What "religious freedom" supporters aren't saying

Photo by Todd Wiseman

There’s a substantial problem with proposed “religious freedom” legislation in Texas.

Supporters of the proposed constitutional amendments, Senate Joint Resolution 10 and House Joint Resolution 125, insist that they would “strengthen Texas’ existing religious freedom statute with constitutional protection.” But there are substantial differences between existing law and the proposed constitutional language.

Texas’ Religious Freedom Restoration Act passed with broad bipartisan support in 1999. The law has done just what it was designed to do: preserve a careful balance between the rights of all Texans to practice their religion, and the state’s obligation to protect the health and safety of everyone.

The 1999 law passed with the support of a substantial coalition of more than 50 organizations ranging from the American Civil Liberties Union to the Christian Legal Society. More than 120 leaders from Texas’ diverse faith traditions voiced support for the legislation, which was prompted by a series of U.S. Supreme Court decisions and was calibrated to mirror the 1993 federal Religious Freedom Restoration Act.

Like most sponsors of substantial legislation directly affecting stakeholders, the 1999 bill’s author sought and achieved broad stakeholder support before he introduced the measure.

Maybe if current proponents had followed that tried-and-true approach, they wouldn’t be facing substantial opposition to their legislation. Perhaps they would’ve seen the substantial legal problems their legislation would create.

Current Texas law states that “government may not substantially burden” someone’s free exercise of religion. SJR 10 and HJR 125 intentionally omit that crucial word “substantial.”

In claims involving the Texas Religious Freedom Restoration Act, state courts evaluate whether there is a substantial burden on free exercise, whether the government has a compelling interest for that burden, and whether the government is achieving that interest with the least restrictive means.

Proponents are not talking about the how their proposed legislation would eliminate the substantial-burden requirement, and how that would put Texas in conflict with important U.S. Supreme Court precedent established in cases like Bob Jones University v. U.S.

Until 1970, the IRS granted 501(c)(3) tax-exempt status to private schools without regard to their racial admissions policies. Based on religious beliefs, Bob Jones University maintained a policy prohibiting interracial dating and marriage. The IRS revoked the university’s tax-exempt status and the school sued.

In ruling against the university, the Supreme Court reaffirmed that “not all burdens on religion are unconstitutional” and that the government’s “fundamental, overriding interest in eradicating racial discrimination in education … substantially outweighs whatever burden denial of tax benefits places on [Bob Jones University’s] exercise of their religious beliefs.”

Opponents point out that SJR 10 and HJR 125 would hurt the lesbian, gay, bisexual and transgender community. In fact, civil rights concerns extend far beyond same-sex marriage.

There is also more than civil rights at stake for the faith community in Texas. Removing the word “substantial” could have a substantial impact on faith-based ministries in Texas.

Faith and community-based organizations are interwoven into the social safety net of a state that values limited government. The well-settled policies requiring equal treatment of all faiths in awarding contracts — and the prohibitions on those faiths from using public tax dollars to proselytize — could be unsettled. That could disrupt faith-based investments in children’s homes, foster care, prison ministries and disaster relief. It could also have a chilling effect on agencies’ willingness to contract with faith-based groups.

By all accounts, Texas’ Religious Freedom Restoration Act has been a success. The current calibration protects often-unpopular Christian ministries like halfway houses and minority religious practices like a Native American child’s right to wear ceremonial long hair in contravention of a school dress code.

The current calibration did not protect criminal defendants at the YFZ Ranch in Eldorado or a Christian school looking to evade a city’s building codes requiring smoke detectors.

The authors of this session’s “religious freedom” legislation would do well to learn from their predecessors. If there is a substantial public policy problem to be solved, then the affected stakeholders should be assembled in a transparent, consensus-seeking process.

And if a substantial number of stakeholders say it ain’t broke, then don’t fix it.

Joshua Houston

General counsel for Texas Impact