“Religious Freedom” Bills in the States and RFRA on the Hill

“The worst kind of discrimination... is when the government is the discriminator.” - Colorado Rep. Patrick Neville (R-Castle Rock)

In the States

Many so-called “religious freedom” bills are picking up steam in the states, while five more have hit roadblocks. Here are some quick updates:

Texas: Last week, the Texas Association of Business expressed opposition to HJR 55 and SJR 10, resolutions that would amend the state’s Religious Freedom Restoration Act (RFRA) to remove its nondiscrimination language. In response, the sponsor of HJR 55, Rep. Jason Villalba, announced on Facebook that he will “reconsider entirely” the legislation. He explained: “I cannot and I will not support legislation, however well-intentioned, that would result in harming the job creators who are so very valuable to the Texas economy."  Like the Arkansas RFRA bill, this legislation has lost its support and momentum and is no longer expected to move.

Oklahoma: On Monday, the Oklahoma House discussed HB 1371, which would amend the state’s RFRA to allow anyone, including government employees, to refuse to participate or provide items or services in any marriage ceremony or celebration in the name of religion. Fortunately, the House did not consider this bill and it is now dead.

West Virginia, South Dakota, and Colorado: Thanks to the work of many civil rights allies, the RFRA bills in West Virginia (HB 2508SB 487, and HB 2830), and South Dakota (HB 1220) will not move forward. In Colorado, the House Committee on State, Veterans, and Military Affairs voted down its RFRA bill (HB 1171) because it would lead to state-sanctioned discrimination. Colorado Representative Patrick Neville (R-Castle Rock) said about the bill, “It’s incredibly unfortunate that we’ve had discrimination in this country all the way back to the Jim Crow laws. The worst kind of discrimination, though, is when the government is the discriminator.”

Utah: Late Wednesday night, the Utah Legislature passed SB 296, the “Antidiscrimination and Religious Freedom Amendments,” which was introduced last week and quickly passed through the Senate. The bill has many problems, yet it is supported by civil rights groups in the state. The bill provides limited protections for the LGBT community with expansive religious exemptions.  

Unfortunately, the Utah House yesterday also passed HB 322, a state RFRA that would undercut the compromises of SB 296 by lacking protections and sanctioning discrimination. The Senate could still pass HB 322 today, which is the last day of hte legislative session. 

Georgia: Last Thursday, the Georgia Senate passed its RFRA bill (SB 129) with a vote of 37 to 15. Before the bill was debated, the Georgia Senate leadership moved for the bill to be “engrossed,” so that no amendments could be entertained. Several Senators stood in opposition to the motion to engross the bill itself, but their efforts failed. These Senators expressed concerns that the bill applied to corporations and that the bill could be used to allow discrimination. They further pointed out that the bill is completely unnecessary, as supporters of the bill could not provide any religious liberty claims that are currently going unaddressed. The bill now moves to the House where its fate is uncertain. 

Indiana: The fight over the Indiana RFRA bill (SB 101) continues, even as faith leaders express opposition to the bill because it could allow discrimination. The Senate passed the bill on February 24. The House Judiciary Committee will hear the bill on Monday, March 16. If you live in Indiana, urge your Representative to oppose this bill.

Oklahoma: Another Oklahoma bill, HB 1125, is even more extreme. As a way to allow clerks to deny marriage licenses to same sex couples, it would actually abolish marriage licenses. Marriage would then be left up to clergy and not the state. It is likely this bill would result in the loss of federal rights and protections that come with marriage. The bill just passed the Oklahoma House on Tuesday.

Last Month’s Congressional Hearing on RFRA

On February 13, the U.S. House of Representatives Judiciary Committee Subcommittee on the Constitution and Civil Justice held an oversight hearing on the federal RFRA, as well as on the Religious Land Use and Institutionalized Persons Act (RLUIPA). Three of the four invited witnesses supported the outcome in Burwell v. Hobby Lobby Stores, Inc., which held that the closely-held corporations can use RFRA to deny their employees insurance coverage for contraception. Professor Nelson Tebbe from Brooklyn Law School, however, testified that after Hobby Lobby “RFRA itself is in need of a restoration.” He expressed concerns that the Supreme Court decision extended RFRA protections to for-profit corporations and that it allowed RFRA to be applied in a way that imposed “meaningful costs on identifiable third parties.”

AU submitted written testimony for the hearing. We explained that although we supported the passage of RFRA, we believe that Hobby Lobby was wrongly decided and does not reflect the intent of those who originally supported RFRA. Furthermore, we object to attempts to use RFRA as a justification for discrimination. Our testimony explained that AU supports reasonably tailored religious accommodations, but that “religion is not a trump card that supersedes all other interests or that can justify imposing significant burdens on others.”

Representatives John Conyers (D-MI), Steve Cohen (D-TN), and Jerry Nadler (D-NY) seemed to share AU’s concerns. Representative John Conyers (D-MI) expressed concerns about misuses of the federal RFRA and that the RFRA bills currently being debated in the states could be used to allow discrimination. He indicated support for the idea that RFRA should be limited to prevent harm to others. Representative Nadler, one of the sponsors of RLUIPA, said the authors of these bills “never intended third parties to be harmed.” He emphasized that the laws should be used as a shield to protect religious liberty, not a sword to harm others.

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