On the Saturday of the Easter Triduum, Virginia governor Ralph Northam signed Senate Bill 868, called the Virginia Values Act, which “prohibits discrimination on the basis of sexual orientation and gender identity in housing, public or private employment, public spaces and credit transactions,” according to the Washington Post. It also provides “causes of action,” allowing individuals, and even Virginia’s attorney general, to sue over alleged discrimination. The bill—which was submitted by Adam Ebbin, the first openly gay person elected to the Virginia Senate—makes Virginia the first Southern state to offer such protections for LGBTQ persons. It will also place Virginia front and center in future religious freedom legal contests, which will inevitably arise from this legislation. Catholics nationwide should beware.
As The Family Foundation president, Victoria Cobb, notes, “sexual orientation” and “gender identity” will now be considered specially protected categories for practically all parts of Virginia’s state code. Most worryingly, this applies to the Virginia Human Rights Act (VHRA), which will now apply to “all places of public accommodation,” including churches, schools, and religious ministries. Private businesses with at least five employees will also be expected to comply, meaning that employers with certain religious convictions will be in the law’s crosshairs.
And let there be no doubt that the supporters of this legislation aim to use it against religious institutions and individuals who do not endorse LGBTQ ideology. Virginia Delegate Marcus Simon during a February committee hearing on SB 868 declared: “I’ve actually looked at the [unlimited punitive damages] language… and I think it’s actually doing exactly what we intended for it to do. If you don’t want to be subject to unlimited punitive damages, don’t discriminate on the basis of sexual orientation or gender identity.” Cobb has argued that SB 868 “weaponizes the Attorney General and agitat[es] ‘LGBTQ’ activists” to target any who refuse to comply.
An April 13 article in the National Law Review noted that there are additional reasons for concern. First, lawsuits filed against those unwilling to comply will most likely either go to trial or be settled out of court. “While the majority of federal discrimination lawsuits end before trial with settlement or dismissal, most VHRA lawsuits will likely end up going to a jury trial (unless they settle first),” it explains. Second, there are currently no damage caps for such lawsuits. “The VHRA has no cap on damages… This will substantially inflate the potential value of employment discrimination lawsuits in Virginia if plaintiffs choose to assert their claims under the VHRA rather than under federal anti-discrimination laws.”
This is a sad state of affairs for my venerable Commonwealth, where my family has lived for four generations. It was in the Old Dominion that the Virginia Statute for Religious Freedom, authored by Thomas Jefferson, was enacted by the state legislature in 1786. The statute, which guaranteed freedom of religion to people of all religious faiths, was an influential precursor to the Establishment Clause and Free Exercise Clause of the First Amendment to the United States Constitution. It was one of only three accomplishments that Jefferson wanted on his epitaph.
We will undoubtedly witness SB 868–related attacks against religious institutions, including the state’s two Catholic dioceses, Arlington and Richmond. Consider how aggressively and maliciously the liberal mainstream media attacked Karen Pence, wife of Vice President Mike Pence, when they discovered she would be teaching art at a private evangelical school in Northern Virginia which prohibits gay, lesbian, and transgender students and employees. Indeed, these outlets were so eager for stories maligning this evangelical school—which many of my friends have attended or taught at—that they speedily capitalized on subsequent allegations that three boys at Immanuel Christian School had assaulted a black girl and cut her dreadlocks. She later admitted she had fabricated the entire incident. Now who’s really guilty of bigotry?
There are layers of philosophical problems that have led us to this dangerous situation. The first is an American culture that has so vigorously and uncritically embraced the tenets of the sexual revolution and postmodern relativism that it has no logical tool at its disposal to evaluate LGBTQ identity and behavior as anything other than just one of many valid lifestyle options. I may be a biological male attracted to women, and you, confusedly, are a biological male who identify as a woman, who is attracted to women—but, really, who am I to judge? Arguments grounded in classical philosophy, such as the objective and teleological nature of the body, fall on deaf ears.
The second problem is that Americans have come to embrace a very narrow conception of religious liberty, one that likens religious belief and practice to any other personal preference, such as a favorite ice cream flavor (mine’s butter pecan). Thus, when confronted with an LGBTQ person who alleges discrimination against him or herself by someone based on religious belief, many citizens assess the LGBTQ person’s claim to liberty trumps that made by the religious person. Isn’t sexual or gender identity more fundamental than one’s tenuous religious beliefs? (Except when it isn’t, and people change their sexual or gender identity. But we’ll leave that alone for now.)
Such a vision of religion’s role in the public square is far flimsier than what has been traditionally understood in the Western tradition, including even our own American political history. Earlier generations of Americans understood that religion has many essential roles in the civitas. Not only does it inculcate moral behavior (per Tocqueville and Kant), but it informs the morals of legislation binding on all citizens. Just ask abolitionists or the leaders of the Civil Rights Movement. The secular state also recognizes that religious institutions, motivated by their peculiar beliefs, often provide many services that benefit broader society—medical care, for instance, or education, or charitable work, or adoption services. Finally, a state that recognizes an absolute, transcendent reality appreciates that religious institutions orient citizens to the eternal. Libertarian, individualistic, and agnostic conceptions of religious liberty do not account for these public goods; hence, states and cities foolishly and shortsightedly attack Catholic adoption services.
Thankfully, The Family Foundation is preparing to defend Virginians who will be targeted by SB 868. “We are committed more than ever to doing what we can to become as an ‘umbrella’ to faith-minded Virginians to hopefully shield them from its effects,” says Cobb. This will include a live webinar for pastors, business owners, and other faith leaders. More broadly, we need campaigns to expose the disastrous effects of the sexual revolution and teach Americans a more robust understanding of religious liberty and the role of Christianity in the public square.
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