Protecting Religious Freedom in the States

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From Arizona to North Carolina: A State Religious Freedom Law Overview

Signs of religious freedom taking a backseat to what is euphemistically called "sexual liberty" were growing strong long before the 2015 U.S. Supreme Court ruling on marriage. People of faith attempting to earn a living by running their own business, based on deeply held religious beliefs, found themselves in the crosshairs of hostile state governments intent on forcing them to participate in same-sex ceremonies with their cameras, floral and baking skills, or providing a place for the ceremony. Starting in 2014, state elected officials, responding to these ever-increasing threats to religious freedom and conscience, felt the wrath of three powerful groups working in unison to block passage of laws to protect people of faith: media, business and LBGT groups.

Deceptive Opposition

Arizona was the first.

In 2014, the Arizona Legislature introduced some minor amendments to the state's existing Religious Freedom Restoration Act (RFRA)* to bring it more in line with the federal law and the laws in 19 other states, where such policies operate with no proven adverse effect. To everyone's surprise, combined opposition from LGBT organizations, big media and big business pounded the state, painting the updated RFRA as a "license to discriminate." Often one-sided, anti-RFRA media reports combined with threats of economic boycotts from major corporations misrepresented the bill, denigrating religious freedom as a form of "bigotry" and "hate." In the face of such unprecedented opposition and public misperception of the law, Arizona's governor vetoed the bill.

In 2015, the attempt by Indiana lawmakers to bolster its religious freedom protections by adding a RFRA to state law met the same strategic attack. Officials ultimately watered down its RFRA so much that it took away rights from small business owners who might object to forced participation in a same-sex marriage ceremony.

In 2016, the same coordinated attacks have surfaced against state attempts to protect religious freedom, with mixed results in Georgia, North Carolina, Mississippi and other states.

A New Legislative Era

We are entering a new era in the struggle to maintain religious freedom as a founding principle. The legislative battles Arizona and others have experienced are instructive as to what states are doing to shore up the damage (hopefully not irreparable) done by the proponents of sexual license, same-sex marriage and gender identity confusion.

The following is a short timeline of major state religious freedom bills over the last three years, starting with the proposed Arizona RFRA amendment in 2014 and continuing through 2016's experiences in Georgia, North Carolina, Mississippi and other states.

2014

ARIZONA (February): Gov. Jan Brewer vetoed a bill containing amendments to the state's existing RFRA. Following the Arizona uproar, religious freedom bills were either watered down or pulled from consideration in Mississippi, Georgia, Ohio and Oklahoma.

MISSISSIPPI (April): Governor Phil Bryant signed a RFRA into law. Because of the Arizona experience, however, a clause was added to the law at the request of business interests in the state, making it inapplicable to employment discrimination lawsuits.

2015

UTAH (March): Gov. Gary Herbert signed into law a bill that allows employees in county clerks' offices to refuse to perform same-sex marriages. This bill was part of a "compromise," which added sexual orientation to the list of protected classes in housing and employment non-discrimination laws. Public accommodations laws, which affect businesses who deal with the public, were not addressed in the "compromise."

INDIANA (March/April): Gov. Mike Pence signed a RFRA bill into law. A week later, following a firestorm of negative media and threats of economic boycotts similar to the one orchestrated in Arizona, he also signed a so-called "fix" to the bill. This "fix" removed religious protection for some private business owners in the areas of employment, sales of goods and services, and housing.

ARKANSAS (April): Gov. Asa Hutchinson signed a RFRA into law following opposition from business and LGBT groups. The final bill closely mirrored the 1993 federal RFRA.

Gov. Hutchinson also signed the "Intrastate Commerce Improvement Act," which, like a Tennessee law passed in 2011, forbids local governments from creating their own "non-discrimination" laws that vary from state law protections. This protects citizens and businesses from the effect of sexual orientation/gender identity ordinances such as the Houston ordinance defeated by Houstonians in a public referendum in 2015. (See more here and here )

OKLAHOMA (May): Gov. Mary Fallin signed into law a measure that says no licensed, ordained, or authorized official of a religious organization can be required to solemnize or recognize a marriage that violates that official's conscience or religious belief.

NORTH CAROLINA (June): The state Legislature overrode Gov. Pat McCrory's veto to pass a new law enabling magistrates and registers of deeds to opt-out of performing marriage ceremonies or issuing marriage licenses based on a religious objection.

MICHIGAN (June): Gov. Rick Snyder signed into law a series of bills that protect faith-based adoption agencies from being forced by the state to place children with same-sex couples.

TEXAS (June): Gov. Greg Abbott signed the "Pastor Protection Act" into law, which allows clergy to refuse to perform marriages that violate their beliefs, and it protects religious organizations that do not desire to provide services, accommodations, facilities, goods or privileges for a purpose related to the solemnization, formation, or celebration of any marriage if it violates the organization's beliefs.

OTHER: In 2015, RFRAs were introduced but failed in the legislatures of the following states: Colorado, Georgia, Hawaii, Michigan, Maine, Montana, North Carolina, Nevada, South Dakota, Texas (a const. amendment), Utah, West Virginia and Wyoming.

2016

WEST VIRGINIA (March 2): The state House passed, but the state Senate defeated a RFRA. A similar bill was also defeated in 2015.

FLORIDA (March 10): Gov. Rick Scott signed into law the "Pastors Protection Act," which protects clergy and religious organizations from having to participate in solemnizing a marriage that violates their beliefs; nor do they have to provide services, accommodations, facilities, goods for one.

KANSAS (March 22): Gov. Sam Brownback signed a "campus freedom bill" that forbids public colleges and universities in that state from compelling student religious organizations to accept members or leaders who don't share the group's core beliefs.

NORTH CAROLINA (March 23): Despite media hype to the contrary, the bill Gov. Pat McCrory signed into law made very few changes in state law. The bill, HB 2, prevents cities and towns from granting special rights to classes of people, including sexual orientation and gender identity, beyond those already identified in statewide non-discrimination laws. It standardizes public restroom and changing room access in government-owned facilities based on biological sex, yet it allows private business owners to decide their own bathroom and changing room policies. HB2 is also a religious freedom law, because it supersedes local ordinances that have been used in other states to punish Christian business owners for refusing on conscience grounds to, for example, provide goods or services for same-sex ceremonies.

This bill was passed in an emergency session of the Legislature called after the city of Charlotte approved a SOGI (Sexual Orientation/Gender Identity) ordinance, such as the controversial one in Houston, TX in 2015. Tennessee and Arkansas have passed laws similar to North Carolina's. However, North Carolina has been targeted by more than 150 major corporations, negative media reports and LGBT activists and their allies, in an attempt to pressure the legislature to overturn the law.

GEORGIA (March 28): Gov. Nathan Deal vetoed a bill containing multiple types of religious freedom provisions. It protected clergy and religious organizations from being forced to participate in objectionable events, such as same-sex wedding ceremonies. It also included standard RFRA language. The bill, which was modified and watered down over time in an attempt to meet the governor's concerns, was vetoed anyway after negative media reports and corporate pressure.

VIRGINIA (March 30) Gov. Terry McAuliffe vetoed a bill protecting clergy, religious and religiously affiliated organizations, their employees and volunteers from being required to participate in the solemnization of any marriage, as well as prevent government retaliation for not participating. The governor called this First Amendment protection bill "nothing more than an attempt to stigmatize."

MISSISSIPPI (April 5): Gov. Phil Bryant signed a bill offering broad protections to clergy, religious organizations, wedding vendors, adoption agencies, marriage clerks and other government employees based on their belief that marriage is between one man and one woman, or that sexual relations are properly reserved to such a marriage, or that the status of "male" or "female" are determined by anatomy and genetics at the time of birth.

KENTUCKY (April 13): Gov. Matt Bevin signed into law a measure that modifies the state's marriage license forms to remove the name of the county clerk. This stems from the controversy surrounding Rowan County Clerk Kim Davis, who was jailed by a federal judge for five days in 2015, for denying marriage licenses to same-sex couples, based on her religious conscience.

LOUISIANA (April 13): Newly elected Gov. John Bel Edwards rescinded an Executive Order issued by former Gov. Bobby Jindal, which protected religious freedom from government discrimination and retaliation. Gov. Edwards also instituted special protections for state employees who identify as LGBT.

Looking Ahead

The foundation of religious liberty in this country has been shaken by a new and radical type of anti-democratic activism by a three-part alliance:

  1. LGBT organizations and their political allies;
  2. Large corporations sympathetic to LGBT demands; and
  3. Some media who are hostile to traditional values.

In the face of potential economic boycotts and bad press, state legislatures in the last few years have found that targeted conscience laws, such as protection for clergy and religious organizations, are more successful than RFRAs, although their impact is smaller. As this recent history shows, however, states have not given up on preserving our religious freedom. For that, we can be encouraged.