Joseph Gerth

Opinion Columnist | Louisville Courier Journal

The Kentucky Senate passed a sweeping bill on Tuesday that opponents say would allow certain businesses to discriminate against gays and lesbians based on religious beliefs.

The bill goes beyond legislation passed three years ago that gave some of those same protections to business owners to head off lawsuits like those seen in other states challenging the rights of bakeries, florists and photographers to not take part in gay marriages.

Senate Bill 180 advanced on a vote of 22-16 and now goes to the House, where Speaker Greg Stumbo may not allow a vote on it because he believes it is unconstitutional. All the Senate’s Democrats opposed the measure, and five Republicans bolted their party’s leadership to vote against it.

Chris Hartman, director of the Fairness Campaign in Louisville, called the legislation "extremely dangerous" because he said it allows people to attack gay rights ordinances in the city and elsewhere.

"This is as broad as it can be," said Hartman, who said the point of the legislation is to make it easier and even encourage people to discriminate against gays and lesbians.

"If anything, this encourages people to discriminate," said Hartman, who expressed the House would kill the measure.

Martin Cothran, a spokesman for the Family Foundation, didn't immediately return a call to his cell phone.

It's still uncertain exactly what the bill does and how far it allows people to go in discriminating against people with whom they don't agree because of religion or conscience.

But Sen. Morgan McGarvey, D-Louisville, said the bill's language makes it legal for businesses to discriminate against anyone not covered by federal civil rights laws, which protect people based on race, religion, age, disability and other things. Not included under federal law is sexual orientation or gender identity, which is included under local laws in eight Kentucky cities.

"The biggest problem with this bill is that it invites discrimination," McGarvey said.

Sen. Whitney Westerfield, the chairman of the Senate Judiciary Committee, said in an interview that the legislation is not that wide-ranging but he had trouble pointing to the portion of the bill that would limit the bill's scope.

The legislation allows businesses that deal in "customized, artistic, expressive, creative, ministerial, spiritual, or in any other way protected activities," to refuse to do business that would violate their conscience or moral or religious convictions. The bill doesn't list businesses that would fall under those classifications. When asked if a restaurant that sells an "artisan hamburger" would qualify for protections, Westerfield said, that is a "good law school question."

But Westerfield said he believes the law requires that anyone objecting to providing a good or service must do so based on that good or service and not based on the customer and their beliefs or lifestyle. For instance, he said that a gardener providing landscaping services couldn't reject a customer just because the customer is gay.

The law, however, doesn't explicitly say that, although Westerfield, after searching the legislation, said he believes that it is covered by a clause that says the government can't "compel actions, goods, services, judgments, attestations, or other commissions that conflict with protected rights."

McGarvey, however, disagrees, saying that the language Westerfield cited isn't limiting at all and that another clause that says "nothwithstanding any law to the contrary" seems to give any business owner the right to discriminate for any reason against anyone who is not protected by the federal government.

Sen. Julie Raque Adams, R-Louisville, urged the Senate to defeat the measure, saying that it would be seen as discriminatory and would hurt Louisville as the state’s largest city tries to lure business.

The Indiana General Assembly walked back similar legislation last year after numerous businesses in the state objected. Some companies based there endured boycotts of their products until the state legislature reworked the legislation.

Sen. Albert Robinson, R-London, proposed the measure in response to a legal battle in Lexington after a group of gay activists filed a complaint when a company refused to make t-shirts celebrating a gay pride event.

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The group complained to the Lexington Human Rights Commission, which found in the group's favor. Fayette Circuit Court, however, ruled that the business was within its rights to turn down the group. An appeal is now pending before the Kentucky Court of Appeals.

Sen. Wil Shroder, R-Wilder, argued that the Senate was moving too quickly and that it should wait until the case has made its way through the courts before passing legislation. The circuit court, he said, got the ruling right.

The three other Republicans who opposed the measure were Sens. Chris McDaniels, of Taylor Mill; Carroll Gibson, of Leitchfield; and Alice Forgy Kerr, of Lexington.

Sen. Joe Bowen, R-Owensboro, said he had some concerns about the bill but voted for it because "this is a live-and-let-live piece of legislation."

Robinson said the bill was needed to protect, for instance, a Jewish baker who was asked to make a cake with a Nazi swastika on it. Sen. Brandon Smith, R-Hazard, reiterated his concern about such a situation. In fact. nothing in the law would require anyone to make such a cake because political beliefs are not protected by civil rights laws, McGarvey said.

Joseph Gerth can be reached at 502-582-4702 or jgerth@courier-journal.com. Follow him on Twitter at @Joe_Gerth.