Wyoming may soon join 26 other states that have passed a version of the Religious Freedom Restoration Act. Opponents worry the measure could allow businesses to refuse service to a wide range of people based on religious or other deeply held beliefs.
Rep. Nathan Winters (R-Thermopolis), associate pastor at his local First Baptist Church, is lead sponsor of House Bill 83-Religious Freedom Restoration Act. The bill passed 36-23 on third reading in the House on Monday, and now awaits hearing in the Senate.
Some opponents interpret the bill as providing a religious loophole in Wyoming’s public accommodation law, which requires equal access to public businesses and agencies without regard to race, religion, color, sex or national origin.
“I want us to think a little more before we jump on this bandwagon of so-called religious freedom,” said Rep. Mary Throne (D-Cheyenne) in floor debate Monday. “We have laws in place that businesses have to provide services free of discrimination. I frankly do not know what this bill does for all of that.”
The editorial board of the Wyoming Tribune Eagle criticized the bill, saying it would allow business owners to claim religious freedom in denying services on the basis of race, sexuality, or religion.
Winters disagreed with that reading. He said the bill is a measure to protect people’s freedom of conscience.
“This is when someone attempts to walk in and demand that you must do something that violates your conscience; it simply says you don’t have to do that,” Winters said. “We are trying to protect the basic freedoms of every citizen in this country.”
In floor debate Winters offered an example of professional photographers who, despite being willing to photograph people no matter their gender identity, would object to photographing a same-sex wedding ceremony because they would be “drawn into” a religious activity they disagree with.
“You cannot discriminate against another individual,” Winters told WyoFile, “but when you are asked to perform a service where you become an active part of something that violates your conscience, you should be able to say, ‘I will help you find someone else.’”
Rep. Cathy Connolly (D-Laramie), who is gay, objected to businesses being able to refuse to take her photograph or sell her a cake.
“What this bill does now is to allow that group, or any other religious group, to discriminate against me,” Connolly said. “That is unacceptable in America.”
Winters’ said his bill isn’t a free pass to discriminate or violate laws. The bill has language saying it can’t be used to “excuse acts of licentiousness,” or to “justify practices inconsistent with the peace or safety of the state,” or violate public health and safety laws.
“This is crystal clear,” he said. “A person still has to live within the scope of the law.”
Religious Freedom Acts across the nation
Winters’ bill is part of a national trend dating back to 1993, when Congress passed the bipartisan Religious Freedom Restoration Act. The bill had unanimous support in the House, and only three senators voted against it. President Bill Clinton signed the measure.
The Supreme Court of the United States ruled in 1997 that the federal RFRA law only applies in federal cases, and not in state or local law. That led many states to pass their own versions of RFRA. Rep. Winters said that’s the reason for his bill.
“It makes sure that the protections that have been listed in federal law after the court case of 1997 are understood now on state law,” Winters said. The bill is designed to provide a framework for judges to evaluate whether the state has improperly violated an individual’s freedom of religion, he said.
Specifically, it would require courts to perform a “compelling interest” test in cases regarding free exercise of religion. The test dates back to the 1963 U.S. Supreme Court case Sherbert v. Verner, which provided that the government can only restrict religious freedom if it has a compelling interest, and that the curtailment uses the least restrictive means possible.
As more states have passed RFRA legislation, they have refined the language to require courts to use higher levels of scrutiny when deciding if the state has a compelling interest in restricting religious freedom. Winters’ bill follows that trend, calling for courts to use a strict level of scrutiny. It further adds that the state cannot restrict freedom of conscience, which need not be compelled by or central to a specific religious tradition.
In other states defendants have attempted to use RFRA laws to defend themselves from accusations of discrimination. In most cases that defense has failed because the state has a compelling interest in preventing discrimination, according to legal scholar Christopher Lund of Wayne State University in Michigan.
An oft-cited example is New Mexico’s Elane Photography v. Willock, in which Vanessa Willock filed a suit after photographer Elaine Huguenin refused to take pictures of a 2006 ceremony between Willock and her same-sex partner.
The New Mexico Supreme Court ruled that the Elane Photography was in the wrong because Huguenin violated state laws prohibiting discrimination based on sexual orientation. The court also ruled the New Mexico’s RFRA did not apply because state government was not a party in the case. (Read the decision here.) The case went to the Supreme Court of the United States, which refused to grant a hearing in April 2014.
The outcome of such a case in Wyoming under Winters’ bill would be uncertain, since the state currently allows businesses to discriminate based on sexual orientation. (A bill to add sexual orientation and gender identity to the state’s non-discrimination statutes awaits hearing in the Senate.)
It’s also not clear whether Winters’ bill would allow use of the RFRA only in cases where the government is named as a party, as was a question in New Mexico, or if it would also come into play in cases between individuals.
A 2010 analysis by Lund shows that state RFRA laws are rarely used in litigation. That may change in the wake of the Hobby Lobby decision, which more broadly interprets the federal RFRA law. A September 2014 federal court ruling in Utah cited the Hobby Lobby decision’s interpretation of RFRA, allowing a member of the Fundamentalist Church of Jesus Christ of Latter-Day Saints to avoid testifying in a case involving underage child workers in a pecan farm.
The American Civil Liberties Union has fought the passage of RFRA laws in Ohio, Mississippi, Michigan, and other states. The group argues that RFRA laws have been used as a defense for discriminating against LGBT couples, and exempting pharmacies from dispensing contraceptives.
In a 1990 decision, Supreme Court Justice Antonin Scalia wrote that using religious defenses to oppose laws “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.”
Scalia cited a long tradition of similar rulings going back to 1879 Supreme Court decision dealing with polygamy, which stated:
“Can a man excuse his practices … because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
Issuing marriage licenses
Opponents of the Wyoming bill worry that it would allow staff members in county clerk offices to designate someone else to sign marriage licenses for same-sex couples if they disagreed with the practice.
Rep. Winters said that’s a misunderstanding. “When you talk about compelling governmental interest, when an employee is hired to do that (government) job it is understood that they fulfill those statutes,” Winters said. “That was a miscommunication. That was never the scope of this bill.”
Even so, Rep. Tyler Lindholm (R-Sundance) and Rep. Albert Sommers (R-Pinedale) offered a successful third-reading amendment on that point. To paraphrase, the amendment requires that the act should not be construed to allow government officials to refuse to perform their official duties, regardless of their religious objections.
“Let’s talk about the elephant in the room,” Lindholm said in floor debate. “This has to do with marriage licenses. If the state of Wyoming is going to demand that it be involved in the act of marriage in the first place, that means that we have to issue marriage licenses. You do not have a religious exemption on that if you work for the county or the state. That is a job that you have signed up to do, and this amendment ensures the job is done for the taxpayers.”
An earlier amendment from Rep. Bob Nicholas (R-Cheyenne) deleted language in the bill allowing successful RFRA claimants to have their court costs paid by the state.
It’s possible for states to consider language clarifying that their RFRA laws don’t apply to other parts of state law, for example child protection statutes, drug laws, or discrimination laws. Winters’ bill, as written, would apply RFRA to all Wyoming statutes.
Winters told WyoFile that the bill wasn’t intended to fix any specific incident involving religious freedom in Wyoming.
“I think whenever a person finds a gap in law it is good to make sure that statute is in place so that when a judge has to make a decision they have the framework to make the decision upon,” he said.
Rep. Throne thought the change could do more harm than good. “This bill opens up a Pandora’s box that we should avoid,” she said.