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

Updated: A Republican committee chair takes issus with Democratic descriptions of what will be presented at a hearing Wednesday.

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. 


In a press release on Monday, Padden elaborated on what he and O'Ban have in mind on religious freedom. “Every so often it makes sense to update the state code so it’s in line with court decisions, and this would be an example,” he said “For instance, our courts have held that it’s OK for churches to use public-school facilities for Sunday services. Why not make it clear in state law that people and groups — be they Christian, Jewish, Muslim, Buddhist, Sikh or of another faith — may not be excluded or be the target of discrimination because of their religious values?

“Faith-based organizations have every right to be present and participate in the public square. While the First Amendment lists religion ahead of speech, and the press, it seems that protection isn’t as well-known. I’d rather bring state law up to date now than wait until after someone has lodged a complaint about, say, baptisms being performed in a city park." 

Padden said the proposed bill does not resemble the bill submitted by Brown last April that would have allowed businesses to refuse service to customers their religious or philosophical convictions dictated such a course. "I really don't think it does," he said in a Tuesday phone interview. Padden said Kline's white supremacist analogy is false under how the bill is written

Brown's bill was introduced too late in the 2013 session to get any hearing. Brown introduced her bill in response to the state suing the Richland flower shop for alleged discrimination because it refused to serve a gay wedding.

Padden said Wednesday's proposed bill resembled a resolution introduced last April by Kline that stated religion does not threaten the laws of Washington and the United States. The Senate passed that resolution on April 19.

However, Kline on Tuesday stuck with his interpretation of the bill — saying Wednesday's proposal seeks to elevate religious rights above other constitutional rights. Kline contended religious and other constitutional be treated equally with remedies available to both sides of a dispute between two types of rights. Kline said the proposed bill does not resemble his April religious freedom resolution. "He wants to make (Wednesday's bill) seem innocuous," Kline said of Padden's description of the bill.

Padden countered that Kline's "innocuous" comment is wrong.

Kline and Padden each have run the draft by separate law professors. James Lobsenz, adjunct law professor at Seattle University, wrote that the draft he studied called for eliminating private lawsuits on the matters covered by the bill. Lobsenz found that the way the draft is written pertaining to private lawsuits is unconstitutional under the Washington constitution. Meanwhile, Padden said David DeWolf, law professor at Gonzaga University, reviewed a draft and found it complied with the state constitution.

Several drafts of the bill are floating around informally, with a formal proposed bill not publicly released yet.

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


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About the Authors & Contributors

John Stang

John Stang

John Stang is a freelance writer who often covers state government and the environment. He can be reached on email at and on Twitter at @johnstang_8