States debate new religious liberty protections

This time last year, Angela Smith was in the midst of logging roughly 3,200 miles and 80 hours of drive time between her home in Fredericksburg, Texas, and the State Capitol building in Austin. She spent those weekly trips dogging legislators, urging them to pass laws that would give Texans assurances they could operate their businesses and ministries according to their Christian faith—without fear of crushing legal challenges.

In spite of grassroots campaigning by Smith and other business owners, pastors, and First Amendment advocates, only one religious liberty bill survived the 84th session of the Texas Legislature. Overshadowing the 2015 session were vitriolic protests in Indiana over its Religious Liberty and Restoration Act (RFRA) and prophecies from big businesses of economic doom for any state that passed similar measures.

Within the last 24 months, state legislators have introduced almost 100 (and counting) “targeted laws”—legislation designed to give legal cover to business owners, religious schools, and ministries that affirm the sanctity of marriage between one man and one woman.

The contentious nationwide debate over targeted laws continued this week with a 39-hour filibuster in the Missouri State Senate to kill what opponents called “anti-gay” legislation. The filibuster failed and the Senate is poised to pass the bill today. But similar battles likely will play out in legislative chambers across the nation as 28 states try to pass laws offering the relief people like Smith say they need.

For Smith, who owns a bed and breakfast, such laws could mean the difference between maintaining the status quo or expanding her business to include weddings and receptions. If she expands, she could face possible litigation for declining to host a same-sex wedding.

“It’s all I have,” Smith said of her house and land. “I have to determine the level of risk. That risk level is too high.”

At present she sees no way forward with her business expansion without changes in the cultural climate, the laws—or both.

Texas, like 32 other states, has a RFRA law. But there’s a fundamental problem with the state and federal versions of the law.

“It’s basically a balancing act,” said Justin Butterfield, senior counsel with First Liberty Institute.

Although RFRA laws shore up First Amendment religious liberty and freedom of speech guarantees, their use as a defense often results in disparate court rulings. Butterfield said decisions in very similar cases can dramatically vary from court to court and judge to judge.

“How much religious liberty you have depends on where you are located,” he said.

Targeted laws are no guarantee against lawsuits but allow the state to declare what the lawsuit’s outcome should be, said Brantley Starr, Texas deputy attorney general, in testimony last month before the Texas Senate Committee on State Affairs. By crafting laws that address specific situations, litigation will move through the legal system faster than RFRA challenges, which often drag on for years.

Most targeted laws address recurring lawsuits stemming from the nationwide sanctioning of same-sex marriage by the U.S. Supreme Court and the proliferation of sexual orientation and gender identity (SOGI) laws. The redefining of marriage and gender roles have left business owners, religious schools, and ministries wondering what role their faith expression plays in the new legal paradigm.

Targeted laws pending before state legislatures would provide freedom of conscience exceptions in a variety of areas: staffing and housing of religious organizations; faith-based adoption and foster care agencies; religious school accreditation; religious tax accommodation; religious counseling protections; protections for small businesses and closely held corporations; solemnization of marriage by public officials; prohibited state discrimination; protection of students’ religious beliefs; and uniform SOGI non-discrimination laws.

If the filibuster against Missouri’s Senate Joint Resolution 39 is any indication, the proposed targeted laws—and a handful of RFRA laws—are sure to meet fierce opposition from those decrying them as thinly veiled attempts to sanction LGBT discrimination. Pushback is almost certain to come from LGBT advocates like the American Civil Liberties Union and the Human Rights Campaign, which argue freedom of conscience ends where SOGI and marriage laws begin.

Business interest groups have fought against the religious liberty laws ,claiming with little evidence that any state that passes such a measure will be labeled “bigoted” and suffer economically. Smith balks at the insinuation, saying her Christian faith informs every aspect of how she operates her business and should not be construed as merely an excuse to exclude service from certain people. The Texas Association of Business backed LGBT organizations’ efforts to derail religious liberty laws in the last Texas legislative session.

“The Texas Association of Business does not speak for me,” Smith declared in her testimony before the Texas Senate Committee on State Affairs.