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State Republicans look at new tack to allow refusal of service to gays

Updated: A Republican committee chair takes issus with Democratic descriptions of what will be presented at a hearing Wednesday.
A rainbow of cupcakes were among the many foods and beverages donated by local businesses to celebrate the first same-sex weddings here.

A rainbow of cupcakes were among the many foods and beverages donated by local businesses to celebrate the first same-sex weddings here. Jennifer Jones

Updated at 10:30 p.m. Sept. 10 to reflect new comments from legislators

Washington Senate Republicans are looking at a tweaked version of a bill that might allow businesses to refuse service to customers on the basis of religious beliefs.

The new bill appears to be prompted by the legal cases of a Richland florist who refused to serve a gay couple getting married and of two Olympia pharmacists who refused to stock "morning-after" birth control pills, said Sen. Adam Kline, D-Seattle and ranking minority member of the Senate Law & Justice Committee.

In the Richland flower shop case, the attorney general's office has filed charges against Arlene Flowers, alleging the state's first major violation of a 2012 law that legalized gay marriage.

The Law & Justice Committee is scheduled to discuss some version of a bill on religious freedom at 1:30 p.m. Wednesday at the Law and Justice Center in Burien. In comments after this story first appeared, the committee's chairman, Sen. Mike Padden, R-Spokane Valley, took issue with Kline's description of the bill that will be discussed in committee. He said the bill will deal with other  religious issues. 

The religious freedom bill to be discussed Wednesday will not address allowing businesses refuse service to customers because of their religious beliefs, said Padden. Instead, the Senate Law & Justice Committee will discuss a proposed bill — the "Religious Freedom Restoration Act"  — to allow some religious functions on public property, said committee chairman Sen. Mike Padden, R-Spokane Valley. Padden and Sen. Steve O'Ban, R-Pierce County, are writing the bill.  

A draft version of the proposal on businesses is similar to a bill introduced at the end of the Legislature's regular 2013 session by Sen. Sharon Brown, R-Kennewick. Brown's bill went nowhere because it was introduced three days prior to the regular session ending. Her bill was prompted by the Richland flower shop case. The difference in the language of the new draft, which has no sponsor listed, and Brown's bill is that her legislation would allow people to refuse service to others because of religious beliefs, philosophical beliefs or matters of conscience — while the new bill mentions only religious beliefs. The new bill would forbid government and private lawsuits unless the state can provide "compelling government justification" for legal action.

Kline said a business and a customer should have equal constitutional rights, and the proposed bill would tip that balance in favor of the provider's religion.

Kline wrote in an email, "Under this bill, rather than balance the competing constitutionally protected rights of the parties, as courts do now, we are simply to favor the one that is claimed to have a religious basis. Since the religious dictates by which a person lives are not subject to court judgment as 'right' or 'wrong,' and need not have their origin in any existing religion, they are effectively whatever one says they are, however clearly they may violate the equally constitutionally based rights of others. ... Looks to me that this is designed to curtail state action, broadly defined, whenever it would hamper any person’s religious activity, however idiosyncratic." 

Kline said a merchant or doctor belonging to a white supremacist church could deny service to a black or Hispanic person under the proposed bill. That denial could be especially harmful if the person using this bill is the only doctor or merchant for a specific item for many miles — a scenario possible in rural Washington, he said. He also speculated that student-led prayers could be performed at school activities under this proposal.

However, Kline contended religious safeguards should not be shortchanged or consigned to second-class status, although he believes they should not be elevated over other constitutional rights.

For example, he speculated that the pharmacists who don't want to stock "morning-after" birth control pills because of religious reasons should able to do so as long as they are prepared to send customers seeking such pills to an accessible pharmacy nearby that stocks them. O'Ban, who is working with Padden on religious freedom legislation. is also one of the attorneys representing the pharmacists mentioned by Kline. 

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Posted Sat, Sep 7, 8:35 a.m. Inappropriate

John, can you post a copy or link to the draft bill? If the bill has no sponsor, are you sure it's sponsored by a Republican? I know it's probably a safe bet, but still...maybe a follow up to your story would be appropriate since you were not able to make contact with anyone but Sen Kline.

Posted Mon, Sep 9, 3:20 p.m. Inappropriate

Hi Policypurist,
Sorry to be slow but we've just updated with the Word version of the draft bill linked in the text (7th paragraph, which begins "The difference in the language ..."


Posted Sat, Sep 7, 9:19 a.m. Inappropriate

If such a bill passes, are we slipping into a discriminatory model? No jews allowed to attend the symphony. No muslims allowed in a catholic hospital...


Posted Sun, Sep 8, 7:05 a.m. Inappropriate

Although writing about this sort of bill makes good fodder on slow news days, no such bill will ever become law in Washington State. And I'm willing to put money on it.

The use of the phrase "State Republicans" seems to insinuate that this is a position or a bill that would be supported by all Republicans. There are Republicans on both sides of the Cascade who are fiscally conservative but socially progressive (throwbacks to the Eisenhower Administration, maybe) and who would not support such a bill, even if it could be written in a way that passed constitutional muster.

Anyway, nice buzz-y headline!

Deb Eddy

Posted Tue, Sep 10, 7:30 p.m. Inappropriate

Sorry but no, there are no such "Eisenhower" Republicans. If there were, they would speak up.

Posted Sun, Sep 8, 7:24 a.m. Inappropriate

Good, I hope it passes. I do not want to spend my money at establishments that would secretly discriminate. Let people be who they want to be, if a business does not want to make your cup cakes because they cant stop fixating on what is going on in your bedroom then you do NOT want them making food you or anyone you care about will be eating. Most importantly you do NOT want to give them any measure of profit. Dollars speak louder than words in many many cases, in particular in the case of small businesses, they will all be out of business in no time.


Posted Sun, Sep 8, 11:28 a.m. Inappropriate

Agreed. This isn't the Old South where Jim Crow laws were enforced as government policy, so businesses were not allowed to decide who they would cater to. And the state does not suffer from such a dearth of florists or pharmacies that a few would be missed. Let the market decide their fate.


Posted Tue, Sep 10, 4:30 p.m. Inappropriate

If this law passes, it enables those who claim a religious basis to use the force of state law ("government policy") to discriminate. How is that any different from Jim Crow except for the claimed basis of the reason for wishing to discriminate? One is based on racism, the other religion. Hmmm.


Posted Wed, Sep 11, noon Inappropriate

It's different because businesses are not required to discriminate against gay couples, or people seeking birth control. Jim Crow was a systematic, state-mandated, all encompassing regimen of discrimination, based on hatred, from which there was no escape except to move out of the South. Here, we're talking about a handful of businesses who would prefer to lose business rather than violate what they perceive to be their own benign religious beliefs. I don't share those beliefs, but these businesses are hurting nobody but themselves. There are plenty of other places to spend my money. These business owners cannot oppress me or anyone else. They don't have the power to.


Posted Wed, Sep 11, 6:01 p.m. Inappropriate

OK, you have a point on my second sentence, but you haven't responded to the first: the law gives legal approval ("color of state law") to discriminatory animus based on a suspect class. Jim Crow: racial animus based on race; "Religious Freedom Restoration Act": religious bigotry based on gender orientation.

No kind of bigotry should have the slightest whiff of state approval, regardless of "they don't have power over me." If you have a business in your neighborhood that exercises such bigotry, it tends to displace the opportunity for a similar business that doesn't. If I need to use the services that business provides, and the next nearest provider is inconvenient, you put the burden of countering bigotry on me. Their very presence in our community is oppressive.


Posted Thu, Sep 12, 8:09 a.m. Inappropriate

This isn't about state "approval" of their actions. It's about whether their actions rise to the level of oppression of a minority. They don't. To really oppress people you need either a far-reaching conspiracy, or government action. In the case of these vendors, the state isn't forcing anyone to do anything, and that's the whole point. If you don't like their discrimination, go elsewhere. If you love their discrimination, maybe you and a handful of others can keep them financially afloat - - or maybe not. It's all entirely voluntary. There is no government compulsion involved. And if the courage of your convictions doesn't rise to the level of enduring a little inconvenience, then they aren't really convictions, are they?

I encounter things every day that I don't like. Things I find disgusting, even repulsive. But those things don't oppress me, and I wouldn't dream of using the power of the state to stop anyone from doing anything just because I don't like it.


Posted Sun, Sep 8, 3:55 p.m. Inappropriate

It would be nice if anti-discrimination laws were evenly enforced by the attorney general. A florist in Richland discriminates based on sexual orientation, and the AG jumps in- a restaurant in Tacoma discriminates based on creed and that is just okay. Why are gays allowed to pressure a restaurant to discriminate against a conservative chuch- based on its beliefs- and Bob Ferguson just sits there. I guess only liberals are deserving of protection...

Posted Mon, Sep 9, 2:53 p.m. Inappropriate

I understand the case Mr. Stang is making and largely sympathize. But I have to admit that, in the trigger instance-- the Richland Florist -- think the Attorney General is wrong. Why should someone be prosecuted for holding views that were politically and socially normal up until four years ago? remember when President Obama stated that he thought marriage was between a man and a woman? Few people were outraged. Rather quickly what was conventional thought has now became, not just unenforceable, but illegal and punishable by the intimidating power of the AG. It is a case of our legal system jerking the populace toward a 180 degree change of attitude in less than one-quarter of a generation. Bad sociology and bad law. I hope the AG gets his jury trial and I hope he loses.


Posted Mon, Sep 9, 4:01 p.m. Inappropriate

Social norms change. It also used to be acceptable to refuse service to blacks and Jews. Times they be a changin'. And generally in the right direction. Part of owning a business - if folks are courteous and can pay for the service - you have to provide it. You can be dicriminatory at home, not a business.


Posted Mon, Sep 9, 6:17 p.m. Inappropriate

The social norms you mention are an order of magnitude different from same sex marriage. Before Brown v Board of Education at least 36 or 37 states provided integrated education; the eleven or so states that did not were not "social norms"; they were outliers. What they did was not generally acceptable and was deplored by a substantial part of their own population. Did any President (since, maybe Wilson) ever say "blacks and whites should not go to school together" or "I won't stay at the same hotel as blacks". Black equality of education and job access was not a bombshell; it was woven into our society over several decades.


Posted Mon, Sep 9, 9:19 p.m. Inappropriate

Depends who you ask. How about a gay couple refuse social security benefits or inheritance law benefits. Why does this have to be some made up zero sum game and not just what it is - recognizing human rights.


Posted Tue, Sep 10, 4:57 p.m. Inappropriate

John Stang - this is incorrect: "...alleging the state's first major violation of a 2012 law that legalized gay marriage."
The violation is of the anti-discrimination bill passed in 2006 that included LGBT residents of Washington to the classifications of protected individuals. You need to do more homework.


Posted Wed, Sep 11, 9:57 p.m. Inappropriate

I don't think this bill would pass Washington state constitutional muster. The constitution concerning religious freedom says: "the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness" and 'licentiousness' is "The indulgence of the arbitrary will of the individual, without… respect for the rights of others."
We have a right to religious freedom, not a right to religious discrimination, the customer's own right to religious freedom will trump the businesses right to religiously discriminate, or in this case the customer's right to believe in gay marriage trumps any right the business has to discriminate against them because they don't.


Posted Thu, Sep 12, 11:33 a.m. Inappropriate

Good summary. That's the nut of it.


Posted Thu, Sep 12, 8:44 p.m. Inappropriate

This has nothing to do with religious freedom, other than giving these extremists free rein to discriminate against people for any reason they want - including the victims religion. No Sharia law in Washington!

Steve E.

Posted Thu, Sep 12, 9:03 p.m. Inappropriate

I've now read the draft "First Freedom Preservation Act." It elevates so-called "freedom of religion" above all other rights. It would essentially nullify all local zoning laws as they apply to any religious establishment or, for that matter, anyone who claims that they are acting from a religious basis.

And I wonder if these christian fascists have considered that under this the Rastafarian gay couple next door can proselytize to their children to use the sacred herb - and even give the kids a sample. LOL.

Steve E.

Posted Fri, Sep 13, 6:44 a.m. Inappropriate

You need a toke to chill out. It's the law. I suppose you can start your on commune in Utah if you wish.


Posted Fri, Sep 13, 9:15 a.m. Inappropriate

Again, because of our state constitition (thank you founders with your 'liberal' religious sensibilities) and its specifically saying freedom of religious conscience does NOT mean the person can step on the rights - specifically the religious freedom rights - of others because of it, I don't think this legislation could even pass constitutional muster.

Our constitution basically makes any legislation allowing such 'religious litmus tests' by businesses unconstitutional, the customer's right of religious freedom will always trump the non-existent right of religious discrimination. Not that an individual can't religious discriminate it just isn't a right that would allow them to do so at the expense of someone else's rights.

The recent 'morning after pill' was decided on the same grounds at a federal level - if the state was going to allow pharmacy owners to decide not to carry the pill for secular reasons the government couldn't use a religious litmus test to say that another pharmacy couldn't make the same decision. And that case hinged on the SCOTUS 9-0 ruling from the other side - a town passed a law prohibiting the sale of goats for religious sacrifice - they said that was unconstitutional since the customer's right of religious freedom could not be interferred with by a government sanctioned religious litmus test. From either direction the government can not institute religous litmus tests in regard to business, which this bill most certainly would be.

The point the people advocating these measures always forget is that every citizen has their own right to religious freedom and that means they always have a right to NOT share the businesses religious values or use their purchases for things not consistent with the business's religious beliefs and still do business with them anyway.

As Scalia recently repeated the words of Justice Frankfurter in a ruling:
"Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities... To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."
- Supreme Court Justice Felix Frankfurter


Posted Sun, Sep 15, 8:44 a.m. Inappropriate

Businesses do not have constitutional rights, people do. A person does not have a constitutional right to be a pharmacist; that is a license granted by the state through the Board of Pharmacy. A person cannot be forced by the state to be a pharmacist but if a person does so choose, voluntarily, the provision of the morning after pill comes with the license and the job.

Posted Sun, Sep 15, 10:35 a.m. Inappropriate

The problem is the state didn't require all pharmacies to carry the pill; they allowed a number of reasons where the pharmacy could personally choose not to carry it. The ruling was if they allowed personal choice about carrying they could not arbitrarily prohibit reasons with a religious basis - no religious litmus tests by the government.

If they really wanted to make everyone carry the pill there should have been no personal decision exceptions: a universally mandated requirement would not have left room for the ruling that came down.


Posted Sun, Sep 15, 5:27 p.m. Inappropriate

Under this theory, may an observant Jew forbid her employees from spending any part of their paychecks on bacon? If employees of Catholic hospitals will not get coverage for contraception, then the bacon-ban seems only fair. And hey, no coffee if your boss is Mormon. Another brilliant Republican idea.

Posted Mon, Sep 16, 9:52 a.m. Inappropriate

No analogy is perfect, but those are rather defective. Much closer would be comparing the current situation to the state forcing a Jewish employer to provide employees with bacon and egg breakfasts, or a Muslim one to provide a coffee maker in the break room. At what point does the state itself become oppressive when it seeks to control behavior that it finds oppressive? Does it all depend on whose ox is being oppressed?


Posted Mon, Sep 16, 7:13 p.m. Inappropriate

No yours is a faulty analogy. This would be about a deli THAT DOES make ham and egg sandwiches refusing to sell one to Jews. This is about a business picking and choosing what they do make by using a religious litmus test on the customers.

Arelene's Flowers makes wedding floral arrangements but refused to sell them to a customer because the belief based reason they are going to use them, a same sex marriage, didn't pass the business owner's religious litmus test.

Again, this has already been decided by the federal Supreme Court - a business wasn't going to sell a goat for religious sacrifice even though they were in the business for selling goats for slaughter. 9-0 ruling that this was unconstitutional, not merely illegal. The customer's right to their religious freedom trumps attempts at religious discrimination.

Either the business sells goats for slaughter or they don't.
Either the business sells wedding floral arrangments or they don't.
If they do they can't refuse to sell to someone because they didn't pass a religious litmus test for a faith they do not share and have a constitutional right not to share.


Posted Mon, Sep 16, 8:04 p.m. Inappropriate

"No yours is a faulty analogy. This would be about a deli THAT DOES make ham and egg sandwiches refusing to sell one to Jews."

That doesn't even make sense. Why would a practicing Jew want to buy a ham and egg sandwich? And how would the deli owner know his potential customer was a Jew? OK, the customer might be wearing a yarmulke, but that circles back around to question number one.

Again, my point is that a few isolated businesses, which want to turn away customers with cash in hand, harm nobody but themselves. And if this issue has already been settled at the federal level as you say (and thanks for that tip - I was unaware of the goat case -- [Oh, and BTW, what does PETA think about that?]) then what's the point of this article? I like a philosophical debate as much as the next man; but if the issue is settled, well, this discussion is for naught.


Posted Sun, Sep 15, 5:28 p.m. Inappropriate

Under this theory, may an observant Jew forbid her employees from spending any part of their paychecks on bacon? If employees of Catholic hospitals will not get coverage for contraception, then the bacon-ban seems only fair. And hey, no coffee if your boss is Mormon. Another brilliant Republican idea.

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