One of my favorite stories told by Harry Truman was about “oompah.” Truman liked to tell of campaigning on an Indian Reservation. After each promise of what he’d do for Indians if elected, the crowd shouted, “Oompah! Oompah!” The louder the chorus grew, the more inspired Truman’s speech became. As he left, the president has to cross a corral which had been filled with horses. “Careful,” his Indian escort told him. “Don’t step in the oompah.”
This election year certainly has its share of “oompah.” Joint Resolution 39 that was pending in the Missouri House of Representatives may be deserving of some shouts of “oompah.” If you examine the contents of the resolution, it provides that the state shall not impose a penalty on any of the following:
• A religious organization that believes or acts in accordance with a sincere religious belief about marriage between persons of the same sex,
• Any clergy or other religious leader who refuses to perform, solemnize or facilitate such a marriage;
• Any church, temple, mosque or other house of worship which declines to make its buildings or other facilities or property open or available to perform, solemnize or facilitate such a marriage or ceremony; or
• Any individual who declines to participate in a wedding or marriage between persons of the same sex, or to provide goods or services of expressional or artistic creation for a wedding or a reception before or after the wedding because of such a belief.
The Resolution did not pass out of the House Emerging Issues Committee this week, so it may be dead for now. Many think it was inspired by a desire to provide a “wedge issue” for the November election to energize the conservative voters who sympathize with the intent of the Resolution.
The Missouri Baptist Convention, which represents all of the Southern Baptist churches in Missouri, was actively campaigning for the resolution. I am a Southern Baptist, but they were not lobbying for me.
My problem with this resolution is not the sincere religious beliefs. I am just wondering how the state is going to penalize a photographer who declines to make a buck because of a religious belief about gay marriage. I suspect if a photographer or a florist expressed sincere beliefs to a gay couple or their wedding planner that they would probably not get the job anyway. I can’t imagine anyone being asked to be a participant in a gay marriage who has a sincere religious belief that is opposed to such a marriage.
The proposed resolution does set out the kinds of penalties that are feared. Fines and taxes are identified. Other penalties include withdrawing an exemption from taxation, or hindering a deduction of a charitable contribution. The state could not withhold a license or health care benefits, and could not deny access to meeting space because of such sincere religious beliefs. The last penalty is recognizing an administrative charge or civil claim against a religious organization or individual for exercising the sincere religious belief.
None of these penalties are currently recognized in the law. They would not be imposed absent some legislative authorization. Even if the legislature tried to impose such a penalty, it would run afoul of the religious liberty provision in the Missouri Constitution and ignite a legislative firestorm. Furthermore, there is little risk of some administrative charge or civil claim for taking some action or refusing to take some action because of a sincere belief about gay marriage. A court has already held that the Missouri Human Rights Act does not protect sexual orientation.
In October of last year, the Western District Court of Appeals decided in Pittman v. Cook Paper Recycling Corp., that the Missouri Human Rights Act does not prohibit job discrimination on the basis of sexual orientation. In that case, an employee was claiming that his employer discriminated against him on the basis of his sexual orientation. Since sexual orientation is not one of the subjects sought to be protected by the human rights act, there is no right to make a claim, at least under state law after this case was decided.
The Missouri Human Rights Act has a much broader scope than just protecting against discrimination in employment. It includes public accommodations, selling and renting real estate, and commercial real estate loans. It prohibits discrimination on the basis of race, color, religion, national origin, ancestry, sex, disability or familial status. But after the Pittman case was decided, it does not include sexual orientation. Thus, it is legal to discriminate against gay people in Missouri in a variety of ways under state law. Why do we need a law that justifies such discrimination on the basis of “sincere religious beliefs” when you can discriminate under current law without such religious beliefs?
I realize that this is an issue that may never die. I also do not deny the sincerity of those who have religious beliefs that deny gay marriage. I would defend their right to have such beliefs even if I don’t agree with them.
It is ironic that while this resolution was being debated, another bill called the Missouri Nondiscrimination Act was also being considered. Essentially, the nondiscrimination law would undo the decision in the Pittman case and make it illegal to discriminate on the basis of sexual orientation in employment, housing, lending and public accommodations. It is highly unlikely that those who have sincere religious beliefs about gay marriage would vote for nondiscrimination legislation.
Therefore, that law is not likely to pass anytime soon. In the meantime, employers in Missouri can discriminate against gay people, and people can refuse to sell or buy housing from gay people. Of course, such conduct may be a violation of federal discrimination laws, which opens the door to lawsuits in the federal courts. Missouri legislators have no control over such claims. Sounds like a confusing mess to me, or as President Truman might have said: a “heap of oompah.”
Bob Buckley is an attorney in Independence, www.wagblaw.com . Email him at firstname.lastname@example.org