No Shirt, No Shoes, No Gays: Virginia Law Would Allow Businesses to Discriminate

Conservatives claim gay rights infringe on business owners’ religious freedoms.

(Photo: Wojtek Radwanski/Getty Images)

Jan 8, 2015· 2 MIN READ
Nicole Pasulka is a writer and reporter who lives in New York City. She has written for Mother Jones, BuzzFeed, The Believer, and the New York Observer.

If a Virginia legislator with a history of opposing gay rights has his way, business owners across the state could be permitted to shut the door on gay customers. Bob Marshall, a delegate from the state’s 13th District, in the Washington, D.C., suburbs, introduced a bill last month that would make it legal for business owners to refuse service on the basis of their religious opposition to gay marriage and what the bill describes as “homosexual behavior.”

Marshall has tried (and failed) to get gay people excluded from the state’s National Guard, and in 2012 he led an effort to block a judge’s appointment on the grounds that the nominee was gay, saying that “sodomy is not a civil right.”

The bill proposes that anyone with a religious or moral objection to “same-sex ‘marriage’ or homosexual behavior” seeking a business license from the state of Virginia will not have to “perform, assist, consent to, or participate in any action or refrain from performing, assisting, consenting to, or participating in any action” that would “violate” that religious or moral conviction.

Now Marshall wants to make it so that if a Virginia barber doesn’t want to cut a gay person’s hair, it would be totally fine. It would also be legal for a doctor to refuse to treat a lesbian patient because she’s in a same-sex relationship. Businesses could put up signs prohibiting gay customers, and college professors would be allowed to refuse to teach gay students, according to Greg Nevins, a lawyer for the LGBT rights organization Lambda Legal, who fought Virginia’s same-sex marriage ban last year.

Civil rights activists and LGBT Virginians are not amused. “It’s licensing [discrimination], authorizing it, and saying it’s okay,” Claire Guthrie Gastañaga, executive director of the ACLU, told LGBTQ Nation.

Virginia is one of more than a dozen states where lawmakers have responded to gay rights gains with laws claiming to protect the religious freedom of antigay business owners and institutions. But conservatives have not had an easy time turning these bills into state law. In 2014, in Kansas, the state House of Representatives passed a law similar to the one Marshall is proposing, but it died in the state Senate.

A less explicitly antigay version of a religious freedom protection law was approved by Arizona’s legislature last year. Though lawmakers and some legal scholars insisted that it wasn’t an attack on gay rights, Gov. Jan Brewer vetoed it after an outcry from the gay community, saying she believed businesses were “overwhelmingly opposed” to the law. Mississippi passed a somewhat vague law in April that prevents state actions that “burden a person’s right to exercise of religion.”

In Michigan, a version of the federal Religious Freedom Restoration Act, which states that government cannot substantially burden someone’s free exercise of religion, passed the state House of Representatives in December. The legislation would give more legal latitude to claims that a state law infringes on religious expression, but gay rights activists and proponents of the law disagree about whether it legalizes discrimination.

Experts see another veto coming in Virginia should Marshall’s bill get through the legislature. Christy Mallory, senior counsel at the Williams Institute, who has been tracking nondiscrimination protections for LGBT people across the country, pointed out that Gov. Terry McAuliffe, a Democrat, has a “track record of expanding protections for LGBT people.”