March 30, 2013

Kentucky's religious freedom bill divided politicians, public, ministers

FRANKFORT — The Rev. Patrick Delahanty of Louisville says he thinks the new state law dubbed the Religious Freedom Act is needed.

"I want the state to meet the highest bar in its ability to interfere with one's religion," said Delahanty, executive director of the Catholic Conference of Kentucky, which backed the bill.

But the Rev. Nancy Jo Kemper of Lexington says the new law "teeters on the verge of religious fascism" and thinks it will open the doors for people to discriminate against others in the name of God.

Kemper, minister of New Union Christian Church in Woodford County and former director of the Kentucky Council of Churches, said she was voicing only her opinions and not those of the council or her church.

The strong disagreement between the two well-respected religious leaders underscores what was the most contentious issue in this year's General Assembly — House Bill 279.

On the final night of the state legislative session Tuesday, lawmakers in the House and Senate overwhelmingly rebuffed Democratic Gov. Steve Beshear by overriding his veto of the one-paragraph bill that will become law in about three months.

The vote in the House was 79-15; in the Senate, 32-6. Almost all of the legislators siding with the governor were from urban areas or are minorities.

Most lawmakers were afraid politically to let the governor's veto stand, said Democratic consultant Danny Briscoe of Louisville, "because they feared it would hurt their chances of getting re-elected. This state is becoming increasingly conservative, so politicians are reluctant to do anything to go against that trend."

Louisville Mayor Greg Fischer, Covington Mayor Sherry Carran and the Kentucky Association of Counties, the Kentucky League of Cities and more than 50 other groups urged Beshear to veto HB 279.

Beshear said he supported religious freedom but worried that the bill had too many "unintended consequences" and could cost governments money in expensive and prolonged lawsuits.

Legislators who opposed the bill echoed Beshear's concerns.

During debate on HB 279 on Tuesday, Rep. Darryl Owens, D-Louisville, said HB 279 was a solution to a problem that didn't exist.

"This is a piece of legislation looking for a reason," Owens said. "Because there is no reason for it, other than what I perceive to be pandering to a certain segment of this community."

Owens said there have been cases where people have cited religious beliefs to not comply with certain laws — such as a man who didn't want to get his picture taken for his driver's license because it was against his religious beliefs. That case went to the courts, Owens said.

Rep. Ruth Ann Palumbo, D-Lexington, said that she, too, was concerned that cities, counties and the state will be forced to go to court every time someone cites a religious belief so he doesn't have to comply with a law.

"It will cost them money that they don't have," Palumbo said.

But Rep. Stan Lee, R-Lexington, said House Bill 279 was needed because religious freedoms were being curtailed in Kentucky.

Prayer and the Bible have been taken out of schools, and people can no longer practice their faith in public, he said.

"There have been attempts to take God out of everything," Lee said. "There have been attempts to take God out of the Pledge of Allegiance. Can you believe that?"

Sen. Kathy Stein, D-Lexington, said she still questions the motivations behind the bill. Lexington, Louisville, Covington and Vicco have local ordinances that prohibit discrimination based on sexual orientation. State and federal civil rights laws do not protect people based on sexual orientation. Those local ordinances are the only protection for the gay, lesbian and transgender community, she and other opponents of the bill said.

"I think this is about some way to get around the fairness ordinances," Stein said. It gives anyone opposed to them "a terrific, terrific defense," she said.

The law's supporters deny that's the case.

Delahanty said the law is needed in light of the Kentucky Supreme Court ruling last year that upheld a state law requiring the Amish to display bright orange safety triangles on their buggies so motorists could better see them.

Several Amish men in rural Western Kentucky felt so strongly that displaying the triangles violated their religious belief against calling attention to themselves that they went to jail rather than comply with the law.

"That high court ruling lowered the standard by which the state could infringe on the free exercise of religion," Delahanty said.

Backers of the bill say 16 other states and the federal government have similar laws. Rep. Bob Damron, D-Nicholasville, sponsor of HB 279, said those states have seen few if any court cases after a religious freedom bill is passed.

A law professor at Wayne State University looked at 16 states with religious freedom laws and found that they have been a disappointment for those who have pushed for their passage.

In the 2010 study, Christopher Lund, the article's author, found that four of those states reported no lawsuits. Six of those states reported two or fewer court cases where religious freedom was claimed as a defense. Moreover, the courts overwhelmingly sided against people who were using religious freedom as a defense, Lund's study said.

But Stein, who is a lawyer, said that the law review articles on religious freedom bills did not look at the differences in wording of those state religious freedom laws. Kentucky's bill is broader and more vague than the federal religious freedom act passed in 1993, Beshear said when he vetoed HB 279.

Stein also noted that many discrimination cases are not pursued in the courts or even with local human rights commissions.

Just because there have not been legal cases doesn't mean that religion has not been used as a basis for discrimination in those 16 other states, she said.

Jordan Palmer, president of the Kentucky Equality Federation, said that the fairness group will be the first to challenge the law if the group receives a complaint.

"Kentucky Equality Federation's legal department will sue the commonwealth of Kentucky with the first complaint we receive that House Bill 279 has been used to justify discrimination, termination, or school bullying regardless of sexual orientation or gender identity," he said.

Delahanty said he does not think the gay and lesbian community should be concerned about the new law.

"I'm not suggesting that gay people are not looked down on in some quarters in America. I know the gay community has suffered enough, but this law does not do away with laws against discrimination," he said.

Text of religious freedom law
Government shall not substantially burden a person's freedom of religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A "burden" shall include indirect burdens such as withholding benefits, assessing penalties or an exclusion from programs or access to facilities.

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