Kentucky is the latest state advancing legislation specifically designed to enable discrimination against the LGBT community. On Tuesday, the state Senate voted 22-16 to advance S.B. 180, which creates “protected rights” and “protected activities” — in short, nobody has to serve anybody else if it violates their conscience to do so.
“Protected activities” specifically refers to actions conducted by professionals who “provide customized, artistic, expressive, creative, ministerial, or spiritual goods or services,” which is specifically designed to address wedding vendors and others who might be disposed to refuse service because of a customer’s sexuality. The “protected rights” means that the government can not in any way impede on those activities if it violates the person’s “right of conscience” or other First Amendment protections.
The bill is, in a sense, a mash-up of similarly proposed anti-LGBT legislation in Congress and other states, such as the First Amendment Defense Act (FADA), the Religious Freedom Restoration Act (RFRA), and the municipal “preemption” laws that have passed in Tennessee and Arkansas. Like FADA, it would block the government from punishing individuals who act on their conscience. Like RFRA — which Kentucky already has — it privileges religious beliefs over other laws that might be in place. And like the preemption laws, it would supersede LGBT nondiscrimination protections that are already in place in Covington, Danville, Frankfort, Lexington, Louisville, Midway, Morehead, and Vicco.
Sponsor Sen. Albert Robinson (R) claimed the bill was necessary because gay people “are trying to force their beliefs down the throats” of those who oppose marriage equality. To try to make the case that his legislation wasn’t just designed to discriminate against LGBT people, he also claimed it was necessary to protect a Jewish baker from making a cake with a swastika for Nazis. Not only has there never been such a conflict, but being a Nazi is not a protected class under any Kentucky law, so a Jewish baker could already refuse to produce such a hateful symbol.
Many lawmakers who opposed S.B. 180 pointed out that it's unclear if it would do much to change the status quo except to encourage businesses to refuse to serve LGBT people. A recent court case suggests that Kentucky's RFRA already ensures such discrimination is legal behavior. After design company Hands On Originals refused to produce T-shirts for the Lexington Pride Festival in 2012, the city's Human Rights Commission found that the business had violated Lexington's sexual orientation nondiscrimination protections. However, a state judge overturned that ruling last year, declaring that the protections substantially burdened Hands On Originals, punishing its owners "for exercising their sincerely held religious beliefs" by requiring they produce shirts that "convey messages contrary to their faith."
The Hands On Originals case, which is still pending before an appeals court, may not be the final word on how Kentucky's RFRA interacts with LGBT protections, but S.B. 180 would certainly force that precedent upon the entire state.
The bill's ultimate likelihood of passing may be minimal. Several Republicans in the Republican-controlled Senate voted against it, and it now heads to the House of Representatives, which is controlled by Democrats.