Does PA Already Have a ‘Gay Jim Crow’ Law?

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Randy LoBasso reminds to redirect some of our furor over Arizona’s ‘Gay Jim Crow’ law back to Pennsylvania, which has a similar bill allowing business owners to refuse service to gay people and others if their bigotry is “sincerely held”:

As it happens, Pennsylvania is in a similar—though not as developed—situation.

In January, we told you about Gordon Denlinger (R-Lancaster), who had introduced a similar bill with similar rationale. He called it the “Freedom of Conscience Amendment,” and based it on the idea that if your personal discriminatory practices are “sincerely held,” you have the right to deny your business to someone

Calling it the “Freedom of Conscience Amendment,” Denlinger’s idea is based on the theory that discrimination isn’t so bad, as long as such discriminatory practices are “sincerely held.” And even then, if you deny your business to someone, the invisible hand of the free market will show you what’s right.

So Jim Crow, basically.

But here’s the thing – Tim Stuhldreher points out that PA may already have a Gay Jim Crow law. It passed in 2002 and is called the Religious Freedom Protection Act:

But the bottom line is, the legal potential for “gay Jim Crow” already exists in Arizona. In Pennsylvania, too! The commonwealth passed its Religious Freedom Protection Act in 2002. Here’s a bit of it:

Section 4. Free exercise of religion protected.

(a) General rule.–Except as provided in subsection (b), an  agency shall not substantially burden a person’s free exercise of religion, including any burden which results from a rule of general applicability.

(b) Exceptions.–An agency may substantially burden a person’s free exercise of religion if the agency proves, by a preponderance of the evidence, that the burden is all of the following:

(1) In furtherance of a compelling interest of the agency.

(2) The least restrictive means of furthering the compelling interest.

 Section 5. Actions.

(a) Claim or defense.–A person whose free exercise of  religion has been burdened or likely will be burdened in violation of section 4 may assert that violation against an  agency as a claim or defense in any judicial or administrative proceeding.

Subsection (b) would appear to give the state a lot of wiggle room to argue a “compelling interest” in enforcing anti-discrimination law. On the other hand, the law quoted above refers the definition of “free exercise” to Article 1, Section 3 of the state constitution, which states in part that “no human authority can, in any case whatever, control or interfere with the rights of conscience.” To me, “in any case whatever” sounds like it beats “in furtherance of a compelling interest.”

I have no idea what case law there is on this, and a layman’s judgement is about the worst tool you can use for evaluating how laws are applied. Still, on the face of it, it looks as though you could argue that Rep. Gordon Denlinger’s proposed bill would be superfluous.

I’m also not a lawyer so I won’t opine further, but it’d be good to hear from any lawyers about how this has been applied.

This entry was posted in Miscellany.

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