Fairness ordinance draft has religious exceptions like Indiana law, and provision saying no message shall be compelled; mayor says they would defeat the purpose

By Anthony Pendleton
University of Kentucky School of Journalism and Telecommunications

City attorney Phil Moloney’s draft of an ordinance to prohibit discrimination based on sexual orientation and gender identity includes language similar to that of Indiana's "restoration of religious freedom" law, which caused a national controversy.

Other language in the ordinance, which advocates call a "fairness ordinance," attempts to draw a line between freedom of expression and discrimination.

Grayson Vandegrift

The Midway Messenger requested a copy of the draft from Mayor Grayson Vandegrift, who proposed the ordinance but expressed strong reservations about the language that reflected the Indiana legislation.

Under Section Five of the draft, it would be illegal to deny "goods, services, facilities, privileges, advantages, and accommodations "on the basis of "race, color, religion, national origin, sex, disability, gender identity, or sexual orientation."

However, Section Five says it does not apply "with regards to sex, sexual orientation, and gender identity" to such things as restrooms, dormitories and other facilities segregated by sex, and Section Five-E applies that exception 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." For a PDF of the draft, click here.

This exception means that a person or a business would not have to sell or make something if they disagree with the product's message. For example, Lexington T-shirt company Hands On Originals refused to print shirts for the annual Lexington Pride Festival in 2012. Later that year, the Lexington-Fayette Urban County Human Rights Commission determined that the company had violated the city's fairness ordinance by discriminating based on sexual orientation. Under Section Five of Midway's ordinance, that would not be a violation.

Phil Moloney (2011 photo)

Section Eight of the draft ordinance says, "No action taken under or required by this ordinance shall burden a person's freedom of religion." It goes on to say that "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." This 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.

The language in Section Eight is similar to part of the original version of Indiana's Religious Freedom Restoration Act, which the Indiana legislature dropped after some business interests said it would allow businesses to discriminate against people in the LGBT community. Angie's List, which is based in Indianapolis, put off plans to expand its headquarters. Apple CEO Tim Cook, who is openly gay, criticized the bill in a Washington Post piece, saying "This isn’t a political issue. It isn’t a religious issue. This is about how we treat each other as human beings."

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.

The draft of the Midway ordinance does not include the original Section 9 of RFRA, which stated that "A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding." This would have allowed a person to use religious freedom as a defense in court.

Asked about the source of the language, Moloney said, "It's either language that I composed or it may have come from some other ordinances we had taken a look at."

Asked if any city council members had anything to do with the language, Moloney said, "I've had a committee member express some reservations."

The ordinance is being considered by the council’s Finance, Ordinance and Policy Committee, chaired by Council Member Dan Roller. Council Members Sara Hicks and Bruce Southworth are also on the committee.

Vandegrift emphasized that the ordinance is still in the draft phase, saying "I suspect the committee is gonna probably pull some things and probably add some things."

Vandegrift said he doesn't agree with all of the language in the two sections. "I don't want to speak for the committee, but in my opinion, [Section Five-E] and the passage in Section Eight kinda defeat the whole purpose of the ordinance."

The committee will meet Tuesday at 2 p.m. at City Hall to discuss the draft.