While much of the country has been understandably distracted by the antics of President Donald J. Trump’s fledgling administration, state legislators have been busy introducing a host of bills that could negatively impact religious liberty.
Legislation has been proposed in nearly two dozen states that could allow businesses, individuals, organizations, schools or even government entities to use religion as an excuse to discriminate against the LGBTQ community, women and others.
Several bills could allow religion to infiltrate public school classrooms, either by opening the door to teaching creationism or by permitting students to be exposed to prayers. In addition, numerous states are considering bills to create or expand school voucher programs that provide tax dollars for private, predominantly religious schools.
And several states have introduced legislation aimed at preventing Sharia law from being enforced – an unnecessary move that only serves to foment Islamophobia.
In all, Americans United is tracking bills in more than half of the nation’s 50 states that could either infringe upon church-state separation or distort religious liberty to justify discrimination. (Situations can change, but this information was accurate as of mid-February.)
Bills Fostering Discrimination
The alphabet soup of RFRA and FADA legislation is back with another helping in 2017. The names – Religious Freedom Restoration Act and First Amendment Defense Act – sound like fine concepts on the surface, but the intent of these bills is usually much more ominous.
RFRA bills state that the government cannot substantially burden someone’s religious beliefs unless there is a compelling reason to do so. While the original intent of the federal version of RFRA was to protect religious freedom, especially for people of minority faiths, many of the recent state versions are something else entirely: They’re intended to give religious people a tool to trump non-discrimination and health care laws.
RFRAs have been proposed in five states – Colorado, Hawaii, Kentucky, Oklahoma and Washington – since the start of the year. Colorado’s bill was killed in late January when a state House committee voted it down on party lines for the third year in a row.
“Religious freedom is important to us, that’s why it’s in the First Amendment,” the Rev. Amanda Henderson, executive director of the Interfaith Alliance of Colorado, told The Daily Sentinel in Grand Junction, Colo. “A bill like this is simply an excuse, a justification for discrimination. We won’t stand for that in Colorado.”
The Courier-Journal in Louisville, Ky., reported leaders of the state’s majority Republican Party had indicated their RFRA bill, proposed by a Democrat, was unlikely to move forward this year.
In Oklahoma, the Rev. Lori Walke of Mayflower Congregational United Church of Christ in Oklahoma City spoke out against that state’s RFRA bill and other anti-LGBTQ legislation under consideration, according to the Tulsa World.
“Anti-LGBT legislation couched in phrases like ‘religious freedom’ and ‘right of conscience’ are a waste of time and money, not to mention deeply offensive to LGBT people made in the image of God as well as deeply offensive to the friends and family who love them,” Walke said.
Unlike RFRA, FADA hasn’t been passed at the federal level but is expected to be re-introduced in Congress with Trump’s support. The state spinoffs usually assert that a person, business, organization and sometimes even a government employee, can ignore laws that conflict with their beliefs about marriage and gender identity.
For instance, Washington state’s FADA proposes that no state action can be taken against someone who acts according to the beliefs that marriage is recognized only between a man and a woman, sex should be confined to marriage and gender identity is established at birth. This law would be applicable to corporations and organizations, in addition to individuals, although government employees and health care providers would not be covered by it.
FADAs have been proposed in five states in addition to Washington this year: Illinois, Minnesota, Oklahoma, Virginia and Wyoming.
The sponsors of Wyoming’s bill stated in late January they would withdraw it “to give Wyoming citizens more time for thorough consideration,” said Rep. Cheri Steinmetz, one of its three sponsors, according to Wyoming’s K2 Radio.
Two identical FADAs in Virginia also would prevent anyone – including state employees – from being required to officiate at a marriage that doesn’t conform to his or her beliefs.
One bill passed Virginia’s Senate in a party-line vote Feb. 7; the other passed in the House earlier in the month. However, Democratic Gov. Terry McAuliffe has pledged to veto the legislation as he did last year, according to the Richmond Times-Dispatch.
Legislation that doesn’t include full FADA language, but does allow clergy to decline to officiate the weddings of same-sex couples and others who do not conform to the clergy member’s religious beliefs, was introduced in Mississippi, Missouri and New Jersey. Mississippi’s bill died in a House committee in January.
Commonly referred to as Pastor Protection Acts, these bills are unnecessary because religious leaders already have protection under the First Amendment to determine which weddings they will perform. AU contends the bills are likely to stoke anti-LGBTQ rhetoric by sending the misleading message that clergy can be forced to sanctify marriages they don’t believe in.
And sometimes the bills include more just than religious leaders: Missouri’s proposal would include judges, allowing them to refuse to officiate if the “marriage is contrary to the(ir) religious beliefs or sincerely held moral convictions.”
A Texas bill would set up a complicated system for determining who would be responsible if someone in government has beliefs in conflict with the marriage. County clerks could pass the job to deputy clerks, who in turn could pass off the responsibility to judges or magistrates. If county commissioners determine there is an “insufficient” number of government officials willing to do the job, the commissioners can designate other county employees or contract with someone to certify marriage licenses.
Ken Upton, senior legal counsel for the LGBTQ civil rights group Lambda Legal in Dallas, told the Texas Observer the proposal could run afoul of the U.S. Supreme Court ruling in Obergefell v. Hodges, which legalized marriage for same-sex couples.
“The bottom line is the process can’t be different for same-sex couples,” Upton said. “The law can contemplate identifying a different employee within the clerk’s office to handle the application, but you can’t give gay people a list of ‘certifying officials’ and send them someplace else. That won’t work.”
Lawmakers in a few states are considering bills that factor religion into adoption laws. Legislation in Alabama, South Dakota and Oklahoma would allow child-placement agencies to deny services under circumstances that conflict with the agency’s religious beliefs.
A half-dozen bills are proposed that would allow religion to be cited as a reason for health-care workers to opt out of providing services like abortions, birth control and artificial insemination, or for therapists to decline to treat a patient whose goals or behaviors conflict with the health professional’s beliefs.
Missouri, South Carolina and Texas are mulling proposals that would force colleges to recognize and fund student organizations that bar membership based on religious beliefs. And while they typically don’t reference religion, variations of the bills that can force transgender people to use restrooms and other facilities that conform with their sex at birth are being considered in more than a half-dozen states.
At least eight states are considering legislation aimed at preventing Sharia law, an Islamic code of conduct, from being enforced. While many of the bills vaguely reference “foreign laws,” Islam is the clear target.
“As constituents have raised concerns with me, they are concerned about such things as Sharia law being used as a legal standard in our courts,” Indiana Republican Sen. Travis Holdman told the Indianapolis Star about the bill he introduced.
“We have freedom of religion here, but they don’t have the right to bring their Sharia law overreach on our constitutional laws,” Idaho Republican Rep. Eric Redman said of his bill, according to the Spokesman-Review in Spokane, Wash.
Legislation aimed at banning Sharia law is similar to the aforementioned Pastor Protection Acts in that the bills are redundant and can stoke inflammatory rhetoric.
In letters written to Arkansas and Montana legislators about proposed anti-Sharia bills that already have passed in one chamber of each state’s legislature, AU Legislative Director Maggie Garrett noted judges already are empowered to disregard foreign laws that conflict with the liberties established by the U.S. and state constitutions.
“Unfortunately, the real impetus for bills like (these) is linked to anti-Muslim sentiment,” Garrett wrote.
School Voucher Schemes
Legislators in more than a dozen states from California to New Jersey are pondering plans to create or expand school voucher programs that divert money to private schools that otherwise would flow into public schools.
“The most popular trend in the states continues to be legislation that would create an education savings account (ESA) plan,” wrote AU Federal Legislative Counsel Elise Helgesen Aguilar on AU’s “Wall of Separation” blog. “ESAs are simply vouchers by another name. They funnel public dollars into special bank accounts for students, from which they can withdraw money to use for various educational purposes, including tuition at private voucher schools.”