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House panel rejects what some called an Amendment 2 repeat

Author: Marianne Goodland - March 28, 2018 - Updated: March 29, 2018

sincerely held religious beliefsCharlie Craig and David Mullins, plaintiffs in the Masterpiece Cakeshop case, testify on House Bill 1206. Also shown: attorney Sara Neel of ACLU and bill sponsor Rep. Stephen Humphrey. Photo by Rep. Jovan Melton

DENVER — A bill many feared would take Colorado back to its 1992 reputation as the “hate state” failed in a state House of Representatives committee Tuesday night on a party-line vote.

House Bill 1206 would have allowed those with “sincerely-held religious beliefs” to discriminate against LGBTQ individuals, according to witnesses who testified on the measure.

The House Judiciary Committee’s five-hour hearing on the bill, dubbed the “Live and Let Live Act,” featured testimony from the couple at the center of the Masterpiece Cakeshop case currently in front of the U.S. Supreme Court. It ended with a 7-4 vote against the measure.

The bill was sponsored by Republican state Rep. Stephen Humphrey of Severance, who has tried for the last four years to pass similar measures related to the free exercise of religion.

House Bill 1206 was directly tied to the cake-shop case and what happened to the shop and owner Jack Phillips. The bill stated that a cake baker “who willingly served customers from every walk of life” was forced to shut down part of his business, forced to undergo government “re-education” and file compliance reports when he declined to create a wedding cake that would have celebrated a marriage his conscience rejects.

The bill would have barred the state government from taking action against religious organizations or persons with “sincerely held religious beliefs or moral convictions.” That was defined in the bill as “protected” beliefs “regarding the sex of two individuals who may enter into a marriage.”

Under the measure, protected religious beliefs would have allowed a person or organization to withhold services related to marriage or goods or services related to that, including housing, employment, adoption or foster services, health care, even gyms.

It also would have applied to speech in the workplace and created a way for county clerks or other authorized individuals to withhold marriage licenses to same-sex couples, despite a 2015 U.S. Supreme Court ruling that legalized same-sex marriage.

Sponsor Humphrey, a military veteran and former police officer, claimed his bill would create a way for protected classes — whether religious or LGBTQ — to coexist.

The hearing showed the fear on both sides of the issue: Fear from same-sex couples and individuals about what passage of the bill would do to their rights in housing, employment and health care, and fear from religiously-affiliated organizations that believe the current law will force their businesses to close.

Democratic state Rep. Leslie Herod of Denver was among many who said Humphrey’s bill would return Colorado to 1992 when Amendment 2 passed and Colorado was then tagged as the “hate state.”

The amendment — which barred recognition of gays and lesbians as a protected class — cost the state meetings from 60 companies and organizations, with an estimated economic loss of at least $40 million. The U.S. Supreme Court overturned the amendment as unconstitutional in 1996.

Committee Democrats also pointed out that religion has been used throughout history as justification for other forms of discrimination, including banning interracial marriage, which has now been legal for more than four decades. They also raised the issue of how to define when someone holds a “sincerely held religious belief” and how the courts would make that call.

“This is a conscience bill,” Humphrey said later. “Folks of faith are concerned for their livelihoods and way of life. … Tolerance is a two-way street.”

Among those testifying in favor of the bill was Matt Sharp, of the Alliance Defending Freedom, which represents Phillips, the cake-shop baker. “This bill does not discriminate,” Sharp told the committee.

A half-dozen people affiliated with Christian-based adoption agencies also spoke in support, warning that the 16 faith-based agencies could close without the bill’s protection, putting more than 300 children at risk for not finding homes.

That testimony resulted in a sharp exchange between Beth Woods of Hope’s Promise of Castle Rock and Herod, who asked Woods if she was aware that lesbians could also be Christians. Children are best served by parents of the opposite sex, Woods replied, and that a same-sex couple who came to her facility would be referred elsewhere.

Another sharp exchange took place between Jenna Ellis, an attorney for Colorado Family Action, and several committee members after she said the rule of law is embedded in the U.S. Constitution, not the U.S. Supreme Court. The court’s decision to legalize same-sex marriage is the very definition of judicial activism, she added.

“Marriage equality is the law of the land. That’s a fact,” Herod said. “I disagree,” Ellis replied.

Gov. John Hickenlooper’s chief legal counsel, Jacki Cooper Melmed, in a rare appearance in a legislative committee, led off testimony against the bill. Cooper Melmed said she feared the economic consequences for Colorado should the bill succeed, such as what happened to Indiana under then-Gov. Mike Pence and in North Carolina when similar measures passed.

Former Colorado Supreme Court Justice Jean Dubofsky, who sued the state in the Amendment 2 case, pointed to similarities between Amendment 2 and House Bill 1206.

“This bill has the same breadth” as Amendment 2, she told the committee, and warned that what happened to Colorado in 1992 could happen again. “Freedom of religion does not always prevail.”

The hearing also brought David Mullins and Charlie Craig to the Capitol, for their first appearance in a legislative committee Tuesday. It was the same-sex couple’s complaint against Phillips after he refused to make their wedding cake that led to House Bill 2016.

Mullins told the committee he and Craig were humiliated by their treatment at the bakery. Mullins told Colorado Politics after he testified that “freedom of religion is essential in our country, but it doesn’t mean you can practice your faith in a way that demeans others or excludes them from public life.”

“We’re just asking to be treated like anyone else,” Craig added. “This bill would do the exact opposite.”

The word “hate” came up a lot during the five-hour hearing, and that eventually led Republican Rep. Yeulin Willett of Grand Junction to ask that people not ascribe motives of hate to the bill sponsor. “Don’t we need to back off a little and look at both sides of the equation?” Willett asked.

Two pastors who were testifying at the time responded that LGBTQ people feel hatred on a daily basis, including from bills like House Bill 1206.

“This bill gives Christians a bad name,” Herod said at the end of the hearing.

“This bill was (one of) the most mean-spirited anti-LGBTQ bills to be introduced in the Colorado legislature in years,” Daniel Ramos of One Colorado, an organization that advocates for LGBTQ issues, said after the hearing.

“Nobody should be turned away from a business, denied service, fired from their job, or evicted from their home simply because of who they are. Had this bill passed out of committee and made it to the governor’s desk, that kind of license to discriminate is exactly what would have been legalized in Colorado.”

Marianne Goodland

Marianne Goodland

Marianne Goodland is the chief legislative reporter for Colorado Politics. She's covered the Colorado General Assembly for 20 years, starting off in 1998 with the Silver & Gold Record, the editorially-independent newspaper at CU that was shuttered in 2009. She also writes for six rural newspapers in northeastern Colorado. Marianne specializes in rural issues, agriculture, water and, during election season, campaign finance. In her free time (ha!) she lives in Lakewood with her husband, Jeff; a cantankerous Shih-Tzu named Sophie; and Gunther the cat. She is also an award-winning professional harpist.