SUNDAY EDITION | Kentucky's 'religious freedom' bill may hit economic roadblock in 2017
State Sen. Albert Robinson, R-London, said he is considering once again filing his bill in 2017, raising the prospect of more debate over legislation viewed either as a shield for faith-based principles or a license to discriminate in the name of religion.
LOUISVILLE, Ky. (WDRB) – With a short, 30-day legislative session on tap, it’s unclear whether the Kentucky General Assembly will take up or seriously consider a “religious freedom” measure in 2017.
The Republican-controlled Kentucky Senate passed a bill this year that would allow some merchants to avoid legal consequences for refusing to provide services they say conflict with their religious beliefs. The measure died in the Democrat-led House of Representatives.
But Sen. Albert Robinson, R-London, said he is considering once again filing his bill, raising the prospect of more debate over legislation viewed either as a shield for faith-based principles or a license to discriminate in the name of religion.
“Every bill that we’ve had before at some point in time, we will come with them,” he said in an interview this month. “But it’s very limited what we’ll come with this session.”
In recent weeks, Robinson has lowered expectations for such legislation. But he said that with both chambers under GOP control, it’s a question of when – not if – he will re-introduce the measure.
Even so, the Louisville-area chamber of commerce already is taking a stance against such legislation. Greater Louisville Inc. says in its 2017 legislative agenda that it “strongly opposes any discriminatory legislation or regulation” that might jeopardize businesses or workers moving to Kentucky.
“We oppose religious freedom laws,” said Kent Oyler, GLI’s president and CEO. “We already have them on the books. We don’t think we need to confuse things with additional legislation.”
Oyler said the position is a response to laws that have triggered a backlash from some corporations, business leaders and entrepreneurs concerned that the measures legalize discrimination against LGBT people.
Citing a 2013 Kentucky law limiting the government’s ability to infringe on a “sincerely held religious belief,” some legislators say more bills would be redundant. At the very least, they say the General Assembly should wait until the case of a Lexington vendor who refused to make t-shirts on religious grounds winds its way through the courts.
Meanwhile, Republican leaders have said they plan to push a slate of other priorities, including repealing prevailing wage on public projects and passing a right-to-work law that makes union membership optional.
“Our focus is going to be on policy that drives Kentucky economically, that makes Kentucky a better place to live and to work and to attract business and create jobs,” said House Speaker-elect Jeff Hoover, R-Jamestown.
‘We need legislation’
But many Republicans who were elected or re-elected in November made conservative social issues part of their campaigns, said Martin Cothran, senior policy analyst with the Family Foundation of Kentucky.
Even with a short session, Cothran expects lawmakers will have time to address measures besides those being emphasized by GOP leaders.
“Cultural issues, values issues were on the campaign literature of practically every Republican running this year,” Cothran said. “And so we think it would be a mistake to ignore those issues in favor of so-called economic issues.”
He said the legislation is needed because of “people with special interests, political agendas, who want to force other people to agree with them on controversial issues.”
The Kentucky Baptist Convention supported the 2013 bill, which became law only after the state legislature voted to override then-Gov. Steve Beshear’s veto. Since then, the 2015 Supreme Court ruling legalizing same-sex marriage has presented “many challenges to religious liberty,” said Paul Chitwood, the Baptist group’s executive director.
“Because there’s been such a broad and inconsistent interpretation of religious liberty and religious freedom as guaranteed by law, then I do believe that we need legislation that would ensure consistent interpretation and consistent protection,” Chitwood said.
License to discriminate?
Opponents of “religious freedom” bills in Kentucky are bracing for their return in 2017. Chris Hartman, director of the Louisville-based Fairness Campaign, said he expects several versions of the legislation to be introduced.
“Folks have every right to abide by their faith in their daily lives, and the Fairness Campaign has always supported that,” Hartman said. “Religious liberty is one of the foundational elements our society is built on here in America. However, you don’t get to use that as a license to discriminate.”
He said the bill Robinson pushed this year goes “leaps and bounds” above the 2013 law and would essentially void the antidiscrimination ordinances in eight Kentucky cities – Louisville, Lexington, Covington, Frankfort, Morehead, Danville, Midway and Vicco, an Appalachian town of about 320 people.
Robinson’s bill did not apply to “standard goods and services” or activities in the “ordinary course of business.” Instead, it focused on “customized, artistic, expressive, creative, ministerial, or spiritual goods or services.”
But Hartman said that language opens the door for discrimination at businesses beyond those envisioned by the bill’s supporters.
“When I go into Burger King I get my burger made my way,” he said. “… At the end of the day, a good lawyer will be able to make that argument for virtually any trade, for virtually any business to say that this is a customizable or expressive art form.”
For his part, Robinson said his bill simply provides Constitutional protections for people to act according to their conscience.
“It never is read to where they could refuse to sell to a person because of their sexual orientation or their personal beliefs,” he said.
Some observers and opponents say any such laws should make clear they don’t undercut local “fairness” ordinances and other existing civil rights guarantees.
For 2017, “religious freedom” legislation is the leading issue for the Jewish Federation of Louisville, said Matt Goldberg, the organization’s community relations director. In particular, Goldberg said the federation is concerned about the impact on lesbian, gay, bisexual and transgender people.
“We will fight it tooth and nail, and unless and until there are specific protections for these minority groups to be free from discrimination, we will not be supporting any ‘religious freedom’ bill,” he said.
Concern over economic fallout
Robinson’s bill would have created a new section of Kentucky’s existing law on freedom of religion.
The General Assembly passed House Bill 279 in 2013 in response to a state Supreme Court decision that upheld the convictions of an Amish couple that refused to follow state law by placing a reflective emblem on their horse-drawn buggy.
The Kentucky Commission on Human Rights, which enforces the state’s civil rights act, urged Beshear to veto the bill. It warned that the legislation’s “broad language” could let people discriminate based on their religious beliefs and undermine local fairness ordinances.
But the commission hasn’t received any such complaints since then, agency spokeswoman Victoria Stephens said.
There has been one court case involving the state’s 2013 Kentucky religious freedom law, according to a note published by the Kentucky Legislative Research Commission. In other states with such laws, researchers found “scant litigation pertaining to these statutes.”
The Kentucky case involved a Lexington company, Hands On Originals, that refused to print t-shirts that referenced a gay-pride festival. The Lexington Human Rights Commission determined the denial violated the city’s fairness ordinance, but a Fayette Circuit Court judge later overturned the ruling.
The case was appealed to the Kentucky Court of Appeals, where it is pending.
The court’s ruling shows that vendors are free to act according to their faith, said state Sen. Morgan McGarvey, D-Louisville. McGarvey, an attorney, was one of 16 Senators to vote against Robinson’s Senate Bill 180 in March.
The bill got 22 votes and passed with bipartisan support – and had opponents in both parties.
McGarvey said his biggest concern is the potential economic fallout from such legislation. In the wake of North Carolina’s “bathroom bill,” which nullified local antidiscrimination measures, the National Basketball Association pulled its All-Star game from Charlotte and the Atlantic Coast Conference moved championship events from the state.
Louisville was among the beneficiaries of the ACC boycott, landing the 2017 baseball tournament at Slugger Field.
“What we’ve seen time and again in the states that have tried this is that there are real economic repercussions from these sorts of extreme overreaches,” McGarvey said.
Other large business organizations in the state haven’t taken positions similar to Greater Louisville Inc.
The Kentucky Chamber of Commerce in October adopted a policy opposing "discriminatory legislation in the name of religious freedom." The statewide chamber's concerns mirror those of Greater Louisville Inc. -- that such laws could hurt Kentucky's business climate.
The Northern Kentucky Chamber of Commerce has not taken a position on such legislation in the past and typically focuses strictly on economic issues, said Trey Grayson, the organization’s president and CEO.
But Grayson said the chamber surveyed its advocacy committee about Robinson’s bill and would consider taking a stance.
“We’re weighing our options,” he said.
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