The determination by some people to impose their personal faith dictates in commercial transactions is sadly nothing new.
Consider the use of “religious freedom” to legitimize anti-LGBT discrimination. In 2005 in Arlington, Virginia, when lesbian activist Lilli Vincenz tried to order VHS copies of films she made in 1968 and 1970, she hit the same wall under the term “core values.”
Tim Bono of Bono Film and Video refused to do the video transfer because, he said, it would violate his core values. The films, I should not have to mention, were not pornography. They were the 7-minute “Second-Largest Minority,” covering the gay Reminder Day Picket in front of Independence Hall in Philadelphia on July 4, 1968; and the 11.5-minute “Gay and Proud,” covering the first Christopher Street Liberation Day Parade in New York City on June 28, 1970.
Vincenz filed a complaint in May 2005 against Bono Film for violating Chapter 31 of the Arlington County Code prohibiting discrimination on the basis of sexual orientation. The Arlington Human Rights Commission held a public hearing in March 2006. Vincenz spoke eloquently of her films and her activism and of being wronged by Bono. Bono claimed the Commission could not force him to provide service in violation of his religious beliefs.
The Commission ruled against Bono in April 2006, requiring him to do the work or pay for it to be done elsewhere. Commission chair Tim Brogan said, “If you are a business providing services to the public, you can’t choose who you provide services to and who you are not going to provide services to…. That is illegal in Arlington.”
Mat Staver and Liberty Counsel filed suit against the Commission in May on behalf of Bono in Arlington Circuit Court, citing the Dillon Rule that limits the power of localities to what is specifically granted by state legislatures. There being no sexual orientation protections in Virginia’s Human Rights Act, Staver claimed the Arlington statute had overstepped the county’s authority.
The Commission reconsidered Lilli’s case in June 2006 and dismissed it by reframing the issue: it said Arlington may prohibit discrimination against individuals but may not “prohibit discrimination based on content of materials”—essentially reducing the county ordinance to a toothless expression of sentiment. Virginia voters compounded the injustice in November 2006 by passing the Marshall-Newman Amendment to the state constitution denying any legal status to same-sex couples or LGBT individuals.
The U.S. Supreme Court nullified anti-marriage-equality state constitutional provisions with Obergefell in 2015, but this did not make people like Staver go away. He is the same Mat Staver who defended Kim Davis in Kentucky for denying marriage licenses to same-sex couples; who became dean of Liberty University Law School; and who opposes congressional anti-lynching legislation because it includes sexual orientation.
With the U.S. Constitution mentioning states but not localities, progressive municipalities are in a weak position when going beyond state law. Passage of LGBT nondiscrimination bills in Virginia, such as John Bell’s HB 2067 (on public employment), Roxann Robinson’s HB 2677 (on fair housing), and Mark Levine’s HB 2421 (an “LGBTQ omnibus” bill), requires Democrats to win control of the House of Delegates. Two Senate bills passed with bipartisan support.
I relied for the Bono case history on McDermott Will & Emery, legal counsel to the Mattachine Society of Washington, D.C., of which I am secretary. Mattachine President Charles Francis says, “Thanks to McDermott’s research and analysis, we were able to uncover how Lilli Vincenz—a true pioneer of the LGBT rights movement—could be so discriminated against in our time, even in Arlington, Virginia.”
In a forthcoming article on the Bono case, Mattachine’s McDermott team writes, “While Arlington County has a non-discrimination ordinance in place to this day, and one that provides protection of LGBTQ citizens as well as others, future Plaintiffs have a clear path to challenge its authority if they take issue with providing services to LGBTQ customers.”
Francis adds, “This forgotten history—from ‘Gay and Proud’ at the first Christopher Street Liberation Day Parade in New York to Lilli Vincenz’s pioneering courage over the decades in Arlington—must stand as an inspiration for action this election day in Virginia.”
That’s November 5.
Richard J. Rosendall is a writer and activist. He can be reached at firstname.lastname@example.org.
Copyright © 2019 by Richard J. Rosendall. All rights reserved.