While civil-rights groups cheered the victory, the vote itself signaled that some Republicans are still keen to turn back the clock on LGBTQ protections in this state — or at least prove to their constituents that they’re trying.
The sixteen-page bill packed as many religious exemptions into one neat package to codify what proponents called “freedom of conscience,” but those in the LGBTQ communities and their allies deemed it a blatant and horrific attack on anti-discrimination laws.
“This is one of the most mean-spirited and one of the most outright discriminatory bills not just in Colorado, but in the country,” says Daniel Ramos, executive director of the LGBTQ advocacy nonprofit One Colorado. The no vote, he adds, “sent a strong, clear message that these license-to-discriminate bills have no place in our state.”
Conservatives are still fuming over the Masterpiece Cakeshop case, which stemmed from Lakewood baker Jack Phillips’s refusal in 2012 to create a custom wedding cake for a same-sex couple. That case is still pending in the U.S. Supreme Court after the Colorado Court of Appeals sided with the gay couple. The authors of HB 1206 even cited Masterpiece as the inspiration for their bill, quoting Supreme Court Justice Anthony Kennedy’s comment that “it seems to me the state has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs” and his statement that tolerance is a two-way street.
The language of HB 1206 would have allowed people of “moral conviction” or those with “sincerely held religious beliefs” to deny a slew of services and accommodations to queer Coloradans. Among those beliefs: Marriage is between a man and a woman, and a person’s sex is an “immutable biological” binary “objectively determined” by anatomy and genetics at birth. Under the now-dead bill, religious institutions would have been able to decline all services, accommodations, goods, housing and employment for queer people. Transgender people could have been legally denied treatment, counseling and surgeries for sex reassignment or hormone replacement therapy during gender-identity transitions by a medical professional. Counseling and fertility services could have been denied to same-sex couples. And businesses could have refused to provide a laundry list of “marriage-related services,” including dressmaking, floral arrangements, limousine services, photography and videography, printing, wedding planning and, of course, cake making, to same-sex couples.
It didn’t end there. County clerks and their deputies could have declined to authorize marriage licenses under a religious-exemption claim. The state would not have been able to take action against religious institutions that advertise and facilitate adoption and foster-care services for heterosexual couples only. Employers and universities could have drawn up sex-specific dress codes and prohibited transgender people from using the restroom, dressing room, locker room or shower that corresponds with their gender identity. State employees would have been allowed to “engage in expressive conduct” at work and in their personal lives without fear of being subject to a discrimination lawsuit.
“It would roll back the clock on critical protections for LGBTQ Coloradans. It would really upend our laws against discrimination."
“It would roll back the clock on critical protections for LGBTQ Coloradans. It would really upend our laws against discrimination,” says Denise Maes, public policy director for the American Civil Liberties Union of Colorado, who testified against the bill. “I think the beliefs of those who don’t appreciate or care for or like same-sex marriage, I think their beliefs are well protected. They can continue to believe that gay marriage is wrong or sinful or harmful. ... What we are telling them is if you open your business to the public, then you have to follow Colorado law. You can’t deny service on the basis of those beliefs.”
Colorado is one of only fourteen states in the country that has earned top marks for LGBT equality, according to the Transgender Law Center, based on its robust non-discrimination laws and lack of religious exemptions.
That’s a far cry from where it was 26 years ago, when it gained national notoriety as the “Hate State” after voters passed Amendment 2 in 1992. The language of that amendment banned state and local governments from implementing laws prohibiting discrimination on the basis of sexual orientation; its proponents argued that homosexuals were not entitled to “special rights.” Although Amendment 2 was struck down by the U.S. Supreme Court in 1996, it took years for the state to trade its “Hate State” reputation for one as a leader in civil-rights protections.
The “Live and Let Live Act” wasn’t the first thinly veiled attempt to create a legal discrimination loophole for religious conservatives. Last year, Republican Senator Kevin Lundberg pushed a bill through committee that would have created a “distinction” between discrimination and the “right to disagree,” and allowed business owners to decline services for events they don’t want to associate with, such as a same-sex wedding. That bill died on the Senate floor after a second reading.
Lundberg was also the Senate sponsor for the “Live and Let Live Act.” “The right to exercise your freedom of conscience is necessary for a free society to operate, because the opposite of that is the state dictates the values for everyone, and everyone marches by a particular set of values rather than recognizing that in a pluralistic society, there’s a wide range of religious beliefs and values,” he said before the March 27 committee vote. “This isn’t aimed at diminishing the rights of anyone, but it is aimed at maximizing the rights of everyone, because freedom of conscience is the foundation of anything you do.”
The notion of “freedom of conscience” dates back to Martin Luther, the father of the Protestant Reformation. He believed that every person had the right to their spiritual beliefs, free from coercion and threats of violence by the state or church. Freedom of conscience was enshrined in the U.S. Constitution, has served as the foundation for modern-day pluralistic societies, and even inspired the United Nations’ Universal Declaration of Human Rights, which states that “everyone has the right to freedom of thought, conscience, and religion.” But there’s a world of difference between Luther’s cries for an open society free from death threats (and actual death) for religious dissent and life in the U.S. today.
Even before HB 1206 was introduced, Republicans took aim at the Colorado Civil Rights Division, which had taken up the initial complaint against Masterpiece and is now party to the U.S. Supreme Court case. Republicans on the Joint Budget Committee held the Civil Rights Division hostage when it voted on a 3-3 party-line vote to withhold funding from the agency for the upcoming fiscal year. Now the division is moving through a sunset review, when the Senate will determine whether to reauthorize it after the Democrat-controlled House approved the measure; its first stop will be the Senate Judiciary Committee.
“I think everybody is very concerned about it, and certainly there’s been a couple of protests already at the Capitol asking to preserve the Colorado Civil Rights Division,” says Rex Fuller, vice president of communications and corporate giving at the GLBT Community Center of Colorado. “It has come up for review in the past, but we haven’t seen a challenge like this year.”
Only a fraction of the agency’s cases are related to LGBTQ discrimination claims: 71 of the 1,138 total complaints filed. Retaliation, disability, sex and race — in that order — are by far the agency’s greatest concerns, each accounting for hundreds of complaints. “Certainly, with the advent of the Masterpiece Cakeshop case, it has given a high profile to the LGBT part of the Civil Rights Division,” Fuller adds, “but it’s important to protect the rights of African-Americans, Latinos and all groups that experience discrimination.”