Under the radar and with clever wording, social conservatives in several states are trying to make it illegal for local communities to protect their LGBT citizens from discrimination in housing and employment. And they hope that by not explicitly mentioning "sexual orientation" in the legislation, judges may let the proposed laws stand where they otherwise would be unconstitutional.
Currently, 21 states and the District of Columbia have laws that ban discrimination in housing and employment with respect to either sexual orientation or gender identity or both. In other states, it is perfectly legal to fire someone for being gay, lesbian, bisexual or transgender, or to deny them housing. As a result, many local communities have taken steps to fix that inequity through nondiscrimination ordinances of their own.
The Human Rights Campaign estimates that more than 160 communities have enacted comprehensive anti-discrimination laws, and dozens more have enacted incomplete ordinances that leave out the transgender community or that only provide limited protections.
But under proposals by Republicans in several states, such ordinances in Lawrence, Kans., Missoula, Mont., and Kalamazoo, Mich., would be illegal.
Bills in Oklahoma, Kansas, Nebraska, and Michigan would bar local governments from enacting laws that prevent discrimination against any group not already covered by that state's own nondiscrimination laws. Montana's House passed a similar bill last year, but it died in the Senate.
The bills are crafted in the likeness of one passed in Tennessee last year.
"These laws are a new strategy by national anti-gay groups who want to turn back the clock and take rights away from gay people," Kate Kendall, executive director of the National Center for Lesbian Rights, told The American Independent.
Kendall's group is supporting a lawsuit in Tennessee over a bill that passed last year that prohibits local governments from enacting nondiscrimination acts that protect groups -- LGBT individuals, for example -- not covered by the state's nondiscrimination law. Tennessee lawmakers objected to Nashville's passing of an ordinance last April and by May had presented Gov. Bill Haslam with a bill to effectively repeal it, which he signed into law.
The bill was carefully crafted to differ from a 1992 ballot initiative in Colorado that explicitly banned LGBT rights laws in the state. The U.S. Supreme Court in Romer v. Evans ruled that law was unconstitutional on grounds that it violated the equal protection clause of the 14th Amendment to the U.S. Constitution.
"[Amendment 2] is at once too narrow and too broad," the Supreme Court wrote in its decision. "It identifies persons by a single trait and then denies them protection across the board."
Unlike the Colorado initiative, the Tennessee law says that nondiscrimination laws can only apply to the "extent recognized by the state," so if the state doesn't have protections for LGBT people, neither can local communities. It doesn't explicitly ban LGBT rights ordinances, but that is the practical effect.
"The right-wing groups are trying to get around Romer, so they have attempted to hide the animus behind the laws both by making them seem facially neutral and by being very careful during debates and in public campaigns not to frame these laws as LGBT-focused," said NCLR's Kendall.
"Of course, it’s hard for these groups and politicians to do this," she added, noting that the anti-LGBT animus eventually comes out.
In Montana, for example, the anti-LGBT motives behind the bill became clear when a pastor testified in support of it by saying that the Christian Bible calls for the death of homosexuals.
Legislators tried to pass a bill similar to Tennessee's last year in Montana. It was sponsored by Rep. Kris Hansen, passed the House last spring, and died in a Senate committee in late-April.
The bill was intended to repeal Missoula's new anti-discrimination ordinance, and the Billings Gazette wondered why Hansen, who lives hours from Missoula, sponsored a bill that would only impact Missoula.
But it was the Concerned Women for America that gave it the most support.
"The 1st Amendment to the U. S. Constitution does protect the free expression of religion, but the rights of homosexuals trump it in every case," Jeanette Zentgraf, Communications Coordinator for the Montana chapter of CWA, said at the Mar. 14 hearing at the Senate Local Government Committee. "Once 'sexual orientation' was added to the laws in 20 states, Christians not longer hand [sic] an equal standing in the civil courts."
She added, "We are not concerned about individuals who happen to be homosexual, but we are concerned about the well-organized and well-funded homosexual agenda which can succeed only if Christianity is stifled."
It was the testimony of Pastor Harris Himes that demonstrated further anti-LGBT bias behind the bill. He's pastor of the Big Sky Christian Center in Missoula who also serves as the head of the Montana Eagle Forum, an affiliate of Phyllis Schlafly's Eagle Forum.
"There are those of us who would not wish to rent to gay and lesbian people for religious reasons and we should be allowed to do that," he said adding that he supported the bill and opposed Missoula's ordinance. "It's going to be a situation that would force churches to bring in people to do Sunday school, these homosexuals... [Himes was cut off by the chair for deviating from the topic]."
Rep. Diane Sands, a Democrat from Missoula, grilled Himes. "My question for you today is: You feel that [religious people] should be able to discriminate against LGBT if they will? What are those religious reasons for which gay people should be discriminated against?"
Himes responded, "They should be able to discriminate. They should be able to choose to whom they rent based on religious reasons, that goes to employment, that goes to Sunday school, that goes to all of those issues. And likewise, the religious reason is... it is God himself that says homosexuality is an abomination and he has various punishments for that too."
Sands followed up, "What are those punishments?"
Himes answered, "The punishment in Leviticus 20:13 is this: If a man lies with a man like a women, they shall surely be put to death. That's the punishment."
"It's cowardly," said Kansas Equality Coalition head Tom Witts in reference to the Kansas Preservation of Religious Freedom Act.
"It's purposefully written to obfuscate the true meaning of the bill which is to eliminate nondiscrimination ordinances," Witts told The American Independent.
The bill, HB2260, is much longer and much more convoluted than those proposed in other states such as Montana, Michigan or Nebraska.
Part of the bill reads:
"Compelling governmental interest" with respect to the prohibition of a practice or policy of discrimination against individuals in employment relations, in access to free and public accommodations or in housing shall not include any additional prohibitions not set forth in K.S.A. 44-1001 et seq., and amendments thereto, and the laws and constitution of the United States.
KSA 44-1001 is Kansas' nondiscrimination act. It prohibits discrimination based on "race, religion, color, sex, disability, national origin or ancestry."
The rest of the bill contains provisions against any government actions that might harm religious liberty and provides that people can sue if they claim that their liberties have been violated.
"All they have to do is assert a claim that religious liberty is likely to be infringed in order to have standing to sue," said Witts.
And, he said, it wouldn't only apply to municipalities. It would also prevent universities and colleges from having nondiscrimination policies in enrollment and employment and would prevent local school boards from enacting employment policies that protect LGBT staff and teachers.
Kansas chapter of the National Organization for Women has condemned the bill.
In testimony submitted to the House Judiciary Committee, the group wrote, "The 'Kansas Preservation of Religious Freedom Act' would allow employers and business owners to deny basic rights to a class of Kansas citizens in the name of 'religious freedom'. This is the same excuse that has contributed to the continued subordination of women in our society."
The Kansas Family Policy Council and the Alliance Defense Fund, both affiliated with Focus on the Family, submitted testimony in support of the bill, as did Concerned Women for America.
Jeff Colyer, Gov. Sam Brownback's lieutenant governor, also testified in support of the legislation, and the governor has indicated his support as well.
But the biggest backer appears to be the Kansas Catholic Conference, the public policy arm of the Roman Catholic Church in Kansas.
"We believe that HB 2260 is necessary as a bulwark against an alarming development in the interpretation and application of the First Amendment," the group wrote. "Increasingly, freedom of religion is being reduced and confined to little more than the freedom to worship in a private setting. Religious institutions should also be allowed to operate with integrity, and to pursue their ministries, without undue burdens being placed upon them by government. Opponents of a state religious freedom law have been busy making the inaccurate claim that it would legalize discrimination. To the contrary, a state religious freedom law would help prevent discrimination, namely government-sanctioned discrimination against people of faith."
KEC disagrees that the bill is not about discrimination against LGBT Kansas. It also provided testimony to counter that claim.
"That this bill is targeted at the lesbian, gay, bi and transgender Kansans is beyond doubt," the groups wrote in testimony submitted to the committee. The group alluded to anti-LGBT testimony last year. "Given last year’s testimony by the proponents, any claims by proponents today that HB2260 isn’t about sexual orientation and gender identity are nothing but spin and sophistry."
It's not just Republicans that are backing the bill in conservative Kansas. A Democrat is facing heat for statements she made in support of it that reveal the anti-LGBT animus behind it.
Rep. Jan Pauls, the ranking Democrat on the Judiciary Committee, told constituents that she supported the bill in order to protect "religious rights."
"If someone has a religious belief that is in conflict with certain beliefs that are not protected in the Kansas Civil Rights Act, then that person could say to an employee that they didn't want to hire someone if they are a crossdresser. If someone had a business didn't want to hire them -- or due to their sexual orientation -- that person could raise the issue of religious belief in litigation."
She said she worried that landlords would be forced to rent housing to people whose "lifestyles" conflicted with their religious beliefs.
Pauls, who authored the state's ban on same-sex marriage, found her statement facing criticism by the chair of the Kansas Democratic Party, Joan Wagnon.
"One of our legislators and someone I consider a friend, Jan Pauls has been outspoken on this issue. We don't all believe the same and legislators are entitled to their particular opinions and their vote, but I need to make it clear that the KDP believes in our platform statement [regarding nondiscrimination] and we do not support house bill 2260."
Joel Oster, senior litigation counsel for the Alliance Defense Fund, told the Desoto Explorer that "the legislation is needed to prevent government from forcing people to go against their religious beliefs."
While ADF has lobbied hard for the bill in the press and at the Kansas Capitol, Oster told TAI on Thursday that his group had no hand in crafting the bill.
Michigan is also facing a piece of legislation designed to scale back LGBT equality at the local level. House Bill 5039 would amend the Elliot-Larson Civil Rights Act, Michigan's nondiscrimination act pertaining to rights based upon religion, race, color, national origin, age, sex, height, weight, familial status, or marital status.
The bill reads, "A state agency or unit of local government shall not adopt any ordinance, rule, regulation, or policy that includes, as a protected class, any classification not specifically included as a protected class under this act. Any existing ordinance, rule, regulation, or policy that includes, as a protected class, any classification not specifically included as a protected class under this act is void."
It's not been received well in the state.
"This bill is one of the most appalling pieces of legislation we've seen come out of Lansing so far. It's a direct attack on the well-crafted local ordinances around the state that go above and beyond state law," Denise Brogan-Kator, executive director of Equality Michigan, said in a statement. The group is a statewide organization that advocates for LGBT rights.
"It also aims to exclude local voters from the democratic process. Local nondiscrimination ordinances are important - they send a crucial message that everyone, including LGBT people, should have a fair chance at a job," she added.
The bill is being carried by Rep. Tom McMillin, a Republican representing the far northern Detroit suburb of Rochester Hills. He's been the sponsor of a number of bills to curtail LGBT rights, and he had help with HB 5039.
While the bill's language makes it vague in terms of its impact on the LGBT community, the bill's supporters are not shy about the intent behind it.
"Rep. McMillin and I discussed this legislation in a meeting of pro-family lawmakers at the state Capitol in June and in private conversations before and after," Gary Glenn, head of the American Family Association of Michigan, told TAI. "It's simple and straightforward, providing that local governments cannot create special 'protected class' status on the basis of homosexual behavior or cross-dressing, which is in conflict with existing federal and state anti-discrimination laws."
He said it protects religious groups from the "discrimination and persecution they've regularly suffered under so-called 'gay rights' laws such as passed in a handful of Michigan cities."
According to the Human Rights Campaign, 12 cities and counties in Michigan have nondiscrimination ordinances that apply to the LGBT community.
McMillin's bill is still alive as it awaits a hearing in the House Judiciary Committee, but no such hearing is yet scheduled.
Nebraska's LB912 is a similar bill to Michigan's, and it reads (PDF):
A county, municipality, or other political subdivision shall not adopt or enforce a local law, ordinance, resolution, rule, or policy that creates a protected classification unless such classification is contained in the Age Discrimination in Employment Act, the Nebraska Fair Employment Practice Act, the Nebraska Fair Housing Act, or sections 20-126 to 20-143 or 48-1219 to 48-1227. This subsection does not apply to a law, ordinance, resolution, rule, or policy that applies only to the employees of the county, municipality, or other political subdivision. (3) Any local law, ordinance, resolution, rule, or policy adopted before the effective date of this act that violates subsection (2) of this section is null and void.
The bill has been backed by the Alliance Defense Fund. The group's senior counsel, Byron Babione, testified at the Feb. 22 Judiciary Committee hearing.
"This bill is a proactive measure that prevents local municipalities from creating novel protected classes which would necessarily prevent municipalities from diverting resources away from protecting the classes that the state legislature has carefully chosen such as race, religion, sex, and ancestry," he said.
He added that the ban on nondiscrimination ordinances would be good for business by "easing burdens on commerce."
While the ADF was careful not to say that the bill is about banning nondiscrimination ordinances that protect LGBT people, another bill supporter was quite clear in his testimony.
John Chatelain of the Statewide Property Owners Association compared gays and lesbians to drug addicts, recovering alcoholics, and people with tattoos.
"I don't think the case has been made LGBT people need special attention," Chatelain said. "They're already renting houses and apartments; they're already working. I don't know what's behind it; it appears to be an endorsement of the LGBT class."
He continued, "If this gets out of control maybe recovering alcoholics or drug addicts should be protected in housing and employment, maybe people with tattoos or body piercings should be protected, maybe gambling addicts, I don't know."
Sen. Amanda McGill, a Democrat from Lincoln, took exception to Chatelain's characterization.
"I just need to say for the record that I take offense at comparing members of our gay and lesbian community to addicts."
The bill has been tabled for the session and likely won't reappear this year.
Laura Belmonte, chair of The Equality Network (TEN), an LGBT rights group in Oklahoma, said she wasn't sure if any outside groups were behind a bill in that state to restrict nondiscrimination ordinances related to government employment.
"We don't have evidence suggesting as much in the case of the Reynolds bill," she told TAI. "Our guess is that this bill was a response to Oklahoma City adding sexual orientation to its public employee protections last November."
Oklahoma's proposed legislation would bar local units of government such as cities and towns from passing ordinances that protect LGBT workers from employment discrimination in government jobs. It differs a bit from bills in other states in that it only applies to government workers.
The bill, HB2245, reads, "Municipalities may enact nondiscrimination ordinances for municipal employees, but not more restrictive than the nondiscrimination laws for state employees provided for in Section 954 of Title 74 of the Oklahoma Statutes. Any existing or future order, ordinance or regulation which conflicts with this provision shall be null and void."
The proposed law means that any local nondiscrimination ordinance cannot be broader than the state's, which prohibits discrimination based solely on race, color, creed, national origin, age, handicap, or ancestry.
Any additional protections in hiring and employment, such as for sexual orientation or gender identity, would be prohibited.
Oklahoma City passed a nondiscrimination ordinance in November and follows other cities such as Tulsa, Del City, Altus, McAlester, Miami and Vinita. The Norman City Council is working on a policy as well.
This is Reynolds' second anti-LGBT bill this session. In January, he championed a bill that would have reinstated Don't Ask, Don't Tell in Oklahoma's National Guard. That bill has stalled.
The nondiscrimination ordinance ban died in committee last Monday on a vote of 5 to 6 with little discussion.
It took Republicans to vote the bill down, and Belmonte of TEN thinks she knows why.
"I believe there are more and more Republicans recognizing that they are sitting on a generational time bomb," she said. "They are becoming cognizant that the vehemently anti-LGBT politics espoused by people like Mike Reynolds or Sally Kern -- infamous for declaring that gay people pose a graver threat to the United States than terrorists -- offends voters under 35, whatever their partisan affiliation."
She said that Republicans in cities that have nondiscrimination ordinances may be wary of going against their local communities.
"And I think savvy conservatives understand that bills like HB 2245 directly violate cherished precepts of local control and small government," she added.
She said the bill may be dead, but Reynolds' plan to ban the ordinances is not. The group says it will hold an LGBT Equality Day at the State Capitol in early April to confront bills like HB2245 and watch carefully in case it is attached to other legislation.
TAI reporter Todd Heywood contributed to this report.