-o-sphere has been losing its collective mind over a recent ruling that she violated Washington State’s law against discrimination. They’re lobbing all sorts of insanity around –

    “She’s going to lose her business and her home and her retirement assets!!!”

    “She’s facing bankruptcy because of the fines and court costs!!!!’

    The reality of the situation? She has to pay a $1,000 fine and court costs of $1. If that relatively paltry sum stands to wipe out all of her assets and cause her to lose her home & business, she has bigger problems than not wanting to do the flowers for a couple of long-time customers.

    In reality, she just made a ~$93,000 profit

  39. Grewgills says:

    @James P:
    I realize you get some odd glee from annoying people, but please find somewhere else to do it. You were IP banned by the host and multiple posts of yours were taken down by the hosts. Clearly no one wants you here, including the proprietor. Please scrape together whatever dignity and scruples you may have left and go away.

  40. James Pearce says:

    @HarvardLaw92:

    In reality, she just made a ~$93,000 profit

    This.

    In the “Gofundme” era, viral sad sacks don’t lose their homes and their businesses. They get a windfall and become post children for whatever dunderheaded movement they’re involved in. Baronelle Stutzmann is this week’s George Zimmerman, who showed Cliven Bundy the proper way to fleece overly-credulous allies.

  41. Blue Galangal says:

    @Surreal American: Yeah, he made the drinking game SO EASY. Darn.

  42. J-Dub says:

    They should go ahead and pass the law, it’s not like New Orleans needs tourist dollars.

  43. slimslowslider says:

    @MBunge:

    Hilarious round up of the last few days of Dreher life here