No Protection for Gays

No Protection for Gays

There’s a bill speeding its way through Congress that would shred much of the protection against discrimination provided by the dozens of local and state gay civil rights laws.


There’s a bill speeding its way through Congress that would shred much of the protection against discrimination provided by the dozens of local and state gay civil rights laws. It bears a highfalutin’ title–the Religious Liberty Protection Act (RLPA)–and it prohibits states from “placing a substantial burden upon a person’s religious exercise.” Conservatives like RLPA–whose author is GOP pitbull Charles Canady of Florida–because it strengthens the place of organized religion in society. Liberals like the bill because it would protect minority religions in, for example, the wearing of beards, turbans or yarmulkes, or taking off religious holidays not celebrated by employers. Nearly half the original sponsors are Democrats. And RLPA is backed by a puissant coalition of some seventy religious, professional and political groups from across the spectrum.

But now the American Civil Liberties Union, originally a strong supporter of RLPA, has withdrawn from that coalition after careful study of the bill, charging–as ACLU legislative counsel Christopher Anders puts it–that RLPA is “a devastating piece of legislation on sexual orientation, marital status and the like that would upset the balance of civil rights laws at the state and local level.” And a number of original RLPA sponsors–including liberal Democrats Jerrold Nadler, William Delahunt and Robert Wexler–have taken their names off the bill because of their concerns about how it would affect local gay rights laws.

Many religions teach that homosexuality is a “sin” and an “abomination” that can never be condoned. RLPA would grant those claiming such beliefs a religious liberty exemption from gay rights ordinances and would also permit other forms of bigotry. While the limits of RLPA would ultimately be decided by the courts, on its face the bill would permit people to cite religion as a reason for discriminating not just against homosexuals but also against people with other differences of which they disapprove on some ostensibly religious grounds. Thus, as the ACLU put it in testimony before the House Judiciary Committee in mid-May, “If RLPA becomes law, an applicant for a job or housing may have no state law protection against having to answer such questions as: Is that your spouse? Are those your children? Are you straight or gay?… Are you HIV-positive?”

Judiciary Committee member Nadler offered an amendment that would prevent RLPA from overriding local civil rights laws. But it was recently defeated on a voice vote in Judiciary’s constitutional subcommittee. That’s why all major national gay rights and AIDS organizations oppose RLPA in its current form, as do the American Nurses Association, the National Organization for Women, the Feminist Majority, Women Employed and the National Catholic AIDS Network. Sadly, the Beltway liberal lobbies are divided on the issue. For example, People for the American Way, apparently having forgotten how much gay money it raises, continues to support RLPA and opposes the Nadler amendment, preferring–as its legal director Elliot Mincberg explains–to seek a “compromise” when the bill reaches the Senate and to rely on the courts to sort it all out.

This argument is doubly flawed. In the first place, the Nadler amendment is already a compromise, for it would still allow discrimination against gays in owner-occupied housing, small businesses and religious-run institutions. Second, the track record of our conservative courts on such cases is discouraging. The US Court of Appeals for the Ninth Circuit, which covers the Western states, recently ruled in favor of a landlord’s claim that compliance with a local civil rights law protecting unmarried couples from discrimination based on marital status “burdened” the landlord’s religious beliefs. The court thus called into question all local rights laws not motivated by what the decision called a “firm national policy” against specific forms of discrimination (like the constitutional protection against race discrimination). There is, of course, no national civil rights law protecting gays. Courts in Massachusetts and Minnesota have also held that there is a religious liberty defense against state civil rights laws. Moreover, if RLPA passes, the gay movement could be bankrupted by the costs of defending against court challenges to gay rights laws, which Christian right groups testified to Congress they would bring.

RLPA is opposed on states’ rights grounds by some thirteen “libertarian conservative” GOP Congress members and by a few conservative groups. But Democrats are disunited: On gay issues a floating bloc of Boll Weevil homophobes and timorous swing-district Dems usually provides from forty to eighty votes against us. Democratic House Judiciary staffers predict that if the House votes on RLPA without the Nadler amendment, it will pass easily.

There’s no time to lose. The full Judiciary Committee again defeated the Nadler amendment and favorably voted out RLPA on June 23, and the bill could be brought to the House floor within days. RLPA’s chief Senate sponsor, Judiciary Committee chairman Orrin Hatch, has promised to schedule hearings on the bill in July. Contact your member of Congress today, and insist on a vote against RLPA (HR 1691) unless it includes the Nadler amendment.

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