Nearly two months after Republicans at the Capitol voted to defund the Colorado Civil Rights Division and its commission, legislators are considering a sweeping bill that would allow religious institutions, businesses, individuals and public employees to deny services to LGBTQ+ Coloradans on the basis of "moral convictions" or "sincerely held religious beliefs."
"Live and Let Live," or HB 1206, will be heard today, March 27, at 1:30 p.m. in the House Judiciary Committee and is expected to draw crowds of activists on both sides of the issue. Proponents say the bill would codify the "freedom of conscience" so Coloradans can live their faith, but those in the LGBTQ communities and their allies have called 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 at the LGBTQ advocacy nonprofit One Colorado, who will be testifying against the bill.
It's no coincidence that the bill was introduced while the Masterpiece Cakeshop case, in which a same-sex couple is accusing a Lakewood baker of discrimination after he refused to make their wedding cake in 2012, is currently pending in the U.S. Supreme Court. The Colorado Civil Rights Commission, which took up the initial anti-discrimination complaint in 2012 and sided with the same-sex couple, is party to the case. (The Masterpiece Cakeshop case was mentioned in the legislative declaration of HB 1206 as the basis for the bill, even including a quote from Justice Anthony Kennedy in the U.S. Supreme Court case that "it seems to me the state has been neither tolerant nor respectful of Mr. Phillips' [the baker's] religious beliefs,” and adding that tolerance is a two-way street.)
The proposed bill defines "moral conviction" in two ways: The belief that marriage is between a man and a woman, and that a person's sex is an "immutable biological" binary "objectively determined" by anatomy and genetics at birth.
But the bill is chock-full of religious exemptions that would impact nearly every facet of life for LGBTQ Coloradans.
Religious institutions would have the ability to decline all services, accommodations, goods, housing and employment for queer people. It would prevent the state from acting against religious institutions that advertise and facilitate adoption and foster-care services for heterosexual couples only.
Transgender people could legally be 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 be denied to same-sex couples. Businesses could deny a slew of "marriage-related services," including dressmaking, floral arrangements, limousine services, photography and videography, printing, wedding planning and, of course, cake making.
Employers and universities could draw up sex-specific dress codes and even prohibit transgender people from using the restroom, dressing room, locker room or shower that corresponds with their gender identity. State employees could "engage in expressive conduct" at work and in their personal lives without fear of being subject to a discrimination lawsuit. County clerks and their deputies could decline to authorize marriage licenses under a religious-exemption claim.
"This bill is one of the most broad religious exemption bills in the country," Ramos says, adding that while First Amendment freedom of religion is important, "no one should be able to use their religion to ignore the law or harm others."
Only four Republicans sit on the eleven-member House Judiciary Committee, and Democrats outnumber Republicans in the lower chamber, so it's unlikely a bill like this will get very far in the legislative process.
Members of the LGBTQ community fear that HB 1206 would turn back the clock on queer rights and would, again, put Colorado on the map as the "Hate State," harking back to 1992, when voters approved Amendment 2, which banned state and local governments from implementing laws prohibiting discrimination on the basis of sexual orientation. The law was struck down by the U.S. Supreme Court four years later in Romer v. Evans.
Proponents of the "Live and Let Live" bill say that it is meant to strengthen freedom of religion for Coloradans by ensuring that the state can't force people to act against their moral convictions.
"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 particularly set of values rather than recognizing that in a pluralistic society, there's a wide range of religious beliefs and values," says Senator Kevin Lundberg, a Larimer County Republican and prime sponsor of the bill. "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."
Lundberg compares the "freedom of conscience" argument to that of a health-care provider denying abortion services on the grounds of religious objections or a conscientious objector declining to participate in a draft.
"I'm saying that the individual today shouldn't be asked to violate their moral conscience," Lundberg says.
As for county clerks, who are state employees required to authorize legal documents like marriage certificates, Lundberg says that if a minister can deny officiating a same-sex marriage, then a clerk should be able to deny issuing those licenses.
"Is it wrong for the state to say, 'We will not force our employees to do something that they consider to be morally wrong?'" Lundberg says, adding that the affected same-sex couple could "go to the county next door."
The notion of "freedom of conscience" dates back to the father of the Protestant Reformation. Martin Luther believed that every person had the right to their spiritual beliefs free from coercion and threats of violence by the state or church. (At the time, dissidents were burned at the stake for heresy.) Freedom of conscience has been the foundation of modern-day pluralistic societies, was enshrined in the Constitution, 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 Martin Luther's cries for an open society free from death threats (and actual death) for religious dissent and the world we live in today, at least in the U.S.
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"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 at the American Civil Liberties Union of Colorado, who will be testifying in opposition to 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 that 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."
Update: The died in the House Judiciary Committee late Tuesday, March 27.
“I applaud the members of the House Judiciary Committee who voted ‘No’ on House Bill 1206 today. I believe that with today’s vote, and after hearing from legal experts, faith leaders, and members of the LGBTQ community, Colorado has sent a strong, clear message that these license to discriminate bills have no place in our state," said Daniel Ramos, executive director of One Colorado, a queer advocacy nonprofit, in a statement.
The bill failed 7-4, with the four Republicans in the committee voting for the bill.