Lawmakers in Texas debating need for religious protection laws

Friday, March 12, 1999

Persuaded that the free exercise of religion needs further government protection, lawmakers in Texas are moving closer to enacting a bill modeled after a now-defunct federal law.

In 1993, Congress passed the Religious Freedom Restoration Act, which required all courts to apply a rigid constitutional test to government actions and laws that might incidentally infringe on a person or group's religious practices. The law was written by the Coalition for the Free Exercise of Religion, a large union of organized religions and civil rights groups. That coalition has since spearheaded efforts in a vast number of states to get similar legislation passed, arguing that the high court only invalidated the 1993 RFRA as applied to the states.

Last week the Texas Legislature continued to wrangle with religious protection. Before the Texas Senate Affairs Committee, law professors and public policy advocates debated the merits of the Texas Religious Freedom Restoration Act. After the public hearing the committee voted to send the act to the full Senate for consideration.

With the backing of Gov. George W. Bush, state Sen. David Sibley introduced the act in January. Like the federal version of 1993, the Texas measure states that “a government agency may not substantially burden a person's free exercise of religion” unless “the government agency demonstrates that the application of the burden to the person: is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that interest.”

Upon the act's introduction, Bush claimed that “court decisions have made it easier for government to encroach on people's rights, one small action at a time.” According to Bush, Sibley and the coalition, the U.S. Supreme Court in its 1990 ruling in Employment Div., v. Smith substantially degraded the protection of religious liberty. In that decision, the high court concluded that not all government actions and laws that happen to infringe on a person's religious liberty would automatically amount to a constitutional violation.

Marci Hamilton, a constitutional law scholar and professor at Yeshiva University in New York, testified before what she termed the “lopsided” Texas Senate hearing that the coalition's interpretation of the Smith ruling was highly disingenuous. “The Court has accurately portrayed its free exercise jurisprudence, which has never been particularly accommodating toward religious conduct,” Hamilton told the committee.

Hamilton said that the Texas Senate committee was allotting unlimited time to the vast array of proponents of the act and had capped opponents' statements at two minutes.

Nonetheless, Hamilton said she was able to list a few of the act's problems and submit written testimony to the committee.

“Like the federal RFRA, SB 138 violates the separation of powers,” Hamilton told the committee. “The legislature is mandating a standard of judicial review for every free exercise claim in the state. This is a task normally preserved to the courts. Indeed, one must wonder why the legislature needs to do so in this instance; the Texas state courts have not spoken definitively on the issue.”

Moreover, Hamilton argued that the Texas act could raise problems with the separation of church and state.

“This bill should be named the Texas Religious Supremacy Bill,” she told the committee. “This bill hands religion more power than it has ever had. As the United States Supreme Court has made abundantly clear in its jurisprudence, it has not applied the compelling- interest and least-restrictive means test across the board. By handing religion these litigation tools against every law in the state, SB 138 privileges religion well beyond the constitutional protections afforded religion. This is an unconstitutional establishment of religion.”

When the Supreme Court invalidated the federal act in 1997, Justice John Paul Stevens in a concurring opinion called the act “an establishment of religion.” Stevens concluded in Boerne v. Flores that “this governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment.”

Sibley, a Republican, echoed Coalition for the Free Exercise or Religion assertions that the act was necessary.

“Freedom of religion is a fundamental right,” Sibley said in a prepared statement. “Laws and regulations that impose a burden on that right should be put under strict scrutiny. Freedom to believe would be a hollow right without the freedom to act pursuant to that belief.”

A House version of the bill introduced by state Rep. Scott Hochberg is pending in the House's State Affairs Committee. A public hearing on that measure is set for March 15.