Texas lawmakers approve religious-protection bill

Wednesday, June 2, 1999

A religious freedom protection bill has passed the Texas Legislature and awaits the signature of the governor, who supports it. Meanwhile, the Republican governor of South Carolina has signed a similar bill.

The Texas Religious Freedom Restoration Act tracks Congress' Religious Freedom Restoration of 1993, which has been invalidated the U.S. Supreme Court. Supported by Gov. George W. Bush and introduced by Republican state Sen. David Sibley, the act would require all state courts to use a strict legal standard when deciding whether a citizen's free exercise of religion has been violated by a state law or action intended to apply to everyone.

The act sent to Bush on May 31 states, in part, that government “may not substantially burden a person's free exercise of religion” unless the government can show that “the burden to the person” furthers “a compelling governmental interest and is the least restrictive means of furthering that interest.”

The “compelling interest/least restrictive means” test is the same one that Congress enacted in its 1993 bill. According to the Coalition for the Free Exercise of Religion, a nonprofit group of organized religions and civil rights organizations that drafted the law, the test was used by federal courts before the U.S. Supreme Court's 1990 decision in Employment Div., v. Smith. In Smiththe high court ruled that not all government actions and laws that happen to infringe on a person's religious liberty would automatically amount to a constitutional violation.

Unlike the federal version, the Texas bill states that civil rights laws, land-use laws and zoning laws would not automatically be trumped by a religious objector's reliance on the new law.

Moreover, although the bill states that prison-related laws are “presumed to be in furtherance of a compelling governmental interest and the least restrictive means of furthering that interest,” an inmate may rebut that presumption.

In addition, the bill contains an administrative hurdle for citizens to cross before suing the government. The bill states that before a lawsuit can be brought, a claimant must notify the government agency in writing of an alleged substantial violation of religious liberty. The government then “may remedy the substantial burden on the person's religious free exercise of religion,” the bill states.

The bill was introduced early in the legislative session with the governor's support. Upon its introduction, Bush blamed the Supreme Court and its ruling in Smith for making it “easier for government to encroach on people's religious rights one small action at a time.”

Sibley said the Texas bill was necessary to bolster government protection of religious liberties.

“Only in the most limited of circumstances should a government interfere with an individual's free exercise of religion,” Sibley said upon the bill's passage. “The freedom to worship is meaningless without the right to freely practice that religion.”

Marci Hamilton, a constitutional law scholar and professor at Benjamin N. Cardozo School of Law at Yeshiva University in New York, said that, like the congressional version, the Texas bill was riddled with constitutional problems.

“The whole bill is a mistake,” Hamilton said. “It will certainly raise state separation-of-powers concerns as well as separation of church and state issues. The bill is an attempt to solve particular burdens on religion with a blunderbuss approach.”

Hamilton, who argued against the bill before the Texas Senate, said the lawmakers should have conducted hearings to discover “precise burdens on religion,” and then “decide whether those burdens on particular religious conduct would be consistent with general welfare” laws.

In South Carolina, Democratic Gov. Jim Hodges signed the South Carolina Religious Freedom Act yesterday. (Editor's note: The story originally posted said he was a Republican.) The act is much more similar to RFRA of 1993 than the Texas law, and is considered less significant than Texas' act from a First Amendment standpoint because it is a less innovative measure.

The act's preamble states its intent is in part to override the Smith ruling. “The State may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability, unless the State demonstrates that application of the burden to the person is in furtherance of a compelling state interest and the least restrictive means of furthering that compelling state interest,” that act states.

The South Carolina bill, unlike the Texas version, does not exempt land-use or state and federal civil rights laws from its reach. Additionally, the law requires that prison-related laws “must be considered in furtherance of a compelling state interest if the facility demonstrates that the religious activity sought to be engaged by a prisoner is presumptively dangerous to the health or safety of that prisoner or poses a direct threat to the health, safety, or security of other prisoners, correctional staff, or the public.”

Hodges signed the bill at a Baptist church in Columbia, reported The State, a Columbia newspaper. Surrounded by area religious leaders, Hodges lauded the law as a protector of religious liberties.