In defending House Bill 2, N.C. Gov. Pat McCrory has said the controversial legislation has been unfairly compared with “religious freedom” legislation that is now law in Mississippi, and nearly passed in Georgia and Arizona.
McCrory has said HB2 isn’t perfect, but he has cast it as more benign than the religious freedom legislation introduced in other states.
“This was not a religious freedom bill,” McCrory said on “Meet the Press” Sunday. “We have not had any religious freedom bill introduced in the state of North Carolina. One reason is because I’m governor.”
But some say HB2 does more to limit the rights of LGBT people.
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In interpreting religious freedom legislation, courts have said people must show they hold a “sincerely held religious belief” that prohibits them from participating in a certain act, such providing birth control or marrying a gay couple. Some might have to argue their case before a judge, who could question how long someone has held that belief.
Setting aside criticism over HB2’s bathroom requirements, critics said HB2 dispenses with the “sincerely held religious belief” test.
In North Carolina today under HB2, a business owner doesn’t need to argue that his religious belief prohibits him from serving a gay event. With no LGBT protections, a business can refuse to serve gay and lesbians with no explanation.
Katie Eyer, an associate law professor at Rutgers University, said HB2 is “categorically more broad in its scope” than religious freedom legislation.
But she said religious freedom legislation has become synonymous with controversy, and that the relatively “dry” wording of HB2 could make it appear more benign.
“Sometimes it’s easy to hide behind the cover of something that sounds dry and boring like ‘preemption,’” Eyer said. “The reality is that HB2 is far from not being controversial.”
State Sen. Jeff Jackson, a Charlotte Democrat, said HB2 is more punitive toward gays and lesbians than a religious freedom bill.
“(Gov. McCrory’s) claim makes no sense at all,” Jackson said. “Under HB2, you don’t even have the burden of asserting a religious belief. That’s why this is called the most sweeping anti-legislation in the nation.”
In North Carolina before HB2, there were no statewide protections for the LGBT community in places of public accommodation, such as hotels, restaurants and stores. While a business could not refuse to serve someone based on his race, state law didn’t provide similar legal protections for gays, lesbians or transgenders.
Cities and towns hadn’t offered LGBT protections either.
But that was changing.
In February, the Charlotte City Council approved an expanded nondiscrimination ordinance. It would have meant that LGBT individuals couldn’t be denied service because they are gay or lesbian or transgender.
The Asheville City Council was debating a similar ordinance. Jackson believes other predominately Democratic North Carolina cities such as Chapel Hill, Greensboro, Durham and Wilmington would have followed Charlotte’s lead.
“Part of the reason Charlotte adopted the ordinance is that virtually every city (nationwide) larger than Charlotte had it,” he said.
If the Charlotte ordinance would have taken effect April 1, private businesses would have had to serve gay weddings or LGBT events, for example.
But HB2 nullified the Charlotte ordinance in favor of new statewide protections.
The state recognizes these protected groups – race, religion, color, national origin, age, handicap or biological sex as designated on a person’s birth certificate. It doesn’t include sexual orientation or gender identity.
The General Assembly could add those protections, though legislators have shown no inclination to do so.
Cities and towns aren’t allowed to add them, because their nondiscrimination ordinances were nullified by HB2.
Long history of such bills
The concept of “religious freedom” legislation is rooted in a bipartisan congressional bill from 1993.
The Religious Freedom Restoration Act was designed to protect Native American religions, most notably giving them access to land for religious ceremonies, and allowing them to use items banned by federal law, such as peyote.
The intent of religious freedom legislation has evolved since then. The goal more recently has been to protect Christian businesses from being required to do something that conflicts with their owners’ religious beliefs, such as providing birth control or serving a gay wedding.
Supporters of newer religious freedom bills, such as one in Indiana, said their laws are mirroring the original 1993 legislation, which was sponsored by Democrats.
In North Carolina, McCrory last year vetoed legislation that would have allowed some court officials to refuse gay marriage responsibilities because of their religious beliefs.
The General Assembly overruled his veto, making it law.
Days after McCrory signed HB2 in March, Georgia Gov. Nathan Deal vetoed House Bill 757, which would have given protections to faith-based groups if they declined to provide “social, educational or charitable services that violate” their religious beliefs.
It also would have required the government to show a “compelling interest” before it interfered with how someone practices their religion.
In Georgia, like North Carolina, there are few protections for the lesbian, gay, bisexual and transgender
community. While most of Georgia doesn’t have written LGBT protections, the state’s largest city – Atlanta – has a nondiscrimination ordinance that covers LGBT individuals.
In most Georgia cities and towns, a private business can still refuse to serve someone who is gay, despite Deal’s veto.
“That is the current law,” said Jane Robbins of American Principles Project.
But she said the religious freedom bill was a preventive measure. She believed other cities and towns in Georgia will follow Atlanta’s lead.
“People can see the handwriting on the wall,” she said.
In Charlotte, council member Ed Driggs voted against the proposed nondiscrimination ordinance twice, in 2015 and again in 2016 when it passed.
At the time, he said he had concerns about protecting people’s deeply held religious beliefs, among other concerns.
On Wednesday Driggs said the state might want to have a conversation about religious freedom, but he said he didn’t think it needs to be a priority. HB2’s prohibition on local governments from establishing their own nondiscrimination policies has probably made it unnecessary, he said.