by Paul Bowers
South Carolina has a law that is very similar to Indiana's controversial new Religious Freedom Restoration Act, which allows business owners to refuse service to LGBT people based on their religious beliefs. The S.C. Religious Freedom Act passed in 1999 and hasn't faced a lot of opposition in the Statehouse. Until now.
Rep. Todd Rutherford (D-Richland), who voted for the S.C. Religious Freedom Act in 1999, says that when the state House returns from its recess on April 14, he plans to introduce a bill prohibiting businesses from discriminating against people based on sexual orientation.
"This is about not allowing discrimination in South Carolina against anyone, and the group that is unprotected at this point is the LGBT community," Rutherford says.
South Carolina is one of 20 states that has passed some form of Religious Freedom Act since President Bill Clinton signed the federal Religious Freedom Restoration Act into law in 1993. Many of the state acts contain language similar to the federal law, which states that the government "shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability."
The state and federal laws have been used to defend a broad range of religious activity. For example, in 2008, a Texas public school tried to force a Native American kindergarten student to cut his hair in accordance with school grooming policies, but his parents took the issue to federal court and were able to successfully defend keeping his long hair as a religious practice.
However, not all state Religious Freedom Acts were created equal. Like Indiana's act, South Carolina's includes language that broadens the definition of "person" beyond an individual citizen. Under the Palmetto State law, "'Person' includes, but is not limited to, an individual, corporation, firm, partnership, association, or organization." According to an analysis of state laws by NPR, "just South Carolina and Texas have similar variations to Indiana's, and neither seems to go quite as far." (Indiana's law goes further by specifically mentioning churches in the definition of "person" and stating that people who believe their religious freedom has been burdened can file a lawsuit "regardless of whether the state or any other governmental entity is a party to the proceeding.")
Rutherford compares the debate over LGBT rights to the Civil Rights debate over the rights of African Americans. A florist is obligated to provide service at a same-sex wedding, he says, "no different than the people that were operating lunch counters back in the '60s had an obligation to serve African Americans."
The S.C. Religious Freedom Act passed easily in 1999, with the state House voting 90-2 in favor of it. Some of the bill's sponsors are still in office today, including Rep. Chip Campsen (R-Charleston), Rep. Gary Simrill (R-York), Rep. Gilda Cobb-Hunter (D-Orangeburg) — and Rutherford himself.
At the time of the 1999 vote, Rutherford says that Campsen — one of the original sponsors — did not present it to him as being about denial of service to gays and lesbians.
"Campsen mentioned it [was about] Indians and peyote and not wanting the government to come after them, that that's what this bill was talking about," Rutherford says.
Another bill, pre-filed by Spartanburg Republican Sen. Lee Bright in late 2014, would also expand the scope of the S.C. Religious Freedom Act. Whereas the original act only prevents state government from burdening a person's exercise of religion, Bright's bill would extend protections down to the level of local governments by adding the following language:
"No locality, municipality, county, or other instrumentality of this State may restrict the free exercise of speech or religion during the course of any of its proceedings in violation of the First Amendment of the United States or Article I, Section 2 of the Constitution of South Carolina."
Bright's bill has been in the Senate Judiciary Committee since Jan. 13.