AUSTIN—During the 2015 Texas legislative session, all but one religious liberty bill died either in the House, Senate or in committee. Charged by Attorney General Ken Paxton with drafting new religious liberty laws for the 2017 legislative session, the Senate State Affairs committee heard testimony from two disparate groups who view such laws as either a shield or a sword.
Last spring, on the eve of the U.S. Supreme Court’s same-sex marriage ruling, the Texas legislature passed the Pastor Protection Act, shielding clergy from lawsuits if they refuse to perform same-sex marriages. Conservative Christians lamented that it was the lone religious freedom protection codified that session. Organizations that promote LGBT civil rights cheered the outcome. Each testified Wednesday, Feb. 17, before the committee chaired by Sen. Joan Huffman, R-Houston.
Criticized for failing to push religious liberty bills out of her committee last session, Huffman called the meeting at the behest of Paxton and Lt. Gov. Dan Patrick. In an October letter to Patrick, Paxton wrote, “Based on that model [the Pastor Protection Act], the legislature now has the opportunity to afford much more clarity and prevent needless litigation.”
Brantley Starr, Texas deputy attorney general for legal counsel, told senators they can create “targeted legislation,” proactively addressing anticipated areas of legal conflict. Such laws, he said, would not dodge legal challenges but would expedite the trial process.
Paxton listed 10 issues he expects the legislature to act upon: staffing and housing for religious organizations; faith-based adoption and foster care; accreditation for religious schools; tax accommodations for religious organizations; religious counseling; businesses that provide services for weddings; those who solemnize marriages; government employee speech; student speech protection; and uniformity of municipal ordinances.
Starr and Justin Butterfield, senior counsel for First Liberty Institute, said other states are currently drafting or have already passed legislation targeting the same areas of potential conflict. Starr said while the Texas Religious Freedom and Restoration Act (RFRA) provides general protections for citizens seeking relief from state-sponsored laws and regulations that violate “sincerely held religious beliefs,” litigation can take years. Challenges against Obamacare at the national level serve as an example.
And RFRA is often interpreted differently between judges resulting in varied rulings over the same issue but in different courts. Targeted laws cut to the nub of a conflict, defining for both parties what is or is not protected religious activity.
During the senate hearing, testimony was civil but revealed opposing viewpoints. Some argued Texas religious liberty law is a shield that protects people acting upon their “sincerely held religious beliefs,” while others contented it is a weapon that discriminates against and harms LGBT Texans.
Southern Baptists of Texas Convention representatives testifying before the committee included Cindy Asmussen, Texas Ethics and Religious Liberty Advisor; Steve Branson, pastor Village Parkway Baptist Church in San Antonio; and Steve Washburn, pastor FBC Pflugerville.
They relayed to the committee concerns from their constituents about the real or perceived hardships of living according to the Christian faith in public and at work. Asking for relief from the senators, Branson said, “These people are hurting.”
But targeted laws confer special privileges to people of faith, opposing attorneys and activists claimed, saying religious liberties do not “trump” civil laws or allow private individuals and public servants to opt out of complying with the laws because of their “sincerely held religious beliefs.” Acting upon one’s faith ends where civil law begins, they argued.
Summarizing the tension between the two ideologies, Starr referred to an 1878 case in which the U.S. Supreme Court first cited the Free Exercise Clause of the First Amendment. He said, “You can have your religious liberty, but you can’t use it to harm someone else.”
Rebecca Robertson, legal and policy director of the ACLU of Texas, said laws passed under the guise of protecting one person’s religious liberties harm others.
Passage of the federal and state RFRAs clarified—to a degree—the religious exemption clause of the First Amendment. Robertson said the ACLU of Texas routinely uses the law to defend clients in cases of religious discrimination. The Texas RFRA strikes a good balance between religious liberties and civil laws that promote the “common good,” she said, but it could not be used to opt out of compliance with the law.
Robertson failed to note last June the national ACLU rescinded its support for the federal RFRA. States, including Texas, had used that law as a model when drafting their own RFRA legislation. In response to a question from the TEXAN about the perceived conflict, Robertson said, “Unlike the federal version, the Texas law includes a provision that prevents people from using RFRA to discriminate.”
In July the ACLU endorsed a bill in the U.S. Congress, the Equality Act, which religious liberty advocates claim would undermine all RFRA laws. The measure essentially creates a new protected class of citizen based on sexual orientation and gender identity.
“I want to be very clear that all of these protections for religious liberty do not mean and have never meant that a law that conflicts with your own personal religious beliefs is somehow an infringement on your religious liberties,” Robertson told the committee.
But other witnesses disagreed.
“We can point to countless times in recent years in which the Catholic Church’s charitable mission as directed by Christ to serve the poor and vulnerable … have been coerced to either violate our beliefs or risk losing our ability to provide such care or services,” said Jeff Patterson, executive director of the Texas Catholic Conference of Bishops.
Rep. Scott Sanford, R-McKinney, executive pastor at Cottonwood Creek Baptist Church, was encouraged by the Senate chamber’s early action on the important issue. He was especially pleased to hear discussion of the need for protections for faith-based foster and adoption agencies, legislation Sanford unsuccessfully championed last session.
Although the discussion was overwhelmingly productive, Sanford said there were a couple of times he wanted to scream. One was when Bill Hammond, CEO of the Texas Association of Business, said that any religious liberty bill passed by the legislature would be bad for Texas businesses. Sanford said most people would not want to come to a state that did not assure them freedom of religion and conscience.
Sanford was equally frustrated by liberal witnesses who repeatedly characterized religious liberty laws as deceitfully crafted attacks on LGBT Texans instead of acknowledging that most of the laws are about marriage and how it is defined.