State legislatures have not officially convened for their 2016 sessions, but anti-LGBT bills are already piling up for consideration. The latest such bill was pre-filed last week in New Mexico. Despite the fact its sponsors have called it a “religious liberty” bill, the legislation blatantly carves out exemptions so that LGBT people — and only LGBT people — can be legally discriminated against.
Republican state Reps. David Gallegos and Nora Espinoza filed HB55 on Thursday, a bill “relating to religious freedom.” New Mexico already has a “Religious Freedom Restoration Act” (RFRA), but the New Mexico Supreme Court ruled unanimously in 2013 that it did not justify anti-gay discrimination. Gallegos and Espinoza’s bill seeks to rewrite RFRA in the same problematic ways proposed earlier this year in Indiana — meticulously redefining terminology to expand its scope and creating new exemptions.
For example, the bill begins by expanding the state’s already-broad definition of the legal term “person” to include “a limited liability company,” “any legal or commercial entity,” or any “business trust, estate, trust.” This ensures that all businesses of all sizes are recognized by the bill’s exemptions.
The bill then adds a definition for “free exercise of religion”: “an act or a refusal to act that is substantially motivated by religious belief.” Thus, if a wedding vendor refuses to serve a same-sex couple, it wouldn’t matter if that action would constitute a violation of the state’s nondiscrimination law. Such discrimination would simply be a religious act and thus entitled to the bill’s protections.
Though RFRA was originally designed to protect citizens from government overreach, HB55 would expand this to protect citizens from other citizens as well. This change directly mirrors what was most problematic about Indiana’s proposed RFRA. By changing “government agency” to “person” in several places, the bill says not only that one person can not infringe on another’s religious belief, but the religious actor is actually then entitled to damages. What this means is that not only would it be legal for a business to refuse service to a same-sex couple, but if the couple then tried to sue, the business could actually win legal fees from the discriminated-against couple for having their religious beliefs “restricted.”
Previously, New Mexico’s Human Rights Act already contained an exemption for religious institutions to discriminate against LGBT people in employment and renting practices, but it was particularly narrow. Specifically, it stipulated that the exemption did not apply to any organizations recognized as a for-profit or 501(c)(3) non-profit by the Internal Revenue Service — only those that serve denominational functions. HB55 removes this narrowing language, replacing it with a much broader exemption:
Nothing contained in the Human Rights Act shall… D. burden a person’s free exercise of religion by requiring the person to provide a service or to conduct business in a manner inconsistent with adherence to that person’s sincerely held religious belief unless that adherence is based on race, age, religion, color, national origin, ancestry, sex, physical or mental handicap or serious medical condition.
The only categories protected by the state’s non-discrimination laws not included in that list are spousal affiliation, sexual orientation, and gender identity. Basically, Gallegos and Espinoza are proposing that the state’s LGBT nondiscrimination protections simply would not apply to anybody who had a religious objection to them. All of the other protections would still apply normally.
And that’s not all. HB55 also contains another familiar “religious freedom” protection — borrowed directly from the First Amendment Defense Act (FADA), a federal pro-discrimination bill that six Republican presidential candidates have pledged to support. Under the New Mexico bill, the state government could take no “discriminatory action” against an organization that exercised its “religious freedom” through the other exemptions in the bill.
This means that anti-LGBT discrimination would not endanger an organization’s tax status or state funding. Thus, for example, if a religious-run adoption agency insisted on refusing service to same-sex couples, the state would be required by the law to continue funding it with taxpayer money.
If all of that weren’t enough, the bill explicitly stipulates that the government will not “require a person to perform an act or provide or receive a product, good or service where that act conflicts with that person’s sincerely held religious belief.” The state would be prohibited from enforcing its own nondiscrimination law.
Both Gallegos and Espinoza previously attempted to block marriage equality in New Mexico. Espinoza supported a constitutional amendment banning same-sex marriage, and Gallegos joined a lawsuit that tried to prevent marriage equality from taking effect.
It’s not surprising that they have to be so blunt about their latest attempt to discriminate. New Mexico is where the first high-profile wedding vendor discrimination case played out when Elaine Huguenin of Elane Photography refused to photograph a same-sex commitment ceremony way back in 2006. The couple filed a complaint, and the case progressed all the way up to the state Supreme Court. Though Huguenin claimed an exemption under the state RFRA, the justices unanimously ruled against her, pointing out that RFRA did not apply because the government was not a party to the case. Huguenin’s lawyers at the Alliance Defending Freedom even appealed the case to the U.S. Supreme Court, but the country’s highest court refused to offer it any further consideration.
That’s why HB55 not only carves out exemptions for discrimination motivated by religion, but allows RFRA to apply to disputes between two private parties. It does everything it needs to in order to allow businesses owners to refuse service to LGBT people — all in the name of “religious freedom.”