Virginia AG: No, you don't have the 'freedom' to discriminate against gay couples

Virginia Attorney General Mark Herring on Tuesday pushed back against a lawsuit that aims to undermine the state’s nondiscrimination protections for LGBTQ people.

“No one should ever have to fear being discriminated against because of who they love,” Herring wrote in a Facebook post.

Herring was referring to a lawsuit targeting the Virginia Values Act, which Gov. Ralph Northam signed in April and which protects LGBTQ people from discrimination “on the basis of sexual orientation and gender identity in housing, public and private employment, public accommodations, and access to credit.”

Herring asked a court to dismiss the lawsuit on Monday.

In a statement to CBS19 that same day, he reiterated, “We are all Virginians and we all deserve to live in this Commonwealth without the fear of being discriminated against because of what we look like, who we love, where we come from, or how we worship. I will do everything in my power to defend the Virginia Values Act and make sure that it continues to protect Virginia’s LGBTQ community.”

The lawsuit was brought by photographer Robert Updegrove. In his complaint, filed in September, Updegrove claimed he was being asked to “compromise his faith” or “close up shop” because of the nondiscrimination protections.

He also claimed he was being forced to “create photography promoting same-sex marriage.”

“Bob filed this lawsuit to restore his First Amendment right,” the complaint said.

Updegrove is being represented by the Alliance Defending Freedom, which the Southern Poverty Law Center has described as an anti-LGBTQ hate group.

Attorneys and writers for the Alliance Defending Freedom have made numerous transphobic and homophobic statements over the years, including describing support for marriage equality as a “deification of of deviant sexual practices.”

The group also recently filed a separate lawsuit in another court that claims a nondenominational church would be asked to violate its beliefs by hiring LGBTQ people.

Herring said in his motion to dismiss this week that the lawsuit “fails to allege infringement on free speech or freedom of religion.”

Herring noted that LGBTQ people continue to face discrimination and that at least 68% of Virginians widely support nondiscrimination protections for LGBTQ people.

The Supreme Court recently heard similar arguments in the case of Fulton v. City of Philadelphia.

Philadelphia had stopped sending referrals to Catholic Social Services, a foster care agency, because of its discrimination against LGBTQ families. But Catholic Social Services fought the decision all the way to the Supreme Court, claiming that, for religious reasons, it was unable to certify same-sex couples as foster parents.

LGBTQ groups are concerned that if the foster agency prevails, the outcome would be incredibly harmful to LGBTQ people seeking all kinds of social services.

“A ruling in favor of CSS would grant religiously affiliated foster agencies a constitutional right to receive taxpayer funding to provide public child welfare services while ignoring anti-discrimination laws by refusing to place children with qualified foster care parents,” Lindsay Mahowald and Carolina Medina from the Center for American Progress’s LGBTQ project, wrote last month. “Such a ruling would not only affect same-sex couples, but could also be used to discriminate against religious minorities, unmarried couples, and couples where one spouse was previously divorced.”

The Supreme Court currently has a conservative majority, which is not favorable to Fulton and similar cases. Justice Amy Coney Barrett has a record of opposing LGBTQ rights and connections to Alliance Defending Freedom and Justice Samuel Alito recently complained that people weren’t allowed to express their homophobia publicly without criticism.

Conservative lawyers argue that there isn’t real harm in refusing services to LGBTQ people because they say they can find alternatives. However, the Center for American Progress argued in 2017 that there was indeed significant cost to LGBTQ people.

“In reality, service refusals act like a one-two punch,” Caitlin Rooney and Laura Durso wrote. “The discrimination itself causes harm that negatively affects both psychological and physical health and well-being, as shown by research and lived experiences of LGBTQ people and their families. Then, compounding that harm, the refusal can make it harder or impossible for LGBTQ people to access services at all, denying them full participation in the public square.”

Published with permission of The American Independent Foundation.