West Virginia Lawmakers Pass Problematic ‘Religious Freedom’ Bill 72-26

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Thursday afternoon, the West Virginia House of Delegates approved the Religious Freedom Restoration Act (RFRA) by a vote of 72-26. Its advocates have warned that the advance of LGBT rights has encroached upon religious liberty.

During the debate, Democrats opposed to the bill (HB 4012) called out the discriminatory intentions behind RFRA. “We already have religious freedom,” Del. Stephen Skinner (D) countered, “Click your heels three times; you’re already home.” He pointed out how the LGBT community is already at risk of discrimination, highlighting a county clerk in West Virginia who just this week castigated a same-sex couple seeking a marriage license, calling them an “abomination” and ruining what should have been their special day.

RFRA’s advocates argued that the House previously passed a RFRA in 2012, and that the current bill has the same language as it did then, and the same narrow language as the federal standard. In this way, it differs from the more expansive RFRAs that have been recently introduced, like in Indiana last year and Arizona the year before. For example, Indiana’s law explicitly created religious liberty protections for when private citizens are involved in litigation with each other, whereas West Virginia’s only protects individuals against state action that infringes upon their beliefs.

Nevertheless, it’s very much not true that the bill is the same in 2016 as it was in 2012, even if its wording is the same. RFRA was originally enacted in 1993 to overrule a Supreme Court decision that was widely viewed as insufficiently protective of religious liberty. At the time, RFRA was also uncontroversial, largely because the law was not understood to permit religious liberty suits to undermine the rights of third parties. The Supreme Court’s 2014 Hobby Lobby decision, however, upended that balance, holding that a religious objector’s rights overcame the right of their employees to health plans that covered birth control. That decision also may permit anti-gay businesses to ignore bans on discrimination.

The sponsors in West Virginia seem to know that RFRA could now perpetuate religiously-motivated discrimination. House Majority Whip John O’Neal (R) has defended the bill, arguing that the Constitution “doesn’t guarantee anyone’s right to have any particular kind of lifestyle or behavior protected, but it guarantees the free exercise of religion. That freedom has been severely curtailed in recent years with the growth of gay rights and mandated contraception coverage under Obamacare, among other things.”

Several amendments that would have clarified that RFRA could not be used to supersede local nondiscrimination ordinances were defeated on Wednesday. There are seven municipalities in West Virginia that offer such protections to the LGBT community.

The RFRA now advances to the West Virginia Senate, which is narrowly controlled by Republicans (18-16).