by Nico Lang
A bill that would allow people of faith to deny services to LGBTQ people was quietly reintroduced to the Illinois General Assembly earlier this year after stalling in committee in 2016.
Senate Bill 64, introduced by Lebanon Republican state senator Kyle McCarter, would prevent the government from taking action against businesses and licensed professionals who act in accordance with their belief that marriage is "the union of one man and one woman." The state of Illinois would, for example, be unable to penalize a florist who declines to make an arrangement for a same-sex couple's marriage ceremony, or a baker who refuses to make them a wedding cake. The bill defines these penalties as additional taxes or the denial of grant money.
Although the bill seems to have slipped under the radar after it was reintroduced in January, LGBTQ advocates say that, if passed, the legislation would allow for broad-based discrimination against queer and transgender people, as well as other groups.
"This is not an attack on LGBTQ people alone," said Brian Johnson, CEO of Equality Illinois, a Chicago-based LGBTQ advocacy group. "This is an attack on the majority of Illinoisans."
Johnson pointed to language in SB 64 that would allow private businesses to refuse customers based on their belief that "sexual relations are properly reserved" to marriages between heterosexual couples. Such provisions in the bill amount to an "attack on women and unmarried people in sexual relationships," he says.
"There are lots of different implications," Johnson explains. "Doctors could refuse to prescribe birth control to unmarried women. Landlords could refuse to rent homes to unmarried couples."
Neither McCarter nor fellow Republican lawmakers and bill cosponsors Tim Bivins and Dale Righter responded to requests for interviews.
Currently, LGBTQ people are protected from discrimination in housing and employment under the Illinois Human Rights Act, which was enacted in 2006. Illinois is one of 22 states, including Washington, D.C., with such explicit protections in place for LGBTQ people. In addition, the Chicago-based Seventh Circuit Court of Appeals ruled this week that the Civil Rights Act of 1964 bars workers from being fired on the basis of sexual orientation or gender identity—although the Atlanta-based 11th Circuit Court delivered an opposite ruling just a few weeks prior, making it more likely that the U.S. Supreme Court could eventually take on the issue.
Still, Jamie Frazier, a pastor at the Lighthouse Church of Chicago, is worried SB 64 would erode existing protections.
"As a gay man, I could be denied an apartment because the person renting to me doesn't support who and how I love," he says. "Were I to be married, a hospital could deny my partner the ability to visit me because they're religious and disagree with my sexual orientation. What's insulting is that the people who are attempting to assault my freedoms as a queer man of color are doing it under the guise of Christianity. It's a double betrayal."
McCarter first filed a "religious freedom" bill in 2015 following the U.S. Supreme Court's ruling in Obergefell v. Hodges, which legalized same-sex marriage across the United States. When Illinois voted to become the tenth state to recognize same-sex marriage in 2013, the legislator claimed in a Facebook post that it was "discriminatory towards those who hold the sincerely held religious belief that it is a sacred institution between a man & a woman." McCarter also warned that businesses in Illinois would be "affected" by the decision.
"Bed and breakfasts, florists, all those that are wedding-related, will be affected," he wrote. "They will choose to, most of them, dissolve their businesses."
That has not come to pass. There was, however, the 2011 case of the Timber Creek Bed & Breakfast in Paxton, which declined to host the civil union ceremony of Todd and Mark Wathen, a gay couple that lives in Tuscola. According to the lawsuit filed against the establishment, owner Jim Walder e-mailed the couple a series of Bible verses "detailing how the Creator of the Universe looks at [the] gay lifestyle."
"We believe homosexuality is wrong and unnatural based on what the Bible says about it," the owner reportedly claimed during the numerous correspondences, according to court briefing. "If that is discrimination, I guess we unfortunately discriminate."
The Wathens won the suit last year. The Illinois Human Rights Commission fined Timber Creek $81,000 for the infraction, but the business has remained open.
Laurie Higgins, a writer for the conservative public policy group Illinois Family Institute, says whether or not you agree with how the Timber Creek owner handled the situation, the Constitution protects Walder's right to freely exercise his faith in any manner he sees fit.
"[Walder] had a right to do it," Higgins says. "All laws discriminate. All laws say something is right and something is wrong. There's just discrimination and unjust discrimination."
Higgins argues that the Wathens were refused service not because of anti-LGBTQ bigotry, but because of a deeply held religious conviction about what constitutes marriage. She points to Barronelle Stutzman, the proprietor of Arlene's Flowers in Richland, Washington. Stutzman was sued by Curt Freed and Rob Ingersoll in 2013 after she refused services for their wedding. Ingersoll and Stutzman had been friends for nearly a decade, and she gave him a hug when she found out he was getting married. But Stutzman, who is a Christian, drew a line at making flowers for his nuptials.
"For people of faith, your religion informs your whole life," Higgins says. "So for the government to come in and say that you must make a product that offends the God you serve, that's very deeply troubling."
If Stutzman intended to discriminate against Ingersoll because of his sexuality, Higgins argues, she never would have refused Ingersoll service prior to his engagement.
But if conservatives feel that same-sex marriage impinges on their rights to the free exercise of religion, American Civil Liberties Union of Illinois public policy director Edwin Yohnka doesn't think SB 64 is a solution.
"I don't see that the answer to that is to let people pick and choose what laws they want to follow and which ones they don't," Yohnka says. "That's really what these measures do. Courts have never, ever come down on the side of recognizing this kind of free conscience law within the context of a public accommodation. It's hard for me to understand where the legal standing is on this."
Illinois and 21 other states have a Religious Freedom Restoration Act (RFRA) that already protects the rights of religious people. After President Bill Clinton enacted a national RFRA law in 1993, states passed their own versions to offer people of faith additional protections at the local level.
These bills, explains University of Illinois professor Robin Fretwell Wilson, were designed to keep the government from "crushing people with neutral rules when they can predict that religious people are going to be impacted." Such a case might include an Amish man who is unwilling to put an orange safety triangle on his buggy because he feels that "as a matter of religion, that's flashy," Wilson says. Rather than sending him to prison, a RFRA law would allow for a reasonable accommodation, such as putting a lantern in his carriage instead.
Wilson believes that's very different from what SB 64 proposes.
"This is an absolute exemption from doing something without any consideration for any other interests," she says. "The RFRA says that the government can't push religious people around without good reason. It doesn't say religious people win."
Wilson put forward a proposal to Republican legislators: For bills like SB 64 to gain traction in the Illinois General Assembly, its authors need to consider whether there's "someone else that can pick up the slack" in cases of religious accommodation. For instance, if a florist is unwilling to make a flower arrangement for a gay couple's wedding, the proprietor would have to ensure that someone else at the same establishment would be willing to provide the same service without burdening the couple.
"If they aren't able to do the service themselves, we have to find some way to fulfill that duty," Wilson said.
The ACLU has predicted that during the 2017 legislative session, more than 200 bills regarding the rights of LGBTQ people will be heard by state legislatures. In 2015, Indiana passed a "religious freedom" bill similar to the one introduced by McCarter, and Mississippi enacted its own law the following year. The latter legislation was overturned by a federal court ruling in 2016, a decision that is currently being appealed. Indiana's law was amended to "fix" perceived discriminatory provisions following a backlash from the LGBTQ community.
Nationally, no laws around "religious freedom" have been enacted this year, and Yohnka believes that the same will hold true in Illinois, which is also considering a bill that would force transgender students in K-12 schools to use separate bathrooms. He claims that there's "no appetite" for this legislation in Illinois, and says that the bill has yet to gain traction in the General Assembly.
"This bill isn't going to pass," he says. "It will never get to the floor. It will never get a vote. It will never become law."