72 Nat'l Law. Guild Rev. 109 (2015)
Masking Discrimination: How the Second Wave of RFRAS Can Weaken Protections for LGB Individuals

handle is hein.journals/guild72 and id is 115 raw text is: 




Laura Lane-Steele
                                         MASKING DISCRIMINATION:
                                      HOW THE SECOND WAVE OF
                                RFRAS CAN WEAKEN PROTECTIONS
                                              FOR LGB INDIVIDUALS
Introduction
  Mya is an accountant for a small publicly held corporation, Smallcorp in
Louisville, Kentucky. Though she is out as a lesbian in all other sectors in
her life, she remains closeted at work because of the pervasive religiosity
and anti-gay attitudes of Smallcorp's board, management, and most of her
supervisors. One day, her boss, Jack, sees Mya and her partner out on a date.
He approaches the two and asks Mya who her friend is, not wanting to lie, she
comes out to him. The next week, Jack fires her, explaining that Smallcorp
employs only individuals of a certain moral pedigree. Although Kentucky
has no statewide protections for lesbian, gay, or bisexual (LGB) workers,
Mya decides to sue Smallcorp for violating a Louisville anti-discrimination
ordinance that protects workers based on their sexual orientation.' Smallcorp
plans to defend against Mya's claim by asserting that the anti-discrimination
ordinance violates its religious freedom under Kentucky's Religious Freedom
Restoration Act (RFRA) and that it should be granted an exemption from the
ordinance.' Much like the federal RFRA, Kentucky's law prohibits govern-
ment action that substantially burdens a person's free exercise of religion
unless the government is protecting a compelling interest and the law is the
least restrictive means of protecting this interest.3
  This piece will examine the legal framework and likely outcome of a case
like this by exploring how state RFRAs, particularly those in Kansas and Ken-
tucky have the potential to substantially weaken anti-discrimination laws based
on sexual orientation. LGB rights groups and other progressive politicians
and organizations have protested the proposal and enactment of recent state
RFRAs because of this potential,4 but no article to date examines the doctrinal
framework of exactly how the RFRAs damage existing anti-discrimination
laws. Additionally, while there has been some litigation involving the clash
between religious freedom and gay rights, many of these cases were decided
under First Amendment jurisprudence, not the RFRAs.5 As this piece explains,
religious litigants have more protections under RFRAs than they do under First
Amendment and thus are more dangerous to anti-discrimination ordinances.
  This article concludes that these states' RFRAs will seriously decrease the
effectiveness any current or future law protecting LGB citizens from discrimi-


Laura Lane-Steele is a student at Harvard Law School.

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