(as originally run in the Free Lance-Star on 05/18/2014)
by Claire Guthrie Gastañaga, ACLU of Virginia Executive Director

Earlier this year, Arizona Gov. Jan Brewer vetoed legislation that would have allowed businesses to deny service to gay and lesbian customers. The legislation rightly received national attention. For many of us, it conjured up memories of a time when people were refused service at hotels and lunch counters because of the color of their skin or the God they worship.
While the national media attention focused on Arizona, however, Virginia has been moving in this direction for years. This year the Commonwealth took another step toward legitimizing the idea that religion gives one a license to discriminate.

In the mid-1970s, after Virginia was sued for failing to conform its abortion laws to the federal constitution, the Virginia legislature passed a “conscience clause.” This caveat allowed hospitals and health care professionals to refuse to offer this medical service to Virginia women based on “personal, ethical, moral or religious grounds” even where the woman’s life is at stake.
In 2012, the Virginia legislature passed a “conscience clause” that allows state-funded adoption and foster care agencies to refuse to serve prospective parents or needy children based on the state-funded agencies’ “religious or moral convictions or policies.” This applies even to agencies receiving millions in state and local tax dollars and those performing public functions on behalf of foster children who are legally the commonwealth’s children.

In 2013, the Virginia legislature passed a law that requires public colleges and universities to recognize and fund student political and religious organizations. The law holds even if the organizations intentionally discriminate against gay or lesbian students (or people of different faiths or parties) in their membership or leadership. The argument maintains that their religious or political convictions compel such discrimination.

And, in 2014, a “con science clause” was written into otherwise harmless legislation to license genetic counselors (SB 330, HB 612 ) to refuse service to patients based on the counselors’ “deeply held moral or religious beliefs” and shield those same counselors from damages.

All of these so-called “conscience clauses” have one thing in common—they all allow a state-licensed or state-funded person or organization to engage in intentional and purposeful discrimination against any person or class of persons based on their “moral,” “religious” or, in one case, “political” beliefs.
In the case of this year’s genetic counselor bill, for example, a state-licensed professional will be able, based on the genetic information provided to the counselor, to deny counseling to any patient simply because:

  • the patient is lesbian or gay
  • is of a different religious faith
  • is unmarried and pregnant
  • the person may want to take an action with which the counselor doesn’t personally agree

This bill is so extreme that, like the early 1970s abortion “conscience clause,” it will shield a genetic counselor from dam ages even if the counselor took purposeful action based on his or her personal beliefs that results in actual physical harm or death to the patient.

While this year’s legislation may seem minor be cause it applies only to genetic counselors, its proponents have announced that it is just the next step toward licensing all professions and businesses in Virginia (e.g., lawyers, doctors, psychologists, hairdressers, plumbers, contractors, nurses, dentists among others) to discriminate based on their religious or moral beliefs without sanction or limitation. As The Family Foundation of Virginia has said, “[i]f genetic counselors can be protected from being forced to violate their conscience, it follows that all other professions should receive equal protection.”

Clearly, the proponents of so-called “conscience clause” legislation desire to use the genetic counselor legislation as a model for extending legal discrimination beyond abortion, adoption, student organizations and genetic counselors to all professions and businesses in Virginia. Unable to hold back the moral force moving toward equality for lesbian, gay, bisexual and transgender (LGBT) Virginians and assured reproductive freedom for women, “conscience clause” legislation does not, in fact, protect religious free exercise. It only serves to validate a new form of “massive resistance” to equal rights for women and sexual minorities.

The proponents of these “conscience clauses” are not satisfied only with protecting professions and businesses from adverse state licensing actions. In opposing the governor’s amendment to this year’s bill, they fought for blanket immunity that will protect people using religion to discriminate in public services or businesses from “any claim of damages.”
The governor’s amendment would not have stricken the clause entirely, as we would have hoped. It would only have limited the “con science clause” protections to licensing actions. Also, it would eliminate blanket immunity and protect patients from harm by ensuring that genetic counselors, who choose to deny services based on their personal beliefs, provide their patients timely notice and a referral.

Even if the legislature had accepted the governor’s amendment, the “conscience clause” would still have granted genetic counselors an unlimited license to discriminate, but that wasn’t enough for the advocates.

The American Civil Liberties Union takes religious liberty seriously and yields to no one in our advocacy for the freedom of Virginians to worship free from government mandate or sponsor ship. In Virginia alone, the ACLU has defended the right of a Jehovah’s Witness employed by the federal government to refuse to sign a loyalty oath, the right of a street preacher to spread his message on public sidewalks, the right of a minister to use a river in a public park to perform baptisms, the right of jail inmates to receive Christian literature, and the right of public school students to wear rosaries to school and post the Ten Commandments on their lockers.

At the same time, however, we are well-aware that using religion to legitimize discrimination is nothing new, and is becoming increasingly frequent. In the 1960s, we saw institutions object to laws requiring integration in restaurants be cause of some owners’ beliefs that God wanted the races to be separate. We saw religiously affiliated universities refuse to admit or choose to dismiss or discipline students who engaged in interracial dating. At one time there were Jewish exclusion laws that kept people out of hotels and other public accommodations be cause of their faith.
In short, we have been down this road, and, each time in the past, we have finally recognized that religious freedom grants us the right to hold and practice our own religious beliefs, but not the right to use our religion to discriminate against and impose those beliefs on others who do not share them. Let us hope that the lessons of our past are well-learned and that Virginia will not accept the invitation of “conscience clause” advocates to erect flimsy, false barricades to progress that ultimately will fall, as have others, to the inexorable march to justice and equality for all.