Virginia Gov. Ralph Northam is expected to sign a bill protecting gay and transgender people that many religious leaders fear will put faith-based institutions at risk of fines and lawsuits.
The legislation, which would take effect on July 1, updates the state’s Human Rights Act and Fair Housing Act to prohibit discrimination on the basis of “sexual orientation” and “gender identity” in housing and public spaces. The Virginia Senate sent Northam the legislation late on Wednesday afternoon despite resistance from some legislators and faith-based institutions. A state House version of the bill is also expected to pass the state Senate this week. Northam will likely sign it in March.
Northam indicated in January that he would sign the legislation into law.
“For how long have we been saying that we should end discrimination in the workplace, [that] we should end discrimination in housing, [that] we should end discrimination even in nursing homes?” Northam said at an event hosted by the activist group Equality Virginia. “How many years have we been talking about it? Well, now we can take action this year.”
Gay and transgender activist groups celebrated the victory, which became possible when, in the 2019 state elections, Democrats regained control of both chambers of the Virginia legislature.
“No one should be discriminated against simply because of who they are or whom they love,” Human Rights Campaign President Alphonso David told the Washington Examiner in a statement. “This day would not have been possible without the years and years of tireless work from advocates across the commonwealth or the voters in Virginia that filled the halls of the General Assembly with pro-equality champions who fulfilled their promises.”
Religious liberty advocates opposed the bill as it moved through the House of Delegates and the state Senate. Victoria Cobb, president of the Family Foundation, warned that, without amendments, the bill would punish faith-based institutions by forcing them to diverge from their “deeply held beliefs.” Cobb told supporters after a Feb. 18 press conference that Christian colleges, such as Liberty University, Christendom College, and Regent University would be forced to house gay or transgender couples or face the consequences.
A spokesman from the Christian group Alliance Defending Freedom told the Washington Examiner that the legislation would have a “comprehensive impact on the life of religious organizations” because it covers both employment and places of public accommodation. In addition to housing gay couples, churches and faith-based schools could face the prospect of requirements forcing them to install gender-neutral bathrooms and allowing children to identify by the gender of their choice.
The bill includes a provision for religious institutions to hire people within their own faith exclusively. That provision, however, is not enough to protect institutions that require that employees not only belong to the same faith, but also hold to the same basic tenets of that faith, said Jim Davids, a legal professor at Regent University and critic of the Virginia Values Act.
Davids compared the vagueness of protections for religious institutions to the 1986 case Maguire v. Marquette University. In that case, a female professor applying for a theology position at the Jesuit college Marquette University sued when the school did not hire her because she held pro-choice views. A Wisconsin judge ruled against the woman because he did not wish to violate the First Amendment by imposing “a governmental imprimatur of approval on a particular set of beliefs” on how Marquette decided to enforce the tenets of Catholicism.
Davids told the Washington Examiner that similar cases in Virginia that will arise if religious institutions refuse to hire or house gay couples on religious grounds could be disastrous with the passage of the bill.
“Under those circumstances, it should be the employer, not the government, calling the shots,” Davids said.
Days before the bill passed the state Senate, Del. Dave LaRock offered an amendment in the state House that would allow religious organizations to require that, for the purpose of employment, “all employees or applicants for employment conform to the religious tenets of such organization.” The House voted not to consider it, and the Senate passed the bill without amendments.
Del. Marcus Simon castigated LaRock’s amendment in floor remarks, arguing that the bill already had religious exemptions for people and that the amendment was intended to hurt gay and transgender people seeking employment at religious organizations.
“It goes to who you are in your private life, and it’s really intended to gut the bill,” Simon said.
Simon could not be reached for comment.
LaRock told the Washington Examiner that he offered his amendment to protect religious organizations from the “hefty fees” that they might face, either through fines or legal action in the case of a discrimination complaint. According to the bill, first-time offenders face a $50,000 fine. The fines go up to $100,000 for subsequent offenses. In some cases, the attorney general is allowed to intervene on behalf of the plaintiff. Organizations can choose to appeal discrimination charges but will likely face significant legal fees in the process.
“A good law does not put someone in that position. It is clear,” LaRock said.
Many states, including Connecticut and Delaware, plus the District of Columbia, have provisions protecting religious institutions similar to the one LaRock proposed, according to the Alliance Defending Freedom.
Cobb previously warned supporters at a press conference in Richmond held with state religious leaders that the bill’s language could be interpreted to threaten religious freedom in a variety of ways.
“We need clarity in this bill,” she said. “We need clarity as to who they’re trying to specifically target. Is it businesses? Is it churches? Is it private schools? Because, right now, they are all swept into this bill.”