By General Counsel K. Hollyn Hollman
As I am sure you have noticed, state legislative efforts purporting to protect religious liberty have increased dramatically, partly in response to legal recognition of marriage for same-sex couples. At the same time, legislation involving LGBT protections beyond marriage, such as in employment, housing or public accommodations, has also sparked intense national interest in state legislatures.
Unfortunately, in our rapid-pace, sound-bite culture, the media oversimplifies important stories. Our partisan, cultural, geographical and religious differences are then exploited and amplified in social media that feeds the 24-hour news beast without concern for clarity. Religious liberty, a fundamental and defining value of American law and society, is too important to be treated this way.
The articulated threats and proposed solutions in the states vary widely in seriousness, scope and even their relationship to religious liberty.
Consider H.B. 2 in North Carolina. This highly controversial measure regulates public bathrooms and local wages, and it prohibits municipalities from providing LGBT protections. It has nothing to do with religious liberty, but it has been incorrectly lumped into discussions about religious exemptions in an attempt to show that religious liberty bills are “discriminatory.”
Other states have grappled with religious liberty bills this legislative season. Within ten days of one another, governors in Georgia and Virginia vetoed religious liberty bills, while the Mississippi governor signed one into law. These three were vastly different.
Let’s take a deep breath and step back to reaffirm our religious freedom foundations. How we protect religious freedom is as important as why we protect it. There are differences in state religious liberty proposals and the legal and political contexts in which they arise. Religious exemptions may or may not be needed, but they are not inherently suspicious or harmful to others. They are instead an important part of religious freedom in America. Article II of the Constitution, in fact, recognizes this truth. It gives the president the option to swear or affirm the presidential oath of office, a provision that stems from conscientious objections of Quakers.
The Free Exercise Clause protects religious liberty by sometimes requiring exemptions. General legal standards like the Religious Freedom Restoration Act, which has been enacted by 21 states and the federal government, protect religious freedom through a balancing test that weighs substantial burdens on religious exercise against compelling interests of the government, without regard to any particular law or religious practice. This standard, championed by the BJC, has long enjoyed bipartisan support with minimal controversy. Of course, as we’ve seen recently, not all bills with the name “RFRA” have that same balanced standard.
In addition, specific religious liberty exemptions exist throughout federal, state and local laws to address particular needs, such as those of houses of worship. Exemptions are common to promote religious liberty, and they should be carefully crafted to minimize harm to other important interests. As recent controversies demonstrate, however, conflicts between religious beliefs and LGBT rights are not easily addressed. When legislative efforts fail to take into account potential harm to others, the fallout is predictable.
Not all efforts to protect religious liberty are futile or misguided. Here’s how you can fairly evaluate religious liberty needs and understand proposed legislation:
1) Know the state’s legal landscape.
-Does the state constitution provide adequate protection for religious freedom?
-Does the state have other religious liberty laws, such as RFRA or specific religious exemptions?
2) Identify the purpose of the proposal.
-Is the bill solving an identifiable problem in the state or proposing a solution to a problem that does not exist?
-Why is the bill needed at this time?
-What religious exercise is being protected?
3) Consider the potential outcome.
-How could it affect those outside the group seeking protection for religious exercise?
-Are there legal protections in place to mitigate possible harm to those who may be negatively affected by the proposal?
Whether a satisfactory legal solution to any current conflict will be reached in any particular state remains to be seen. In the meantime, such questions are necessary to improve our understanding and help protect our shared heritage of religious freedom for all.
From the April 2016 edition of Report from the Capital. Click here to view the issue as a PDF document.