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Critical Thinking: Anti-Discrimination

Updated: Mar 6, 2020

We Believe...that all individuals are entitled to equal rights, justice, and opportunities and should assume their responsibilities as citizens in a free society.

- Virginia Republican Creed

Update, March 6, 2020

There have been so many bills this year addressing nondiscrimination protections. I want to take the time to share my thoughts on these bills and the issues.

Two bills that have received a lot of attention are HB1663 and SB868. They are the same bill from different houses. The title is: “Discrimination; prohibited in public accommodations, etc., causes of action,” nicknamed the “Virginia Values Act.”

The Virginia Values Act, as written, provides reasonable exemptions for religiously affiliated organizations and educational institutions, including fully exempting those that are not in fact open to the public. This legislation would allow religiously affiliated organizations and educational institutions to hire or prefer employees who are members of their faith. This is in line with existing exemptions under federal law, and these exemptions are designed to strike a fair balance between religious freedom and equal treatment of all people.

Passage of the Virginia Values Act will also not affect the “ministerial exception,” which will continue to apply in Virginia. This exception was created by the Supreme Court and applies to employees of religious organizations who perform job functions such as teaching scripture, leading prayers or religious songs, or otherwise sharing religious doctrine. Houses of worship and religiously affiliated organizations are permitted to make employment decisions for these positions, including whom they hire or fire, that align with their church doctrine and are not required to comply with state or federal nondiscrimination laws for those jobs.

For example, federal, state, and municipal governments cannot hold a Catholic church liable for refusing to hire female priests. However, religiously affiliated hospitals should not be able to refuse visitation to a same-sex spouse, foodbanks should not be able to turn away a pregnant unmarried woman, and a funeral parlor should not be able to refuse services to an interfaith or interracial couple who lost a child.

Freedom of religion is integral to our way of life and protected by our Constitution. Equal protection means that all of us are equal under the law and endowed with inalienable rights. These principles distinguish America, and I believe that they actually speak to the same value: nonjudgmental respect for others. These principles are supported by my faith and its teachings. They are also supported by the Republican Creed.

This is why I support nondiscrimination legislation. It is consistent with my values, and hopefully all of our values. The language of the law is layered and complicated. The law has many layers of protection for religious freedom, including those ingrained in our federal and state constitutions, such as the free exercise clause of the First Amendment. Constitutional provisions supersede our federal and state code, where we also have religious protections. Finally, there is precedent set by the courts clarifying our existing laws.

We tried several times to place religious exceptions into the language of these bills. The challenge has always been that those exceptions end up changing the language of the entire bill, which opens up the possibility for discrimination as well as religious protection. Further, because there are such strong superseding protections, the embedded language is often considered unnecessary. The problem is that any ambiguity is usually sorted out by the courts. No one wants to have to go through expensive litigation to sort out a problem.

There is other legislation moving through the legislature regarding nondiscrimination. Where we can, we have successfully made several amendments to solidify these protections, without opening the door to allow for discrimination.

HB 1049

I inserted language into the contracting sections to allow the state to make a case-by-case exception for contracts with religious organizations. This is an exception to the overriding nondiscrimination employment requirements. The amendment succeeded with bipartisan support.

HB 1429

This bill requires transition surgery to be covered by all health plans. Religious health plans may not include that benefit because it is in conflict with their religious beliefs, much like Little Sisters of the Poor had a problem with covering birth control prescriptions. This issue was litigated, and it seems clear and prudent that we account for that as we write the bill. We proposed an amendment, but it failed along party lines.

HB 1663

We were able to amend this bill on public accommodation to clearly exclude religious organizations.


Original Post, February 10, 2020

Last week on the floor of the Senate I voted in support of SB868, also known as the “Virginia Values Act.” This legislation would protect Virginians from discrimination.

This is an inherently Republican principle - everybody should have equal opportunity. Both our federal and state constitution protects self-governance and in America, we stand for the principle that others should not rule our values or choices. We should not tolerate discrimination for any reason.

Nondiscrimination laws are already on the books in 20 other states. This legislation will expand existing human rights law in Virginia. And that’s why this legislation is supported by more than 30 major Virginia employers and businesses, including Amazon, Capital One, and Dominion Energy. Anti-violence and women’s safety advocates like the Virginia Sexual & Domestic Violence Action Alliance and the Virginia Anti-Violence Project support anti-discrimination laws as well.

The First Amendment to the U.S. Constitution and the Virginia Constitution fully protect religious freedom, but our freedom of religion is protected by this legislation and imperatively so. This legislation, in fact, creates brand new protections on the basis of religion for all Virginians. The Virginia Values Act would provide reasonable exemptions for religiously affiliated organizations and educational institutions, including fully exempting those that are not in fact open to the public. It also would allow religiously affiliated organizations and educational institutions to hire only employees who are members of their faith. These are in line with existing exemptions under federal law and strike a balance between religious freedom and equal treatment of all people.

Protections in public spaces and in places of employment are needed to ensure that people are able to participate fully in their communities and, most importantly, go about their daily lives without fear of discrimination. That is why I support SB868.

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