Proposed Texas Constitutional Amendments: Misusing Religion to Harm Others

by Dan Quinn

Beware of politicians who propose legislation to protect religious freedom. It’s very important to read the fine print.

Freedom of religion is one of our most fundamental rights as Americans. That’s why it is protected in the Texas and federal constitutions and why in 1999 a bipartisan majority in the Texas Legislature passed and a Republican governor signed the Religious Freedom Restoration Act. The Texas act bars government from “substantially” burdening “a person’s free exercise of religion” unless a law or regulation “is in the furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that interest.”

The law lays out guidelines for identifying how those exceptions apply and includes other carefully crafted language to help ensure that the law isn’t abused to, among other things, undermine civil rights protections or lead to unnecessary and expensive lawsuits that clog up the courts. And for 15 years this law has worked well to protect religious freedom for all Texans.

But that’s not good enough for two Texas legislators and the religious-right groups that support them.

State Sen. Donna Campbell, R-New Braunfels, and state Rep. Jason Villalba, R-Dallas, in this year’s legislative session have proposed separate amendments to the Texas Constitution that would sweep away the common-sense provisions in the carefully crafted 1999 law.

SJR 10 by Sen. Campbell and HJR 55 by Rep. Villalba are very similar. Both eliminate the “substantial burden” trigger. Instead, individuals who think that a law or regulation burdens their religious beliefs in any way at all could object. Measures that further a “compelling government interest” are excepted, but there are no guidelines for determining what that means. And nearly all other safeguards against abuse in the 1999 law are gone.

As a result, SJR 10 and HJR 55 would throw open the courthouse door to expensive lawsuits challenging any law, policy, regulation, government action or decision that an individual sees as conflicting with his or her religious beliefs. There’s no telling how costly such lawsuits could be. Moreover, the amendments would lead to a host of other problems and harms for Texans. Let’s walk through some of them.

The amendments would allow some people to ignore laws, regulations and other requirements that apply to everyone else. For example, some employees could argue they don’t have to follow company policies that are based on state laws or regulations when those policies conflict with their religious beliefs. A pharmacist who runs the only drugstore in town could cite his or her religious beliefs in refusing to fill a prescription for daily birth control pills. Similarly, a hospital could refuse to provide a procedure (or even inform patients about the option), such as a hysterectomy or even a blood transfusion, even if a patient’s health or life would be endangered without it.

These amendments would allow individuals to use religion to discriminate and harm others. Religious-righters have already argued that their beliefs should give them the right to ignore any discrimination protections for LGBT people. As bad as that is, many other protections would also be endangered.

For example, the broad language in the proposed amendments could shield abusers. A man could claim that laws against domestic and sexual violence and child abuse don’t apply to him because his religion teaches that a husband has the right to discipline his wife and children as he sees fit.

Moreover, a manager or business owner could point to his religious beliefs about women working outside the home to fire or refuse to hire female employees. Followers of anti-Semitic and racist religious sects might be legally protected if they unjustly fire Jews or African Americans and other people of color. An apartment manager whose religious beliefs dictate that a man should be the head of a household or that pregnancy outside marriage is a sin could refuse to rent – or even evict – an unmarried mother.

In addition, either of these amendments would give Texas a reputation for being judgmental and unwelcoming, creating an environment that is hostile to business and commerce in the state. Consider what has happened when other states consider such sweeping measures. Economists estimated that similar legislation in Arizona – eventually vetoed by a Republican governor – would cost $140 million in lost business from meetings and conventions over three years.

The same thing would happen in Texas. Either of these amendments could depress tourism and travel to the state. Texas could lose out on the opportunity to host major events like conventions and even the Super Bowl.

Moreover, companies could decide that moving to or expanding in this state would risk alienating potential customers and investors, make it harder to compete for the best job applicants, and open the door to expensive lawsuits. And existing businesses in Texas would face the legal nightmare of deciding how to enforce laws barring discrimination.

In short, the broad language in the proposed constitutional amendments would allow people to use religion as a weapon to harm others, undermine the fundamental principle that laws should apply to everyone, and hurt the Texas economy. And that would all happen because religious-righters think our national and state constitutions and existing laws protecting religious freedom aren’t good enough.