Council committee removes religious-freedom and free-speech exceptions from anti-discrimination ordinance

A city council committee decided Tuesday not to include in Midway's proposed "fairness ordinance" language similar to that of Indiana's "restoration of religious freedom" law and a provision that attempted to draw a line between freedom of expression and discrimination on the basis of sexual orientation and gender identity.

The Finance, Ordinance and Policy Committee rejected language offered by city attorney Phil Moloney that said "No action taken under or required by this ordinance shall burden a person's freedom of religion" and "The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be burdened unless it is proven by clear and convincing evidence that the government has a compelling interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest."

Moloney said the language, which means that the government can only intervene in disputes involving religious beliefs if it can prove it has a good reason and if it interferes as little as possible, was taken from a Kentucky law and a federal law.

Council Member Dan Roller, the committee chair, said he saw no need to include it. "The way it's written here allows you to discriminate," he said.

Mayor Grayson Vandegrift, who proposed the ordinance and sat in on the meeting, agreed. "You could never determine what a sincerely held religious belief is," he said. Vandegrift said some people believe that homosexuality is a sin, but "If you do, divorce is also a sin. Living together before you're married is a sin," and both those classes of people would be protected by the ordinance's ban on "familial status" discrimination. "I feel like this sin is being singled out. . . . It's the crux of the issue, to me."

Committee and Council Member Sara Hicks generally agreed, saying that protection of religious beliefs could go too far: "Some religious think you should stone a woman if someone rapes her."

Moloney said Danville's fairness ordinance, one of those from which the committee told him to draw, includes similar language. "This is your-all's decision," he said. "There's a delicate balancing act." He said issues with such ordinances "seem to come up in the service areas, when people are being asked to participate in activities or events or to disseminate a message that they disagree with because of religious beliefs," such as photography, cakes and floral arrangements for weddings.

Roller said, "I don't remember cakes or photography being discussed in the Bible, and I don't see how they're religious issues here, and I don't think we're writing a law to address religious issues. We're dealing with discrimination, is what we're dealing with here. And if there's a state law that is already a protection of religion, then that's a state law and they can go to the state for that. . . . It's the state's burden, not our burden."

Committee and Council Member Bruce Southworth replied, "Well, it would become our burden. If something was filed, the state law would have to come up. I'm just saying if there is a case, this is going to supersede it anyway. . . . It doesn't matter to me."

Roller asked if there has been any court cases involving the state law, and Moloney said he knew of none.

"Put it in or take it out; it doesn't matter," Southworth said. "To me, it's more of a moral issue than it is discrimination or anything else. . . . Everybody ought to be nice to everybody."

The rejected language is similar to part of the original version of Indiana's Religious Freedom Restoration Act, which the state's legislature dropped after some state and national business leaders said it would allow businesses to discriminate. The final version of the Indiana law says it does not authorize anyone to refuse to provide services, public accommodations, housing, facilities, goods or employment on the basis of race, color, religion, ancestry, age, national origin, disability, U.S. military service, sex, sexual orientation or gender identity.

After the committee dealt with relatively minor corrections and future plans, and moved to adjourn, the Midway Messenger asked Moloney about the grammar and purpose of a section saying the ordinance would not apply "with regards to sex, sexual orientation, and gender identity" to "Infringing upon the right of free speech- expression of a provider of goods or services not to be compelled to express a message with which they disagree."

Moloney said of the latter section, "I need to clean that up."

Vandegrift said he read the ungrammatical language to mean that "You don't have to provide services if you disagree with the message." He said it could apply to Ku Klux Klan T-shirts advocating "white power." In 2012, the Lexington-Fayette Urban County Human Rights Commission determined that a screen-printing firm had violated the city's fairness ordinance by refusing to print T-shirts for a gay pride event.

Moloney said that without such an exception, "basically you're compelling a person to participate in an event and to at least give the impression that they're promoting or advocating an activity that they may disagree with because of their religious beliefs." But he said such people could rely on the state law.

The committee agreed to remove the language.

Moloney said he might be able to complete the redrafting by Friday, in time to include it in the packet of materials for Monday night's council meeting. The committee agreed that action should be delayed until the local Human Rights Commission, which requested the ordinance, could review it, and until Vandegrift's promised public forum on the ordinance can be held.

"It's important that we really know what our Midway residents have to say about it," Hicks said.

If the council passes the ordinance, Midway would be the eighth Kentucky city with such a law, and the first to enact one since controversy about the law in Indiana and a similar one in Arkansas.