In states across the country, and at the federal level, legislation like HB 135 has been introduced under the guise of “protecting civil liberties.” In reality, this kind of legislation, known nationally as a “First Amendment Defense Act,” legalizes discrimination against same-sex couples and transgender citizens, and endangers the rights LGBT people have fought hard to secure.
What does Wyoming’s Government Discrimination Act say?
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The operative language says: “Notwithstanding any other provision of law, the government of this state shall not take any discriminatory action against a person, wholly or partially on the basis that the person believes or acts in accordance with a religious belief or moral conviction that: (i) Marriage is or should be recognized as the union of one (1) man and one (1) woman; or (ii) That "man" and "woman" mean an individual's biological sex as objectively determined by anatomy and genetics at the time of birth.”
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The bill defines “a discriminatory action” extraordinarily broadly – it is any action to alter tax treatment; disallow a deduction for charitable tax contributions; deny any state grant, contract, subcontract, cooperative agreement, loan, license, certification, accreditation, employment, or other similar position or status from or to such person; withhold or otherwise deny any benefit under a benefit program; or “otherwise discriminate against such person.” It provides that the state “shall consider accredited, licensed, or certified for purposes of state law any person that would be accredited, licensed, or certified, respectively, for such purposes but for a determination against such person wholly or partially on the basis that the person believes or acts in accordance with a religious belief or moral conviction that (i) marriage is or should be recognized as the union of one man and one woman or (ii) "man" and "woman" mean an individual's biological sex as objectively determined by anatomy and genetics at the time of birth.”
- The bill defines “a discriminatory action” extraordinarily broadly – it is any action to alter tax treatment; disallow a deduction for charitable tax contributions; deny any state grant, contract, subcontract, cooperative agreement, loan, license, certification, accreditation, employment, or other similar position or status from or to such person; withhold or otherwise deny any benefit under a benefit program; or “otherwise discriminate against such person.” It provides that the state “shall consider accredited, licensed, or certified for purposes of state law any person that would be accredited, licensed, or certified, respectively, for such purposes but for a determination against such person wholly or partially on the basis that the person believes or acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman.”
- It defines a person to include for-profit corporations, and allows anyone to assert “a violation or attempted violation” as the basis for suing the government for damages. In addition, it provides for the awarding of attorneys’ fees.
What would Wyoming’s Government Discrimination Act do?
This bill opens the door to unprecedented taxpayer-funded discrimination against same-sex couples, transgender people, and the LGBT community. It would:
- permit state employees to discriminate against married same-sex couples, their families, and transgender people; for example, they could refuse to accept a valid ID from a transgender person based on religious beliefs that transgender people do not exist;
- county clerks could refuse marriage licenses to same-sex couples and keep their jobs;
- allow state contractors or grantees, including those that provide important social services like homeless shelters or drug treatment programs, to turn away LGBT people families with same-sex parents;
- let commercial landlords violate local nondiscrimination ordinances and refuse housing to same-sex couples, their families, or LGBT people;
- permit a university or community college to continue to receive state financial assistance even if it fired a transgender employee;
- prevent the government from refusing to employ an employee assistance counselor who lost their license or accreditation because of telling gay patients that their relationships are an abomination; and
- allow any of these individuals, businesses or groups, or anyone else who believes they may somehow be required by the state government to do something that implicitly condones marriage for same-sex couples or transgender people to file a lawsuit and receive damages from taxpayer money.
What about churches and clergy?
Despite what some opponents of marriage for same-sex couples have claimed, the First Amendment already protects the rights of churches and clergy to decide which unions to solemnize within their faith traditions. Since the founding of our country, no church has been forced to marry any couple in violation of its religious doctrine and that will not change now that same-sex couples can marry.
What about the tax exempt status of religious schools?
Certain religious schools receive tax exempt status as charitable institutions. In light of our country’s shameful history of race discrimination in education, the IRS and Supreme Court have recognized that schools that engage in race discrimination based on religious beliefs about interracial marriage cannot qualify for this government subsidy. Since then, the IRS has never made a similar determination about religious schools that discriminate based on beliefs about marriage for same-sex couples, or beliefs rejecting interfaith marriage, or regarding remarriage after divorce, even though interfaith couples and previously divorced people have the same constitutional right to marry that the Supreme Court extended to same-sex couples in Obergefell v. Hodges. There is no reason to think the IRS will act differently now that same-sex couples have a constitutional right to marry.
What does the public think about this?
In 2016, North Carolina’s legislature passed House Bill 2, a bill targeting LGBT people for discriminatory treatment, during a one-day special session. While estimates of the total amount of damage to North Carolina’s economy vary, there are plenty of examples of the wide-ranging fallout:
- Just a few weeks before the special session, PayPal had announced plans to open a Charlotte office employing over 400 people with an average salary of $50,929. Upon HB 2’s passage, PayPal canceled its investment. Deutsche Bank froze its plans to add 250 jobs in Cary.
- The National Basketball Association (NBA) moved its 2017 All-Star game, originally scheduled in Charlotte, to New Orleans. Charlotte’s visitors’ bureau estimated this cost the city approximately $100m in tourism revenue.
- The National Collegiate Athletic Association (NCAA) removed seven 2016-2017 championship games from the state, affecting basketball, baseball, soccer, and other sports. The NCAA’s president explained, “We believe in providing a safe and respectful environment at our events.” The Atlantic Coast Conference also moved eight 2016-2017 championship games.
- In October 2015, months after the RFRA battle of that spring died down in Indiana, Visit Indy commissioned a survey of 339 national meeting and convention planners and 419 Chicago residents. The survey revealed that Indiana’s RFRA left a strong negative impression.
- When asked “Has Indianapolis been in the news recently, and if so, for what topic(s)?” 58% of meeting planners cited RFRA/LGBT issues. In previous years, a majority of respondents would mention a major sporting event, such as the Final Four, Super Bowl, or Indy 500. In contrast, only 4% mentioned the Final Four in the 2015 survey.
- In a separate survey by a national travel research group (Smith Travel Research), Indianapolis was ranked 39th among 40 major convention cities for receiving “bad publicity” that may deter event planners from choosing it in the future.
Nationally, poll after poll continues to show support for the LGBT community and opposition to discriminatory religious exemptions.
- Sixty percent of Americans support the freedom to marry, as recently reported by Gallup.
- An even stronger majority, nearly 70 percent, support protecting LGBT people from discrimination in employment, housing and public accommodations.
- Two-thirds of small business owners (66 percent) don’t believe businesses should be able to deny LGBT people goods or services based on religious beliefs.
- Only one-third of voters (33 percent) believe that state and local officials should resist letting same-sex marriages proceed.
