Legal analyst Kimberly Wehle on the 14th Amendment and whether it can be used to keep Donald Trump off the ballot.
Guest Host: Indira Lakshmanan
In 1993, President Bill Clinton signed the Religious Freedom Restoration Act into law. But the Act didn’t apply to the states. So in the decades that followed, more than 20 states passed their own so-called “Religious Freedom” laws. The latest is Tennessee, where lawmakers last week approved a bill that allows therapists to refuse treatment to LGBT clients. Similar bills have passed in Kansas and Mississippi. Supporters say these laws protect first amendment rights. But opponents argue they allow businesses to discriminate against LGBT persons. Guest host Indira Lakshmanan and guests discuss debate over controversial religious freedom laws in the states.
- Josh Gerstein Senior reporter, POLITICO; focused on legal and national security issues
- Robert Destro Professor of law and director of the Interdisciplinary Program in Law & Religion, Columbus School of Law at The Catholic University of America
- Sarah Warbelow Legal director, Human Rights Campaign
- Mitchell Gold Co-founder and chairman, Mitchell Gold and Bob Williams home furnishings company. He is also an LGBT activist and author of "Crisis: 40 Stories Revealing the Personal, Social, and Religious Pain and Trauma of Growing Up Gay in America."
- David Fowler President, the Family Action Council of Tennessee; former Republican state senator.
MS. INDIRA LAKSHMANANThanks for joining us. I'm Indira Lakshmanan sitting in for Diane Rehm. Last week, Mississippi and Tennessee passed controversial religious freedom laws that allow businesses to refuse service to gays and lesbians after Georgia's governor vetoed a similar bill. In North Carolina, a new law bans people from using bathrooms that don't match their sex at birth. They're the latest in a series of state level measures promoted by faith based organizations and assailed by anti-discrimination groups.
MS. INDIRA LAKSHMANANJoining me in the studio to talk about what's in these new laws, what they mean for civil rights and the reaction from corporations doing business with those states, Sarah Warbelow of The Human Rights Campaign, the country's largest civil rights group working for equality for lesbian, gay, bisexual and transgender people, Josh Gerstein, a reporter with Politico and Robert Destro of The Catholic University School of Law.
MS. INDIRA LAKSHMANANWelcome to all of you.
MR. ROBERT DESTROThanks for having us.
MR. JOSH GERSTEINMorning.
MS. SARAH WARBELOWMorning.
LAKSHMANANAnd I'm sure that all of you, the listeners, would like to join us and share your questions and your ideas. We'll be taking your call throughout the hour. You can call us on 1-800-433-8850. You can send us an email to email@example.com or you can join us on Facebook or Twitter. All right, Josh, let me start with you. Tell us about the laws passed recently in Tennessee, Mississippi and North Carolina. What do they say and whose rights are they seeking to protect?
GERSTEINWell, in many ways, these laws, I see as sort of a reaction to the Supreme Court decision last year, legalizing gay marriage across the country. So you've seen, in a series of states, they actually began before that decision sort of in anticipation of it, enacting initially sort of a wave of laws that were modeled as religious freedom restoration act bills. That's a law that the federal government has that deals with the rights of religious people to not be affected by certain government actions.
GERSTEINThere was a effort to set those up at the state level, I think mostly, initially having to do with concerns about perhaps people that were in certain lines of business being forced to take part in gay marriages, take part in those kinds of ceremonies or to provide services to those things. People probably have heard disputes about bakers, for examples, or photographers who might have not wanted to be involved in those ceremonies and the issue of whether they were obliged to offer their services to all comers, as most businesses are that you might go into or because of the nature of those events, might the law allow them to opt out of participating.
GERSTEINSo I think that's sort of how those laws began, in part as a backlash to the Supreme Court decision, but now they've sort of progressed, going even further and this issue of bathroom has actually become a central issue, I think, first in an ordinance that was put in in Houston and then in these other state laws, especially the North Carolina one having to do with the sort of related issue, I guess, of whether transgender people should be able to opt which bathroom they want to use or whether they're mandated to use a certain bathroom.
GERSTEINAnd so these have become quite controversial in a number of states and as you eluded to, not only that issue, but also business communities getting involved and really sending a powerful message, I think, in several states that they didn't want these laws on the books.
LAKSHMANANOkay. Well, we'll get back to that. As you say, the North Carolina law is specifically about bathroom use and that you are only allowed to use the bathroom that corresponds with the gender you were born with. The Mississippi law, as you said, is much more all-encompassing. It has to do with all services, that basically any business can deny service to anyone based on their opposition to same sex marriage, extra marital sex or transgender. What about the Tennessee law, Josh?
GERSTEINMy understanding is that many of them are the same, based on trying to mandate that people be forced to provide services to all comers or to say that they can opt out on a religious basis. And I think the North Carolina law, maybe Sarah or Bob can correct me here if I'm wrong, does actually cover not simply bathrooms, but is designed to overturn a gay rights ordinance that was essentially adopted by a community in North Carolina and make it impossible for jurisdictions across that state to institute any protections for gays and lesbians that mention, say, sexual orientation as a basis for that.
GERSTEINSo I think that even thought the bathroom issue has become the most heated issue in the last few months, anyway, some of these laws have a much broader impact.
LAKSHMANANAll right. I think the Tennessee one focuses specifically on counselors, on allowing counselors and therapists to deny services to gay, lesbian or transgender people. But Sarah, a similar religious freedom law was actually vetoed recently by the governor of Georgia. Why?
WARBELOWThat's correct. You know, the governor of Georgia made a very impassioned speech in which he invoked his own religion to say that there's not need to utilize religion as a mechanism for discrimination against others. This bill was modeled on the religious freedom restoration act and, unfortunately, while many of the early law were intended to protect religious minorities, that was no longer the motivation. One of the legislators made very clear...
LAKSHMANANSo you're thinking of Bill Clinton's -- the law passed in 1993 that was actually initially meant to protect Native Americans, if I'm not wrong.
WARBELOWThat's correct. It was a Supreme Court case that penalized Native Americans for using peyote. That really was the impetus behind the federal law. And early adopters, like the state of Connecticut, again, were really bringing this forward because they wanted to protect religious minorities. But in Georgia, a state legislature proposed that the bill carve out discrimination, right, that you cannot use the bill as a means to discriminate against others. And one of the sponsors of the bill, frankly, had a meltdown and said, but that was the whole purpose of the bill is he wanted to create a mechanism by which business owners and others could discriminate against the LGBT community.
LAKSHMANANAnd yet, this was actually stopped. As you said, Governor Nathan Deal vetoed the bill, but I think part of it, also, was a number of big name companies protested this legislation, right? I mean, not only is Georgia home to Coca-Cola, which, by the way, sent a letter to North Carolina because it has a historical link to North Carolina, Coke does, and they opposed that law. But I think Disney, Apple, Time Warner, Intel, Sales Force, a whole bunch of company called on the governor to veto the bill. Was that part of the pressure he was under?
WARBELOWAbsolutely. At the end of the day, more than 500 businesses called on the governor to veto the legislation. Not only were they major household names, but mom and pop shops as well. Every segment of the business community rejected a measure that would allow for discrimination.
LAKSHMANANAnd I think the NFL, as well, warned that Atlanta's bid for the Super Bowl would be at risk and the NCAA also hinted that it could affect the state's ability to host championship games for the NCAA. So it seems like there was sports pressure as well. I wonder why that has not happened in other states that have passed these laws.
WARBELOWWell, as I said, many of -- the motivations behind the early versions of the law was very different from what the motivations are today and people weren't that concerned. We've seen a number of Supreme Court cases, including the Hobby Lobby case, which allowed for-profit businesses to discriminate against women in the provision of birth control that have changed the landscape and understanding of how these laws might be used in the future. And since that time, we've seen more and more businesses speak out against these laws.
WARBELOWBusinesses force the hand of the governor in Indiana last year to amend the law to insure that it couldn't be used to justify discrimination.
LAKSHMANANAll right. Robert Destro, you're a professor of law. From a legal standpoint, why do you think so many states are passing these laws now? Is it, as Josh suggested, a reaction to the Supreme Court same-sex marriage ruling? Do you feel that this could have been predicted?
DESTROOh, this is absolutely predictable and it's not really a reaction to the Supreme Court's opinion. This has been going on for quite some time. As Sarah correctly pointed out, the religious freedom restoration act back in the early '90s was a reaction to a Supreme Court opinion that basically confirmed the understanding that most of us who deal with religious liberty cases have is that religious liberty does not do well in courts. That basically courts can always find a good reason to step on somebody's defense that their conscience is being violated.
DESTROAnd the red light when off when the late Justice Scalia wrote in the employment division vs. Oregon case that, you know, any neutrally generally applicable law could be used to step on religious freedom. And that's precisely why you hear, in this argument today, that we hear the word discrimination, you know. Well, you could look at it that way. You could also look at it as saying, look, I may have a minority view today, you know, but I don't lose my right to dissent simply because somebody comes in and says I want you to photograph my wedding or I want you to print a T-shirt, as a case in Kentucky showed, you know, for the LGBT parade.
DESTROSo the question of where does the first amendment intervene to balance out the scale, you know, between the complete rights of the LGBT community and the complete rights of people who dissent from the current zeitgeist.
LAKSHMANANSo you see these laws as inevitable because basically they're asking people to set aside their strongly held religious belief to sanction behavior they vehemently oppose.
DESTROWell, I would go further than that. If you go back, you'll see that local human rights commissions have been forcing organizations to do that and penalizing them.
LAKSHMANANAll right. That's Robert Destro, professor of law at the Columbus School of Law at Catholic University. Also, Sara Warbelow of Human Rights Campaign and Josh Gerstein of Politico. We will be talking more about this issues, discrimination versus rights when we're back. Short break, stay with us.
LAKSHMANANWelcome back. I'm Indira Lakshmanan, sitting in for Diane Rehm. This hour we're talking about a new spate of religious freedom laws in states across the U.S. and what they mean about the rights for LBGT community. And joining us right now by telephone from Franklin, Tennessee, is David Fowler. He's president of the Family Action Council of Tennessee, a conservative organization that has lobbied in favor of Tennessee's new religious freedom bill that is awaiting Governor Haslam's signature. David is a former Tennessee state senator. Welcome to the Diane Rehm Show.
MR. DAVID FOWLERIt's great to be with you this morning, thank you.
LAKSHMANANSo David, tell us why you lobbied so hard for this religious freedom bill, known as House Bill 1840. Why does Tennessee need to allow therapists and mental health counselors to refuse service to anyone?
FOWLERWell, I think the question is actually why did the American Counseling Association change its rules in 2014 to prohibit these kinds of referrals. You see for decades, people could make a referral where the counselor concluded that they were not really the best person to help an individual because the goals or objectives the individual had were not ones the counselor could affirm and in good conscience help them achieve. And that would be destructive to the counseling relationship and to the client to try to help somebody achieve something you thought was not really in their best interest, and so it was better to make a referral.
FOWLERSo 2014, the ACA, because it lost a case in the Sixth Circuit on that very point, where the Sixth Circuit Court said, you know, look, your laws allow referrals, so why are you disciplining people from making referrals, they said, well okay, we'll fix that, we'll change the rule. So they changed the rule in 2014 to take away the right of referral that's been there for decades. And Tennessee, because it adopts the ACA code for its law, said, well, now wait a minute, we never as a state approved that change, we think people should be able to make a referral. So they essentially put the law back where it was for the last several decades.
LAKSHMANANAll right, so let me ask you, the bill allows a therapist to say I won't treat you if I feel something about you is offensive to my faith or in opposition to what I think are correct goals for counseling. Would this also include divorced people or people who are seeking divorces?
FOWLERWell, your question kind of conflates two different things. The answer to your first part of your question, does it allow me to say I don't like what you're doing, so I'm not going to counsel you, the answer to that is no.
LAKSHMANANI was actually responding to what you said because you said it was if you felt that their counseling goals were not in keeping what the therapist him- or herself felt was an appropriate counseling goal. So that's what I was responding to.
FOWLERThat's right. I'm distinguishing, though, between the goal of the counseling and the person. In other words, if somebody comes to you, and you happen to believe that -- let's just say you have the belief system that divorce is always wrong, regardless, okay, let's just assume you do, then you might say if you want counseling to help with the divorce, I'm probably not the best person to help you. We'll get into this, it'll become apparent that I don't think this is a good idea, then you're going to feel bad and worse, and then I'm going to have to refer you, or you'll leave. So just go see so-and-so.
LAKSHMANANSo it does include...
FOWLERBut the law does not allow you to just say because of your status as a divorced person, I won't treat you. See, the law is still there. The ACA ethics code provision that Tennessee follows that says you cannot discriminate based on sexual orientation, gender identity, gender expression, race, all that's still there.
LAKSHMANANAll right, well let me ask you because...
FOWLERSo it's only where the -- where you want to achieve something, and I say gosh, I don't think I can help you achieve that.
LAKSHMANANOkay, well let me ask you because counselors obviously take an oath to do no harm.
LAKSHMANANSo I'm thinking of young people who are going to a therapist for counseling. Gay kids, as we know, are four to six times more likely to commit suicide, they're more likely to suffer from severe depression, possibly become addicted to drugs and alcohol. So if someone lives in a rural area, and they can't easily get a referral to someone else, who's going to see them in that case?
FOWLERWell the rules, again, for the ACA that say one, you cannot neglect or abandon a client, are still there, for which you could be disciplined. The rules that govern how you make referrals are still there. So you could be disciplined for just saying look, you know, here's a phone book, figure it out, bye. You'd still be disciplined for that. And there would be some instances, perhaps, where under the circumstances the counselor would probably just have to do the best they could to try to help that person and so -- because as I said, the rule is still in place that you cannot -- you can't just abandon somebody.
FOWLERSo I think there's some sense in which some members of the counseling community assume that they have allowed a bunch of bad actors, mean-spirited people to become counselors who have no element of compassion, no element of care, no element of concern, and they're just going to be hateful and mean. Well, then they need to filter better who they're letting into their profession.
LAKSHMANANAll right, well let me as you a question.
FOWLERBut all those rules still apply.
LAKSHMANANI understand that you're also supporting a so-called bathroom bill similar to the one that was passed in North Carolina. How do you respond to people who say that this bill, the one that already exists, others like it, are simply aimed at discriminating against the LGBT community and are masquerading as First Amendment laws? I know that more than 50 clergy members have condemned Tennessee's religious freedom bill, as has the Tennessee Association for Marriage and Family Therapists, for example.
FOWLERWell, you know, what's -- again, two questions here. The thing that's interesting about the Family and Marriage Therapy people is that their regulations for referrals is even broader. It says that you can make a referral when you're unable or unwilling to help someone. So it's sort of the pot calling the kettle black that we have a rule here for licensed professional counselors that says you can only make a referral where the specific goal or objective is one you can't affirm, but yet the licensed marriage family therapist, their rule actually today, as it stands, says unable or unwilling. Well, that sounds very broad, so...
LAKSHMANANAll right, well, you cited the American Counseling -- you cited the American Counseling Association several times. Their code of ethics states that counselors can't discriminate against clients on the basis of sexual orientation or gender identity, and they have actually condemned the bill in Tennessee. So how do you respond to people who say that this is actually just discrimination against LGBT people masquerading as First Amendment?
FOWLERWell, I respond by saying they're right. The rule exists that you can't just, based on somebody's status as black or white or gay or straight or Christian or Muslim or Jew, just not treat somebody. That rule still is in place, and that's why this is not a bill that licenses unfettered discrimination. So they're actually citing you to the rule that protects people from the very discrimination they complain about.
FOWLERThe rule only says -- one of the things we have to appreciate, and to me this is not as much a religious liberty issue as it is a free speech issue, we say in our country, I have the right to speak what I believe. But the flip side of freedom of speech is the freedom to not be compelled by the government to speak.
LAKSHMANANAll right, David Fowler....
FOWLERThe government can't make me speak things I disagree with.
LAKSHMANANThank you so much.
FOWLERYou're sure welcome.
LAKSHMANANDavid Fowler is president or the Family Action Council of Tennessee. Thank you so much.
FOWLERYou're welcome. It was great to be with you.
LAKSHMANANThanks. So joining us now by telephone from Taylorsville, North Carolina, is Mitchell Gold. He's co-founder and chairman of Mitchell Gold and Bob Williams Home Furnishings Company, and he is also an LGBT activist and author of "Crisis: 40 Stories Revealing the Personal, Social, and Religious Pain and Trauma of Growing Up Gay in America." Welcome to the Diane Rehm Show, Mitchell.
MR. MITCHELL GOLDThank you, it's nice to be with you.
LAKSHMANANSo what -- how do you react to what you just heard from David Fowler about this new Tennessee bill?
GOLDWell, I think first of all, it is -- this bill is disguising their religion-based bigotry that these politicians, as well as some of their constituents, and they're calling it First Amendment rights. But the reality is this -- these laws and all of the laws in North Carolina and throughout the country, they're all based in people's religious beliefs, deeply held religious beliefs that happen to be very anti-LGBT. They're outdated beliefs, they're misguided, they're ill-informed, but worse, they're extremely harmful to people, especially kids.
GOLDAnd the heinous part of it is hiding behind religion saying, well, you know, this is my religious liberty, I have the right to do it and getting a free pass or think they're going to get a free pass. But I think now they're seeing more and more they're not getting that free pass from a lot of companies and a lot of people. But I think this is really -- it's really sad, and I think what a lot of these folks need to understand is in 2014, the American Counseling Association did change the rules because they've learned more, they've evolved, they have a better understanding of gay people, and as a result of that, they want to make sure that especially kids in a rural area where they don't have a lot of access that the health care professionals are trained.
GOLDThis bill that he's talking about really protects incompetent counselors. They take a Hippocratic oath. They are supposed to have continuing, ongoing education, and they should be learning how to deal with LGBT people, especially kids. And I'll point out that last Friday, I think it was, on April 9, it was the anniversary of a 1973, the American Psychiatric Association amended their rules and said that homosexuality was not a mental disorder.
GOLDI mean, we have to have progress. We learn things every day, and we should hopefully do better by people when we do that.
LAKSHMANANWell, you know from personal experience what it is like to struggle with your sexual identity, and when you were growing up, homosexuality was officially considered a mental disorder.
GOLDYes it was, and I -- it scared me to death. And I -- you know, my religion said it was a sin, and the medical profession said that I was broken. And I cried myself to bed practically every night, and I was very suicidal as a teenager. In fact I had made a pact with myself that if I couldn't change myself, and I prayed every night I would change, that by the time I was 21 I would take my life because life wasn't worth living this way.
GOLDAnd fortunately, you know, it was the '60s, people started being more outspoken about gay rights. I started to see some role models out there. The great Frank Kameny. You know, people said gay is good, and I started to change my life. And my father saw that I was in great turmoil in, like, 1971, and he sent me to psychiatrists, and lucky me, that psychiatrist, when I told them that I wanted to change, he said, no, no, no, I can't change you, but I can learn -- I can teach you how to love yourself and to live with your sexuality.
GOLDAnd as I often say, it's really when I was born again. That's when I started to really live my life and to flourish as a human being. But lucky me that that was changed then.
LAKSHMANANWell you -- you write in your book about how, you know, you were lucky that this was not a psychiatrist who suggested shock therapy and that, you know, he taught you to love yourself rather than, as you had said, feel ready to take your life. I think there -- by the figures that you have written, 1.5 million gay teens in America who are -- you know, who need the support of therapists. But what about the First Amendment rights of therapists and counselors? Should their rights be secondary?
GOLDWell, I mean, a heart doctor can't just say whatever they want to say. The heart doctor has to have education and know what they're talking about to people. They just can't say whatever they want. And this hiding behind the First Amendment is -- it's heinous. That's the best word that I can use to describe it. It's people that are so tied to their outdated religious teachings, they're so afraid -- and what this really boils down to because I know a lot of fundamentalist, anti-gay Christians, what it really boils down to is a lot of them do not understand that sexual orientation is not some random choice, but rather it's the way you're created, the way you were born.
GOLDAnd as a result of that, they still think that their kids could become gay if they see a lot of gay, you know, teachers, see a lot of married gay people. You know, they don't want homosexuality accepted in society because they are -- an I understand this. They're afraid that their kids are going to become gay. And they have not learned how to -- to re-understand the Bible. Matthew...
LAKSHMANANMitchell, hold that thought for a second. I'm Indira Lakshmanan, and you're listening to the Diane Rehm Show. If you'd like to join us, you can call 1-800-433-8850. You can send us an email to firstname.lastname@example.org. You can find us on Facebook, or you can send us a tweet. So Mitchell Gold, what about the new law in your home state of North Carolina, the so-called bathroom bill? It is not a religious freedom bill, per se, but I understand you oppose it. Tell us why, and tell me whether it's going to affect your business decisions since you are a major employer in North Carolina with your furniture business.
GOLDWell the bill -- the law in North Carolina is -- has to do with transgender people and what bathroom they use. But it also eliminates any given communities' opportunity to have anti-discrimination laws. This is much more than just a transgender bathroom bill. So it's the same thing. I mean, the -- if we drill back -- as a businessperson, I look to see the root of the problem. What can I do to solve the problem?
GOLDAnd when I look at the legislators who initiated this legislation, Representative Stam, Tim Moore, State Senate President Phil Berger, these folks all have deeply held anti-gay religious beliefs. And they put that, you know, and they use that to promote this legislation, to initiate this legislation. So this legislation in North Carolina, it's all about religion and whether or not we are going to continue in this country to let people say, oh, it's my deeply held religious belief, so everybody has to say oh, we can't, we can't touch that.
GOLDYou know, I think one of the unfortunate things is the LGBT rights movement has really progressed a lot, we've got great legal protection now that the Supreme Court granted, but we don't have a strong foundation of equality. We still -- it's still acceptable in America to use your religious beliefs to hurt other people. And my goal for my organization, Faith in America, is to make that unacceptable.
GOLDWe have to have media, and we have to have people in the legislature, as soon as these things come up, and it's using people's personal religious beliefs, we have to say no, we cannot allow that anymore. These are the same kind of religious beliefs that supported the horrors of slavery, the same kind of religious beliefs that denied women the right to vote, made them property, denied interracial couples.
GOLDAnd my big, big prayer someday, my big wish, is that America no longer has religion being used to hurt other people, and then it could spread to the rest of the world.
LAKSHMANANAll right, Mitchell Gold, quick yes or no answer. Is this going to affect your business? Are you going to take Mitchell Gold and Bob Williams Home Furnishings out of North Carolina as a result of this law?
GOLDNo, that's a really unrealistic view. I mean, I've got a factor with close to a million square feet, it's state of the art, over 600 employees. You just can't pick this up and move it somewhere else. And it is important for me to be here and to be a voice of reason and a voice of equality.
LAKSHMANANAll right, thank you so much for joining "The Diane Rehm Show," Mitchell Gold.
LAKSHMANANJosh Gerstein, there has been strong backlash to the North Carolina law from corporations and even some other state governments. Tell us what happened.
GERSTEINWell, you had a series of other state governments and I think local city governments across the country come forward after that law was passed and say that they were going to suspend -- usually they phrased it as all non-essential travel to North Carolina. I think you saw also in Mississippi a similar reaction from a bunch of states and local governments, trying to essentially impose some form of an economic boycott on states that are attempting these kinds of moves.
GERSTEINI think it's unclear how much influence they're going to have. I think the business impacts are much more significant. I mean, you can look at the difference states where these things have been proposed and see, for example, the ones that have large corporations like Wal-Mart are able to water down a law like this. In Arkansas, places like Mississippi that just don't have the same size business community, a law like this goes on the books.
LAKSHMANANAll right, we will be talking more about that when we come back. Also, your calls and your questions. Stay with us.
LAKSHMANANWelcome back. I'm Indira Lakshmanan, sitting in for Diane Rehm. This hour, we're discussion a spate of new religious freedom laws in the states that opponents say are actually discrimination against LGBT people. Joining me in the studio, Sarah Warbelow, legal director for the Human Rights Campaign, which works for civil rights for gay, lesbian, bisexual and transgender people. Josh Gerstein, a senior reporter at Politico. And Robert Destro, a Professor of Law and Director of the Interdisciplinary Program in Law and Religion at the Columbus School of Law at the Catholic University of America.
LAKSHMANANJosh, right before the break, we were talking about business reaction to North Carolina's bathroom law and others. Give us a few more details.
GERSTEINThere's been some pretty concrete reaction in North Carolina and pretty swift, I would say. You had PayPal, which was planning to set up an operations center in North Carolina that they said was going to create 400 jobs, just abruptly announced that they weren't going to do that and they were going to look for another place to host that. So, for states that are very interested in economic development, to have it suddenly announce that a big employer is pulling out a big facility like this will obviously get peoples' attention.
GERSTEINAnd then, maybe not quite as significant, but still something that grabs a fair amount of attention, Bruce Springsteen was scheduled to have a concert over the weekend there. And he announced, for the same reason, that he was cancelling the concert, which, you know, passed, I don't know exactly how much money is involved, but it's probably hundreds of thousands of dollars worth of tickets that have to be refunded, as well as a lot of other economic activity surrounding an event like that. And you're going to see a lot of pressure going forward on all kinds of organizations.
GERSTEINSports leagues, conventions that are scheduled to take place. Charlotte is a huge convention city and you're going to continue to see, I think, pressure on those kinds of organizations to cancel their events there or to postpone them. Move them to other places until North Carolina changes this law.
LAKSHMANANAnd Sarah, there have also been other reactions you've seen from Lions Gate, for example?
WARBELOWThat's correct. Lions Gate Films decided to pull filming. They had a project slated for North Carolina and moved that to elsewhere, in large part, in response to this incredibly problematic law. And a lot of this really could have been avoided by the state of North Carolina. They decided to call a special session and shove this bill through in 12 hours, start to finish. Legislators had to beg for the opportunity to be able to read the bill before being asked to vote on it. They were given five minutes from seeing the final copy to having to take a vote.
WARBELOWIt's clear that there was a desire to shut down debate, shut down the opportunity for LGBT people to tell their stories and explain how damaging this bill could be.
LAKSHMANANAll right, well, we have, let's bring in some of our listeners here. We have an email from Jaclyn, who says that Biblical beliefs are fundamental beliefs and an individual makes a decision to follow them or not. She says, she believes that LGBT people are going against God's law and that everyone has the right to make that choice, although it's not a choice she would make. She says, I'm not afraid that my child will become gay, but I am afraid that my child will be taught that it's all right to be gay.
LAKSHMANANTeaching a child that being LGBT is right goes directly against my beliefs and the beliefs I'm teaching to my child. Bob.
DESTROWell, I mean, she's put her finger right on the First Amendment issue. And really, I have to differ with the idea that this is just a fig for discrimination. I mean, this, this woman who has just written, has talked about what the messaging is. And as one of the prior speakers said, he says, he thinks that religious beliefs about traditional religious beliefs are outmoded. Well, that's fine. That's his belief. Her belief is that they're not outmoded. And the state should not be putting its finger on the scale. That's what the First Amendment is about, to punish people for holding those outmoded beliefs.
LAKSHMANANAnd so, Bob, I mean, you are a lawyer. What do you say to the people who say, okay, you know, your, you know, you have your freedom and your right to have your belief that being gay is not right. But don't these laws actually infringe on other peoples' rights by sanctioning discrimination against them? Where does one person's First Amendment right end and the next person's right to live their life begin?
DESTROWell, I mean, I think you need to see how these laws are put in practice. In real life, these laws are used as defensive, they're used as a shield against discrimination claims. You know, for example, in the Elane Photography case in New Mexico, you know, they needed a law like this to protect them from being forced to use their artistic talents. Now, if all you're doing is baking cakes like Costco does, nobody knows whether you're LGBT or not and nobody cares. And I also want to bring in this question of the bathroom laws.
DESTROThese are not First Amendment problems. They're kind of traditional privacy and quite frankly construction problems. I mean, all of us, in our homes, use unisex bathrooms all the time. So the question of how do you fix it in a way that is consistent with everybody's rights is really the problem, I think, as Sarah pointed out, you don't want to run these things through in five minutes. You want to have a reasoned discussion about where those dividing lines are.
LAKSHMANANWell, on that very specific bathroom question, we have an email from someone called Bob who says, when I was young, my father would bring my two or three year old sister into the men's room, because she was unable to use the facilities by herself. Would doing this now constitute a criminal or legal violation?
DESTROYou know, I'm not in favor of these kinds of laws. I mean, I think that the -- this is one of those things that society has to work out here in the District of Columbia. A lot of the new construction is unisex, and believe me, I've seen people jump lines to go into the men's room during rock concerts. So, the whole idea is...
LAKSHMANANYou mean women using men's bathrooms.
DESTROYeah, but I've seen men use women's bathrooms for, you know, any spot available. So, the whole point of this is that let's not make a mountain out of a molehill here. The people need protection for their First Amendment rights. It would be inconceivable for a human rights commission to tell the New York Times what to print. You know, why should a local human rights commission have the right to tell a printer in Kentucky what to print?
LAKSHMANANAll right, well, Sarah, let me give you a chance to respond to that. Bob is saying what's wrong with these laws. Everyone has a right to follow their own conscience. Even businesses.
WARBELOWWe've always put limitations on how you can treat people when you open yourself up as a business to the broader community. Back in the '60s, the Supreme Court decided a case called Piggie Park. In which a restaurant owner sincerely believed that there should not be mixing between the races. That it was a violation of God's plan. And it -- he was violating the Civil Rights Act of 1964 by refusing service to African-Americans. And the Supreme Court said, regardless of what your religious beliefs are, because you've opened yourself up to the public, you need to treat all paying customers equally.
WARBELOWAnd that's really what we're talking about when it comes to laws that protect LGBT people. These laws are not new. The state of Wisconsin has had such a law in place since 1982, protecting sexual orientation. Minnesota has had a law in place protecting sexual orientation and gender identity since 1993. These are old ideas that have gained some traction by individuals who really want to voice their opposition to marriage for same sex couples.
LAKSHMANANAnd so, you again believe that this is in part a reaction to the Supreme Court, essentially, you know, putting its imprimatur, saying gay marriage is okay, and this is sort of blowback?
WARBELOWI wouldn't say it's a reaction to. I think that individuals who have long been interested in undermining rights for LGBT people are using the recent decision as a hook to have that broader conversation and to start pushing damaging bills through. But it's been a long desire to do so.
GERSTEINIndira, I think it would be a mistake to look at these laws strictly as being applied to situations involving LGBT individuals. As Sarah was saying, the history of this goes back to the Civil Rights movement in the 1960s. People didn't want to provide services, business owners, to African-Americans. And some people have said, even in the context of the current set of laws, you can come up with various scenarios. Bob might say they don't occur very often, but a fundamentalist Muslim that didn't want to do business with women could potentially say that my very sincerely held religious beliefs are that I can't interact directly with any women who are not members of my family.
GERSTEINSo, I'm afraid no women can come into my store. I don't see any reason to think that that, as a legal matter, there'd be something wrong with that claim. You could make those claims under these sorts of laws. I don't think it would happen very often, but there's no reason to think people couldn't cite religious beliefs that go far beyond the LGBT issue to a variety of other possibilities.
LAKSHMANANBob, isn't Josh right about this, that a Muslim shopkeeper in Mississippi could now say, no women allowed in my grocery store for the same religious freedom reasons?
DESTROYou can always come up with a parade of horribles, you know, that something could possibly happen. If you look at what's happening on the ground, the problem I have with the general discussion this morning is that it's happening at the 50,000 foot level. When you actually go down to the ground level, what you're finding is that the people who are getting in trouble are the ones who are -- they're not selling commodities. They're selling very unique kinds of personal services that have First Amendment implications to them.
DESTROWhether it's printing, photography, you know, even...
LAKSHMANANThat relate to supporting a same sex marriage. That's your specific case, but Josh's case sounds like it could also fit under the same religious freedom protections.
DESTRO...we -- and those are the cases where you say look, there is a, you know, I would agree, that should not be legal. But it's got to be decided on a case by case basis, you know, and that when somebody opens themselves up for business, they don't open themselves up for everything. You know, and that's the questions that a commodity -- you're not going to let somebody in their grocery store. That's one case. You know, but asking somebody to go witness or participate in a same sex marriage, or to counsel somebody -- you know, coming back to the counseling question.
DESTROI want to correct something for the record. Which is, counselors do not take a Hippocratic Oath. They agree to be, just like lawyers do, to be professional. And there does come a point, in a professional relationship, if the counselor and the client don't see eye to eye, the counselor eventually has got to decide whether continuing is a conflict of interest. And if the answer is that it is, then they have to refer.
LAKSHMANANI'm Indira Lakshmanan and you're listening to The Diane Rehm Show. Well, we do have a counselor named Susan who has written in from North Carolina. She says, I'm a Marriage and Family Therapist listening to your show and as a therapist, we have a duty to meet our clients where they are when they enter the therapy room. It's not about the therapist, it's about the client. We're trained to be present for our clients and leave our own bias outside. I believe in free speech, however. In the therapy room, the client is the one with the free speech.
LAKSHMANANIf a therapist brings their own bias into the room, my question is, why did you even become a therapist if you're only prepared to serve a certain population? Sarah.
WARBELOWCertainly one of our concerns. You know, the bill in Tennessee really could result in young LGBT people being outed to their families. If you are being turned away from services, you've got to explain something to your parents. That can be incredibly damaging. And keep in mind that the law isn't just written in such a way that it only applies to LGBT people. It is anything that goes against that therapist's religious beliefs. So, if you've got a youth who's struggling with their belief in God or who wants to convert from one religion to another, you're potentially putting that young person at grave risk, as well.
LAKSHMANANAll right, well, a quick alternate view from Linda in D.C. who says I think this legislation is appalling, however, wouldn't you want to know that your potential therapist feels this way so you could find some other, more qualified counselor? All right, let's take a call from Karen in Dallas, Texas. Karen, you're on the line.
KARENThank you very much. I'm the mother of a transgender teenager and though her birth certificate identifies her as male, she presents herself as female. These laws argue that women and girls will be in danger if a person like my child uses the women's bathroom. But in point of fact, my child would be the one who might be in serious risk if she tried to use a men's bathroom.
KARENSo I think these laws are based on false assumptions about the danger of transgender people. It's just not held -- it just doesn't hold up to statistics.
LAKSHMANANAll right. Sarah, this is something that you have definitely dealt with at the Human Rights Council.
WARBELOWWe have grave concerns about these laws, precisely for that reason. North Carolina is requiring a subset of women and girls, trans women and girls to use restrooms that are not consistent with their gender identity. Placing them at great risk of violence. And even though the bill is limited, to restrooms that are in public buildings, that includes a huge number of places. It's not just town hall. It's libraries, it's schools, it's many of the convention centers. Many of the airports are all government owned. And there are not always single use restrooms available in these places.
WARBELOWSo either you're putting a child at risk of bladder infections, general distress, or potential violence.
LAKSHMANANAll right, let's take one quick last call. Samir, we've only got a few moments here. Samir in Miami, Florida. Go ahead.
SAMIRYes, good morning. By no means, I'm not religious or conservative. However, what's right is right. And that brings me to my question. Why can't we work fiercely and look for solutions that accommodate or serve both parties, whether gay and lesbian or religious beliefs? Because we can't ask the gay person to abandon their sexuality. As well, we cannot ask the religious person to disown their religion. And I think we should work and drop the high and the bigotry -- the language, the high language and work fiercely to find a solution to accommodate both parties at the same time within the law, within the Constitution.
LAKSHMANANThank you so much, Samir. Josh, how do you react to that? Is there a legal solution that would satisfy both parties?
GERSTEINI mean, I think it's -- there may be a solution that will satisfy many on both sides of the debate in some of these situations. But I don't think that's going to put an end to the legal dispute, because as Bob was alluding to earlier, there are always going to be these cases that come up from the edges of this debate, whether it be involving photographers, bakers and so forth where, you know, some degree of artistry is involved. But it's also sort of a commodity. It's no accident that you see these cases coming up in that gray area.
GERSTEINNo one's being asked to give a speech that they don't agree with, but they are sometimes asked to make a cake they don't agree with. And that's where you're seeing the really interesting legal disputes that are flowing out of this.
LAKSHMANANAll right, Sarah, in the short time that we have left, this must be something that the Human Rights Commission has thought about. The Human Rights Committee has thought about, so tell us, is there some in between solution?
WARBELOWWe believe very strongly in First Amendment rights. We believe very strongly in freedom of religion. But laws that are passed have to draw a line between expression of one's religious beliefs and practices and not allowing those religious beliefs and practices to harm a third party, to result in discrimination and impinge upon peoples' ability to live their lives.
LAKSHMANANAll right, Robert Destro, we have a person here who's saying, Patricia, who's emailed to say, to become a US citizen, I had to study the Constitution and the Amendments and my understanding is that people have the freedom to worship, not to discriminate. But these laws allow people to practice bigotry and hatred and have nothing to do with worship. Quickly, how do you respond to that, and you've said that the same sex marriage decision by the Supreme Court sent an electric current through the religious community. How do you see this issue playing out in the coming months?
DESTROWell, the, you know, I hate to differ with Patricia, but the First Amendment requires that people be free to exercise their religion, so it's not just, you know, I have a right to be a Catholic. I have the right to act like one.
LAKSHMANANAll right, that's Robert Destro, Professor of Law at the Catholic University of America. Also, Josh Gerstein, senior reporter at Politico. Sarah Warbelow, legal director for the Human Rights Campaign. Thank you to all of you for being with us this hour. Thank you to all of our listeners for calling in and sticking with us. I'm Indira Lakshmanan sitting in for Diane Rehm.
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