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Ky. bill aimed at expanding religious freedom criticized by LGBTQ+ advocates

Democratic Gov. Andy Beshear shakes hands with LGBTQ+ youth at a the annual statewide Fairness Rally in the state Capitol, just hours after legislators heard a bill that some say could encourage a torrent of lawsuits against local anti-discrimination fairness ordinances.
Sylvia Goodman
Democratic Gov. Andy Beshear shakes hands with LGBTQ+ youth at a the annual statewide Fairness Rally in the state Capitol on Wednesday, Feb. 21, 2024. The rally came hours after legislators heard a bill that some say could encourage a torrent of lawsuits against local anti-discrimination fairness ordinances.

Proposed legislation seeking to strengthen Kentucky’s religious freedom laws has raised concerns from LGBTQ+ advocates who say it could hurt anti-discrimination ordinances across the state.

LGBTQ+ advocates are worried that a bill advancing in the state House could result in a torrent of lawsuits that erode protections for marginalized people.

The bill from Republican Rep. Steve Rawlings of Burlington would allow anyone who believes their religious freedoms have been “substantially burdened” to sue people attempting to enforce a state or city policy. Under the provision, the local or state government wouldn’t have to be named in the lawsuit at all.

Rawlings said the intention of the legislation is to clarify and strengthen the state’s existing religious freedoms laws.

“Some courts interpret their state's religious freedom language so narrowly that they refuse to hear certain religious claims,” Rawlings said. “Other courts have taken more expansive approaches to these laws. HB 47 codifies definitions that are most protective of religious freedom.”

House Bill 47 passed the House Judiciary committee Wednesday on a 14-6 vote, with all but two Republicans voting for the measure and several who voted “yes” expressing reservations. Rawlings introduced a nearly identical version of the bill last year. That measure also passed the House Judiciary committee but never made it to a floor vote.

Hours after the bill passed, scores of Kentuckians gathered in the state Capitol for the annual statewide Fairness Rally. Participants chanted “What do we want? Fairness! When do we want it? Now!” before lawmakers including Democratic Gov. Andy Beshear took the stage to speak in support of LGBTQ+ rights in the state.

“I’ll get the veto pen ready again this year,” Beshear said.

Rev. Donzella Lee with the Fairness Campaign specifically called out House Bill 47, saying it would endanger LGBTQ+ protections across the state. She called on lawmakers wavering on the bill to vote against it.

“We’re going to pray that that ‘yes’ becomes a ‘no,’” Lee said. “It’s nothing but an attack on the fairness ordinance and civil rights.”

Several interest groups, including religious leaders, spoke out against the legislation in committee, saying they felt existing laws are more than enough to defend their interests in court.

“We care a great deal about religious freedom, a great deal. However, this bill is not helpful. We feel that it confuses, that it broadens definitions,” said Rev. Kent Gilbert, the chair of the Justice and Advocacy Commission of the Kentucky Council of Churches. “It also makes possible the kind of discrimination that persons of integrity of every faith tradition abhor.”

But Rep. Jason Nemes of Middletown disagreed with the reverend, saying he felt the state’s laws weren’t enough to properly protect religious freedoms. Nemes pointed to a Kentucky Supreme Court case that found the state’s existing religious freedom statute does not appropriately allow people the right to sue their government when they feel their freedoms have been violated.

That case is about a Muslim woman who says police forced her to remove her hijab for a booking photo that was publicly released.

“That Muslim woman should have been able to recover [damages],” Nemes said. “We have a lot of people who are worried that [this bill] is going to go too far and infringe on their rights. So I don't know where the right equilibrium is, where we can satisfy both interests.”

Nemes voted to pass the bill through a committee hearing, but said he doesn’t want to “obliterate” the 24 fairness ordinances across the state that protect LGBTQ+ residents.
The first fairness ordinance in Kentucky passed in Louisville and Lexington in 1999. The ordinances ban discrimination on the basis of sexual or gender identity in employment, housing and public accommodations.

The ordinances have also been the target of attacks across the country from groups that say they violate religious freedoms, especially when it comes to same-sex weddings.

Louisville Democratic Rep. Nima Kulkarni said the bill allows lawsuits against individuals who simply attempt to implement the ordinance rather than governments. She said that goes too far.

“We live in a society where discrimination exists, and the legislation that we're voting on in committee today is overbroad, it's unnecessary … and would open the gates to bad actors, discriminatory actors,” Kulkarni said. “The freedom to exercise religion does not mean the freedom to discriminate.”

Testifying alongside Rawlings in favor of the bill was Greg Chafuen, a lawyer with the far-right group Alliance Defending Freedom. The national group is involved in a number of lawsuits across the country.

One of those is on behalf of Chelsey Nelson, a photographer arguing that Louisville’s Fairness Ordinance infringes on her religious beliefs, which she says would preclude her from photographing a same-sex wedding. Chafuen said he doesn’t believe the bill would “pick winners and losers” in court cases against fairness ordinances.

“HB 47 ensures that Kentucky courts will use the most accommodating language to ensure that religious Kentuckians have a fair day in court,” Chafuen said. “Codifying these definitions will ensure that Kentuckians can be heard if any part of the government burdens their religious practices.”

Chafuen also suggested the bill would allow Jewish people to defend the “typical Jewish tradition” of sacrificing chickens. No “typical” modern Jewish ritual involves animal sacrifice.

Meanwhile, several LGBTQ+ advocates spoke on the potential dangers of the bill. Erica Fields with CIVITAS Regional LGBT Chamber of Commerce said bills that even appear to encourage discrimination against LGBTQ+ people would hurt businesses.

“The concern that I hear from these companies about a bill like this … is not so much the actual details of the bill, but the fear and the perception of what it will cause when they have to go out and try and draw employees into the state,” Fields said.

Fields said she was worried when she first decided to move to Kentucky, but was reassured the state’s fairness ordinance. Rawling’s bill and others like it would have given her pause, she said.

The bill now moves to the House floor as it awaits a vote.

State government and politics reporting is supported in part by the Corporation for Public Broadcasting.

Sylvia is the Capitol reporter for Kentucky Public Radio, a collaboration including Louisville Public Media, WEKU-Lexington, WKU Public Radio and WKMS-Murray. Email her at sgoodman@lpm.org.
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