Josh Hawley's religious liberty proposal makes no sense.

This Attorney General Candidate’s “Religious Liberty” Proposal Makes Absolutely No Sense

This Attorney General Candidate’s “Religious Liberty” Proposal Makes Absolutely No Sense

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Expanding the LGBTQ Conversation
Dec. 28 2015 5:12 PM

This Attorney General Candidate’s “Religious Liberty” Proposal Makes Absolutely No Sense

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Missouri attorney general candidate Josh Hawley.

Hawley campaign ad

Josh Hawley, a Republican running for Missouri attorney general, recently came out swinging in favor of state-level religious liberty legislation to ensure that churches and businesses will not be compelled to “participate” in same-sex marriages. Hawley, who is challenging a state senator for the nomination, painted himself as a bold truth-teller, declaring that “my part is to raise this issue and speak out in favor of it and hold [legislators'] feet to the fire.” He also insisted that “this is the way we avoid a cultural war, not prolong it.”

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern covers courts and the law for Slate.

These statements are rather curious, for two reasons. First, and most obviously, churches are shielded by the First Amendment from engaging in any wedding ceremony they disagree with—something that Hawley, a professor at the University of Missouri School of Law, surely understands. But second, and more important, Missouri does not currently protect gay people from discrimination. Not in the workplace, not in public accommodation, not in housing, not in education. An employer could fire a gay worker because he was gay; a store could eject a gay customer because he was gay; a landlord could evict a gay tenant because he was gay; a school could expel a gay student because he was gay—and none of these homophobes would break a single state law.

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To glimpse the impact this lack of protection has on Missourians, just look at the case of James Pittman. A gay man, Pittman alleges that he faced vile homophobic harassment at work: Employees called him a “cocksucker,” asked whether he had AIDS, ridiculed him for having a boyfriend, and mocked him when they broke up. Then he was fired. Pittman sued his employer, alleging anti-gay discrimination. But a state court hesitantly threw out his case, explaining that anti-gay workplace discrimination is perfectly legal under Missouri state law.

Since businesses can already refuse to serve a gay couple planning their wedding—and a gay person, simply because he is gay—why does Hawley think more legislation is necessary to protect businesses from having to “participate” in same-sex marriages? Why should they be protected from a threat they don’t face? I asked Brad Todd, an adviser to the Hawley campaign, why religious liberty laws were necessary in Missouri.

“Josh supports our country’s long tradition of accommodating people of different beliefs in order to promote mutual respect and toleration,” Todd wrote me. “For that reason, he supports a statewide law or constitutional amendment that would head off unnecessary litigation and make clear to over-zealous regulators that the First Amendment protects the religious liberty of Missourians in their professions when it comes to the issue of marriage.”

So does Hawley also support sexual orientation nondiscrimination laws with clear religious exemptions?

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“He does not believe Missouri needs to create any new class under its anti-discrimination laws regarding public accommodation or employment,” Todd clarified.

Here, then, is Hawley’s logic: Missouri needs more regulation to curb “over-zealous regulators”; new laws to solve a problem (infringement of religious freedom) that doesn’t exist; and no laws to solve a problem (anti-gay discrimination) that definitely does exist. Perhaps the best response to this stance is that of Mike Hoey, executive director of the Missouri Catholic Conference—a public policy agency for the Catholic Church, which is chaired by bishops and opposes same-sex marriage.

“I don’t see Catholic priests being forced to marry people of other faiths. I just don’t see that as an issue,” Hoey told the Columbia Daily Tribune. “We need to all chill out.”