Kentucky debates increasing religious freedom protections

Kentucky’s Republican-controlled House of Representatives this week is set to consider a bill that would expand religious freedom protections, but the measure faces an uncertain future with the state’s Democratic governor.

Last week, the state House Judiciary Committee voted 14-6 to forward House Bill 47, a Republican-sponsored measure, to the full House. The bill would broaden protections already provided in the state’s Religious Freedom Restoration Act, commonly referred to as KRFRA, passed over a decade ago.

State Rep. Steve Rawlings, a Republican from Boone County across the state border from Cincinnati, is the bill’s lead sponsor. It’s not the first time he’s tried to pass a religious freedom measure. Last year, he sponsored a similar bill, House Bill 204, which failed to make it to a full House vote. He hopes this new measure would add teeth to existing religious freedom protections. For instance, someone who believed his or her religious freedoms had been abridged could sue for damages in state court.

“The things we’ve seen happening in our country, we need to protect every freedom and liberty that we have,” Rawlings told WORLD.

Headscarves and mugshots

Rawlings and his supporters cite the case of 24-year-old Clara Ruplinger, a Muslim woman arrested after a July 2018 demonstration, where she and others allegedly blocked elevators leading to an immigration court in a downtown Louisville federal building. As her booking photo was taken, she was ordered by corrections officers to remove her hijab in the presence of men, “in violation of her sincerely held beliefs,” according to a lawsuit she later filed in U.S. District Court. The lawsuit alleges that she further suffered wrongdoing when her mugshot, showing her without the hijab, was made public in the Louisville Metro Corrections’ mugshot database and several media outlets published the image.

Ruplinger’s lawsuit claimed her religious freedoms were violated, citing both the U.S. Constitution and KRFRA. But the state of Kentucky argued it had “sovereign immunity” from her claim seeking damages. In May 2020, the Supreme Court of Kentucky sided with the state, ruling that the current version of KRFRA does not include a waiver of sovereign immunity.

Proponents of House Bill 47 say the new bill would correct that loophole to KRFRA, removing Kentucky’s “sovereign immunity” defense. They’re not just concerned about headscarves—Rawlings said the pandemic showed “how quickly our constitutional rights and our freedoms were taken away.”

Church citations

On Easter Sunday in 2020 during the height of the COVID-19 quarantine, Kentucky Gov. Andy Beshear dispatched state troopers to a church service in Louisville. According to a federal lawsuit, troopers placed notices on the vehicles of church members who attended an Easter service at Maryville Baptist Church. Those papers ordered the vehicle owners to quarantine for two weeks, informed them that law enforcement recorded their vehicle registration numbers, and warned that they were at risk of further enforcement measures.

According to a spokesman for Liberty Counsel, the organization that represents the church, the case is still pending in U.S. District Court. Beshear eventually dropped his prohibitions on in-person and drive-in services after the church obtained injunctions from the courts. A federal appeals court also ruled that the church’s pastor and congregants were entitled to recover attorney’s fees and legal expenses, according to Liberty Counsel.

Rawlings said his new legislation would make it possible for the churchgoers who received the quarantine order notices to pursue legal damages, including monetary awards, from the state on the grounds that their religious freedoms were violated.

Committee debate

Not everyone is on board with the proposed expansion. Last week, Rawlings spoke before the Kentucky House Judiciary Committee alongside Greg Chafuen, an attorney with Alliance Defending Freedom. For about 45 minutes, state legislators questioned the pair about the proposed bill, and the committee heard from opponents.

Rep. Daniel Elliott, the committee chairman and a Republican from Danville, questioned whether House Bill 47 would lead to a “runaway train of litigation…based upon someone suggesting that their religious freedoms have been burdened.”

Rawlings responded by citing the track record of more than two dozen states that have religious freedom laws, arguing that they don’t have a problem with frivolous lawsuits.

Rep. Pamela Stevenson, a Democrat from Louisville, accused backers of trying to provide legal recourse for fringe religious leaders such as Charles Manson or Jim Jones. Rep. Kim Banta, a Republican from Fort Mitchell, questioned how the bill would treat groups that feel they have a religious imperative to sacrifice animals.

In response, Chafuen cited the example of a religious group that regularly sacrifices chickens. He said House Bill 47 would not automatically grant damages to practitioners of the religion if the state ordered them to stop. Rather, it would bring the issue before the courts, which would determine whether the practice qualified as a legitimate religious exercise, whether the state had a compelling enough interest to intervene in the religious exercise, and if the state was applying the least restrictive means possible to enforce its law on the group.

Chafuen added that the expanded religious freedom law, “can’t determine the outcome” of the case, “but it at least would give them a fair day in court.”

LGBT opposition

Several LGBT leaders spoke out against the bill. Speaking before the committee, Chris Hartman, executive director of Kentucky’s Fairness Campaign, called the bill “jackpot justice” for the Alliance Defending Freedom.

At one point during the hearing, Rawlings cited protections House Bill 47 would provide to Sunrise Children’s Services. The Kentucky foster care and adoption agency is affiliated with the Kentucky Baptist Convention and holds to the Biblical view of marriage. Beshear has threatened not to renew the state’s contract with the provider unless it signed a so-called “anti-discrimination” policy that would have required it to place children with same-sex couples. As a result, the contract expired in 2020. According to media reports, the state initially threatened to stop placing children with the agency in the absence of a contract but agreed to continue while negotiations were ongoing. Beshear ultimately dropped the LGBT language from the contract after the U.S. Supreme Court’s 2021 ruling in Fulton vs. City of Philadelphia, in which the court sided with a Catholic adoption agency in a similar situation.

Rawlings said House Bill 47 would enable agencies like Sunrise to seek state damages if state policies failed to properly accommodate their religious beliefs.

That drew the ire of Rep. Keturah Herron, a Democrat from Louisville who self-identifies as LGBT. She said that if she wanted to adopt, Sunrise, “would have the right to discriminate and tell me no.”

But Chafuen said the true victims in the case would have been foster kids and families who would have suffered if the contract with Sunrise had ended. He also added that there were other providers available to same-sex couples.

“There are many options – everybody can find a provider here in the state,” Chafuen said. “But if the state is trying to shut down a particular organization because its beliefs don’t align with what the state wants…that’s where you start to get these issues of religious freedom.”

Sunrise’s attorney has said the agency also refers interested parties to other adoption and foster care organizations that do place children with same-sex couples, according to The Associated Press.

Rawlings told WORLD House Bill 47 is not designed to protect a restaurant owner who refuses to seat LGBT patrons. Instead, he says, it aims to provide legal recourse to individuals and business owners who refuse to be forced by the state to celebrate a view of marriage that contradicts their religious beliefs.

He said the bill would protect Kentucky residents who face similar situations as Jack Phillips, the Colorado owner of Masterpiece Cakeshop, who serves gay clients while refusing to design a cake specifically celebrating a same-sex union.

“The bill is not directed at punishing or targeting anyone,” Rawlings said. “The bill is to protect the religious rights of believers and that they can live by their faith,” he said.