The "So What" on SOGI Laws

The passage of Sexual Orientation and Gender Identity (“SOGI”) laws are on the rise after the expiration of House Bill 142 (“HB 142”). HB 142 placed a temporary pause on local SOGI bills and was created in response to the Charlotte Bathroom Bill that resulted in House Bill 2 several years ago. With the moratorium no longer in effect, local governments are racing to put SOGI laws in effect. 

Already, counties such as Charlotte, Orange County, Boone, Carrboro, Chapel Hill, Durham, Greensboro, Hillsborough, and Winston-Salem have all enacted SOGI laws.  Many other counties in the state are discussing the passage of SOGI laws. These laws prohibit “discrimination” on the basis of sexual orientation and gender identity, and offer little to no exemptions for churches or religious institutions. Ultimately, proponents of SOGI laws would like to see a statewide law for North Carolina—the effects of which would be felt by numerous business owners, churches, schools, and families alike.  

SOGI laws are harmful for many reasons. They exist in the name of tolerance yet provide none for those who disagree for religious or moral reasons. It is ironic to coerce tolerance while simultaneously showing intolerance for those holding a minority viewpoint. Unfortunately, advocates for gender equality push tolerance and fight to legislate it, all while forgetting that it’s a two-way street.  

SOGI laws are a solution in search of a non-existent problem. A so-called solution that opens the door to expensive legal challenges. Public records requests in 12 states revealed an overwhelming majority (99.98%) of allegations of discrimination lacked merit. In Phoenix, Arizona, the city passed a SOGI law on the belief that discrimination based on sexual orientation was rampant in the area. During the first two years following its passage, only four complaints were filed—all of which were dismissed without merit.  

Colorado’s statewide SOGI law, the Colorado Anti-Discrimination Act (“CADA”), provides a striking example of the dangers that follow these types of laws. Just this summer, in 303 Creative LLC v. Elenis, the U.S. District Court considered whether a website creator and owner of 303 Creative, Ms. Smith,  should be forced to design a website celebrating the marriage of a same-sex couple.  

The court ultimately ruled that Ms. Smith held no first amendment right in denying her artistic skill to a same-sex couple. But this begs the question, what then, does the First Amendment protect? If not freedom from state-coerced speech, then what?

This ruling sends the message loud and clear that SOGI advocates do not care about tolerance or inclusivity for all. In fact, they only aim to promote the freedoms of a select few that tout a specific progressive narrative. All other viewpoints are shunned, quite literally so-- noncompliance with SOGI laws are met with steep fines, as well as a Class 3 misdemeanor charge.

Unfortunately, North Carolina Attorney General Josh Stein joined the effort to limit Ms. Smith’s First Amendment right in the 303 Creative case. Stein, along with 20 additional state attorney’s general, filed an amicus brief asking the U.S. Court of Appeals to uphold the ruling compelling Ms. Smith to design a website celebrating same-sex marriage. The amicus brief relied on “the ever-present threat that any business owner could refuse to serve them when they walk in the door—simply because of their sexual orientation, or their race, religion, or gender.” 

But note-- as the dissent in 303 Creative did-- that there is a difference between turning away a potential customer due to sexual orientation, versus turning away someone to avoid a moral conflict arising from an artistic portrayal. In fact, the dissent noted that both parties to the case agreed that Ms. Smith would serve anyone, regardless of sexual orientation. The issue only arose when Ms. Smith was asked to use her artistic skills to portray a message in violation of her religious beliefs.  

An artist’s ability to control her own work product is a freedom that is rightfully based on personal conviction, not animosity.

Thus, the ruling in 303 Creative sets a dangerous precedent that the government can force state-coerced speech. Just as CADA forced Ms. Smith to violate her faith on pain of sanction, SOGI would bring the same chilling reality to North Carolina residents.

Without help from our state legislative leaders, SOGI laws will continue to grow in prevalence. This will only open the door to expensive legal challenges, government-mandated tolerance, and coercion that stifles personal speech. The freedom to live peaceably and according to our beliefs is a fundamental right, resting in our human dignity and codified in the First Amendment. It should not be traded away. 

If you appreciate our hard work defending families, artists, and business owners against the threat these SOGIs pose in towns and counties across our state, would you consider making a needed donation of $10, $25, $50, $100?


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    published SOGI Laws in Blog 2021-08-31 08:09:02 -0400