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Legislators differ on religious rights and anti-gay discrimination

Sen. Steve O'Ban, R-Pierce County Credit: John Stang

It's how you parse the words. And how a lawyer reads in between the lines.

A proposed religious freedom bill could be a tool to legally survive an anti-discrimination lawsuit. Or it could be a way to ensure all of Washington's existing freedom-of-religion safeguards are gathered into a simple-to-grasp master law.

Sens. Mike Padden, R-Spokane Valley, and Adam Kline, D-Seattle, see that bill in different lights.

Padden and Sen. Steve O'Ban, R-Pierce County, drafted the proposed bill to address how individuals can keep their religious rights when legally threatened. Padden said scenarios that concern him include a case of baptism being forbidden at the Capitol campus' Heritage Park in Olympia while secular protests are allowed, plus ensuring that churches renting school property for activities can be allowed to continue to do so.

 "Having this statute in instead of a lot of case law makes everything clearer," Padden said.

But Kline sees the bill as a way for people who discriminate to be able to claim religious exemptions from the law, allowing their positions to be upheld on appeal. He contended it would help future cases similar to two Olympia pharmacists who were sued for refusing to stock "morning-after" birth control pills due to religious reasons, and a Richland florist refusing to provide flowers to a gay wedding because of religious reasons.

 "It's intent is for discriminating businesses to prevail in court," Kline said.

Padden and Kline both contended the other's examples — baptism in parks versus refusal to serve gay weddings — are not the real targets of the bill.

The proposed bill has a somewhat similar focus as 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. One difference in the language of the new proposal 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 on religious beliefs unless the state can provide "compelling government justification" for legal action.

The Washington Senate Law & Justice Committee discussed the proposal Wednesday in Burien in front of about 65 people. Padden is the committee's chairman, and O'Ban is its vice chairman. Kline is the committee's ranking Democrat. O'Ban is one of the attorneys representing the Olympia pharmacists in the case's appeal to the federal Ninth Circuit Court of Appeals.

The committee was briefed by its attorney, Tim Ford, University of Gonzaga law professor David DeWolf and Steve McFarland, attorney for Federal Way-based World Vision, which conducts relief efforts overseas. In 2010, the 9th U.S. Circuit Court of appeals upheld World Vision's firing of three employees — at least two being Christian — because their interpretation of Jesus being part of the Holy Trinity was different from the organization's view.

DeWolf had reviewed the draft bill for Padden. "This bill does not effect a radical change in the law. Quite the contrary. It provides clear guidance to government agencies, courts, religious bodies, businesses and private citizens to the scope of the religious freedom guarantee already found in the state constitution. … Failing to pass this bill would leave courts, government agencies, religious bodies and private citizens in the unenviable position of guessing what the state constitution wants," DeWolf said.

DeWolf argued that religion is a private matter and religiously observant citizens should not be penalized for their beliefs. The bill "is kind of a religious insurance policy," McFarland said.

McFarland said a claimant would have to show a legitimate, longstanding belief to seek a religious exemption from a state law, while governments would have to show a highly compelling state interst to overrule an individual's religious stance. "This does not give an automatic get-out–of-jail-free card or free pass to religious claimants," McFarland said.

Kline believes liberals sometimes shortchange religion as a right, arguing that religious and non-religious rights should be equal in consideration. 

However, Kline contended the proposed would rank a religious claim at a higher level than a claim of another constitutional right. "Your bill requires religious-based rights to trump the non-religious rights." Kline said.

Committee member Sen. Jeanne Kohl-Welles, D-Seattle, said, "I worry that this, if enacted into law, would be used for discrimination."

Citing an analysis by James Lobsenz, adjunct law professor at Seattle University, Kline voiced concerns about the proposed bill unconstitutionally stopping private parties from filing anti-discrimination lawsuits against other private parties — contending the unconstitutional aspect of the bill is lumping private litigation in with state-originated litigation. Padden said that issue could be explored in the upcoming months.

The bill cannot be formally filed until the beginning of the 2014 legislative session. The current draft can still undergo changes.

Ford said 18 states have similar laws, and he provided some background on them.

For exclusive coverage of the state government, check out Crosscut's Olympia 2013 page.

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