North Carolina should reject proposed license to discriminate

Six months after federal courts struck down North Carolina’s ban on same-sex marriage, some legislators in the General Assembly are still trying to send the message that gays and lesbians remain second-class citizens. They are seeking to pass a bill, the Religious Freedom Restoration Act, that could grant the right to discriminate against gay people if that discrimination is religiously based.

The bill contains even more extreme language than the bills that created a national furor when they passed in Indiana and Arkansas, causing both states to revisit and narrow their newly passed legislation. North Carolina should avoid this frenzy altogether by rejecting this legislation outright.

The language of the proposed N.C. RFRA looks innocuous at first glance. It declares that “(s)tate action shall not burden a person’s right to exercise of religion, even if the burden results from a rule of general applicability,” unless it is “essential to further a compelling governmental interest.” Proponents of the bill make clear, however, that they intend it to ensure that businesses can legally discriminate against gays and lesbians.

The irony is that no existing North Carolina law prevents businesses from discriminating against gays and lesbians. While some states and municipalities outside of North Carolina have laws prohibiting businesses that offer services to the public from discriminating based on sexual orientation, North Carolina does not. This means that businesses that decline to serve gays in this state – say, restaurants that don’t want to cater same-sex weddings – are already within their rights and do not need a RFRA to “protect” them from such a nondiscrimination law. (But if antidiscrimination laws were eventually passed, the RFRA could provide a defense.) The current push for a RFRA is therefore better viewed as one more attempt – along with the bill exempting magistrates from performing marriages for same-sex couples – by some lawmakers to rally their base by sending the message that the right to discriminate against gays is enthusiastically supported in Raleigh.

This message is harmful not only to gay people, but to the social fabric of North Carolina.

Not only does the bill seek to remedy a perceived problem that doesn’t exist, but its proponents’ arguments to support it are disingenuous. They contend that the bill’s language is nearly identical to the federal RFRA, which passed with broad support in 1993. Yet key differences in both legal context and language distinguish the federal act from the current bill. The federal RFRA was motivated by the desire to ensure that the government did not interfere with the religious practice of citizens, particularly those of religious minorities, without compelling justification. The immediate catalyst of the federal RFRA was the withholding of government benefits from two members of a Native American church for religious rituals involving peyote. At the time of passage, nothing in the federal RFRA was thought to protect the right of religious people to discriminate against others, although some have since sought to use that act in this way. The North Carolina bill, though, as its advocates have made clear, is motivated by the desire to ensure that businesses owned by those who disapprove of gays and lesbians have a free pass to discriminate against them.

The language of the N.C. bill reflects this change in purpose. The federal RFRA, at the time of its passage, was thought to protect only the rights of individuals. Only years later, did the Supreme Court (by a starkly divided vote) announce that it protected some businesses. In contrast, the N.C. bill explicitly extends protection to businesses.

Further, the federal RFRA was intended to provide protections only against the government. The N.C. RFRA, though, protects against suits by private citizens – therefore allowing it to be used as a defense to claims of discrimination by private parties.

Finally, the federal RFRA protects only against those rules that “substantially burden” the right of religious exercise. In contrast, the N.C. bill omits the word “substantially” and requires only that rules “burden” (a term that is broadly defined) the right of religious exercise to trigger the law’s protection. This makes the N.C. bill significantly broader than the federal RFRA and even the Indiana and Arkansas laws that created the firestorms in those states.

It is time to retract the outdated message supporting discrimination that the RFRA bill contains and to send a message that supports the dignity of all North Carolinians – straight, gay or otherwise. This requires rejecting North Carolina’s RFRA bill.

This story was originally published April 22, 2015 at 5:08 PM with the headline "North Carolina should reject proposed license to discriminate."