To RFRA or not

Religious liberty bills promise freedom, but for whom?


JAMES RUSSELL  |  Staff Writer

In a 1989 decision, Employment Division v. Smith, involving two men who were fired for smoking peyote as part of a sacred Native American ritual and then denied state unemployment benefits, the U.S. Supreme Court vacated a lower court ruling declaring that the two were not fired out of religious bias but because they violated state drug laws.

The U.S. Supreme Court returned the case to the Oregon Supreme Court to decide if a state could deny unemployment benefits to a worker fired for using illegal drugs for religious purposes? The Oregon Supreme Court ultimately sided, in a 6-3 decision, with Oregon’s Employment Division.

That ruling concerned both secular civil libertarians and those with deeply held religious beliefs, said Elizabeth Oldmixon, an associate professor of political science at the University of North Texas in Denton. A broad coalition then worked with Congress to pass the Religious Freedom Restoration Act of 1993, and President Bill Clinton signed it into law.

That bill, said Oldmixon, told the Supreme Court that in such cases, to give the benefit of the doubt to the plaintiffs, not the government.

Among the groups in that earlier coalition was Americans United for the Separation of Church and State, a nonpartisan educational organization that preserves church-state separation.

Today that group is actively involved in debate over state versions of religious freedom restoration bills popping up in legislatures across the country, primarily in response to court rulings legalizing same-sex marriage and an upcoming decision from the U.S. Supreme Court expected to legalize same-sex marriage nationwide.

The first RFRA to pass and be signed into law this year came in Indiana. Gov. Mike Pence signed that bill on Thursday, March 26.

Sarah Jones, AU’s communications associate, said the federal RFRA “passed as a shield to protect religious minorities, such as non-theists, Muslims and Jews. It strikes a balance between religious expression and the federal government’s interest in enforcing laws.”

But the federal law soon fell under scrutiny again, when the Supreme Court again struck down a portion of the 1997 Boerne v Flores ruling, said Chicago Kent College of Law Professor Sheldon H. Nahmod. That case asked whether or not the city of Boerne, Texas could prevent a Catholic church from expanding because of historical landmark and preservation laws. The court ruled for the church.

Striking RFRA’s application to state and local governments left only the federal application intact, Nahmod explained. Then another act of Congress resulted in the Religious Land Use and Institutionalized Persons Act, signed by President Clinton in 2000.

That ruling set a precedent for another Supreme Court ruling, however.

In 2012, Hobby Lobby, the national arts and crafts chain, sued the federal government over a provision in the Patient Protection and Affordable  Care Act requiring employers to provide contraception coverage. Hobby Lobby v Burwell claimed covering contraception was a violation of the chain’s owners’ religious beliefs under the RFRA.

In a 5-4 decision, the court ruled in favor of Hobby Lobby.

What conservative groups praised about the ruling, others panned.

At the state level
If one term could sum up the dispute between the two factions in the battle over state religious freedom laws, it’s “broad.” In the Burwell case, the term means either an unconstitutional overreach or a victory for religious liberty.

Supporters of current religious liberty bills, said Jones, “claim they just reaffirm what the federal bill already says. That isn’t true. These state level bills are written much more broadly and contain discriminatory provisions that aren’t present in the federal bills.”

She said additionally the Hobby Lobby decision ultimately “granted special privileges. One of the most common ‘special privileges’ is allowing small businesses the right to discriminate against customers, such as same-sex couples.”

But Rep. Matt Krause, R-Fort Worth, author of the Texas bill — HJR 125 — disagreed. Krause, a lawyer, interprets the federal RFRA much like Oldmixon or Jones. In written answers emailed to him, Krause said the federal RFRA “walks that fine line by asserting that the federal government can only burden the free exercise of religion (or conscience) if it has a compelling interest in doing so and it’s done in the least restrictive means possible. It gives citizens a cause of action to challenge the actions of government in these certain contexts.”

The bill, if enacted, he wrote, would codify in the state Constitution the state’s current religious freedom act, which passed in 1999.

In its current state, according to the Texas Freedom Network, the Texas RFRA bars measures that “substantially burden” the free exercise of religion. In addition, it includes other carefully crafted language that has helped avoid unnecessary lawsuits while providing various remedies and ensuring that the law is not abused. It currently mirrors the federal RFRA.

Passage of HJR 125 would change nothing, according to Krause.

“All I am trying to do is give our Texas RFRA constitutional protection,” he wrote. “There were efforts to make Texas’ RFRA language constitutional as far back as two sessions ago. It’s important to remember this is not a reaction to recent events … before we had any instances of bakers, florists or photographers. The intent was by no means an ‘intent to discriminate’ or ‘license to discriminate’ but rather good policy that has served Texas well for over a decade and it deserved constitutional protection.”

Selisse Berry, founder and CEO of Out & Equal Workplace Advocates, is convinced that bills like Krause’s and its Senate companion, HJR 10 by Sen. Donna Campbell, are discriminatory.

“It reminds me of people of color not being served. It’s an overall sad state of affairs, especially given the advances of LGBT workplace equality,” she said by phone.

After signing Indiana’s religious freedom bill into law amidst backlash from a wide variety of groups, Gov. Mike Pence asked that state’s legislature to assure discrimination against LGBT people will not be allowed. But, if Krause and others said discrimination is not their intention, are activists wrong about the RFRAs?

Chicago Kent’s Nahmod said it’s difficult to tell if these pieces of legislation are motivated by anti-LGBT animus.

“Indiana doesn’t have a statewide nondiscrimination ordinance,” he said, and while it could be argued signing the RFRA was a last-ditch push to prevent passage of a statewide nondiscrimination ordinance, that can’t be proven.

“But if discrimination is the intention, then they may be seriously unconstitutional,” Nahmod said.

But Berry disagreed.

“It’s naïve to say Pence’s decision to sign the bill was not motivated by discrimination,” she said. “Whether [these bills are] intentionally meant to discriminate or not, it’s clear the LGBT community needs a federal nondiscrimination ordinance,” she said. “We have state and city nondiscrimination ordinances [but] we still need a federal law to protect LGBT people.”


Religious liberty bills currently under consideration in the Texas Legislature include:

• HB 3567 by Rep. Scott Sanford. Would prevent the government from punishing a clergy member  or person of faith who does not perform same-sex marriages.

• HB 3864, also by Rep. Sanford. Would allow child welfare organizations to deny care to children of LGBT parents based on religious beliefs. Sen. Donna Campbell filed its Senate companion, SB 1935.

• HB 3602 by Rep. Cecil Bell. Would bar retaliation against “conscientious objectors” who refuse to perform same-sex marriages. SB 1799 by Sen. Larry Taylor contains similar language.

• HB 55 by Rep. Jason Villalba and SJR 10 by Sen. Campbell. Would allow Texas’ businesses to refuse service or deny employment to LGBT people based on individual’s or religious organization’s beliefs. Villalba has since said he would reconsider his resolution, but Rep. Matt Krause filed the identical HJR 125 late on March 12.

• HB 2553 by Rep. Molly White. Would allow business owners to decide whom they serve or conduct business with based on religious convictions.

• HB 1355 by Rep. Matt Shaheen. Would make it a criminal offense for an elected official to threaten, punish or intimidate a person based on the person’s religious beliefs.

— James Russell


—  James Russell

The WWE smack down you may have missed: Rafael McDonnell v. Matt Krause

—  James Russell

Rep. Krause files anti-LGBT religious liberty amendment

State Rep. Matt Krause

Rep. Matt Krause, R-Fort Worth.

It’s baaaaaack. Rep. Matt Krause, R-Fort Worth, filed HJR 125, an identical version of the religious liberty resolution that was previously introduced and then abandoned by Rep. Jason Villalba, R-Dallas.

After the Texas Association of Business denounced it, Villalba said he would reconsider the resolution, the House companion to one filed by New Braunfels’ Republican Sen. Donna Campbell.

Krause, who is serving his second term in the House, has consistently been ranked among the worst legislators for LGBT equality by Equality Texas.

—  James Russell

Rep. Matt Krause acknowledges gay marriage won’t ruin ‘traditional family’


Fort Worth Republican state Rep. Matt Krause has stated before that he’s against same-sex marriage, but he opined over the holiday weekend that gays marrying won’t ruin opposite-sex marriages.

“I’ve said this before, but with last week’s DOMA ruling, I think it bears repeating. The heterosexual community has done more to undermine the traditional family than same-sex marriage ever could,” Krause posted on his Facebook page. “High divorce rates, rampant infidelity, and the astronomical numbers of children being born into homes without fathers should cause us much concern. While it is important to be active and engaged on all fronts that seek to undermine the family, we fool ourselves if we think same-sex marriage is the one thing that could destroy the nuclear family. Agree or disagree?”

Krause, who’s worked for the anti-gay Liberty Counsel, authored HB 360 earlier this year. In its initial form, the bill would have allowed university clubs to discriminate based on race, gender and sexual orientation. Krause later reworded the measure and offered it as an amendment to another bill, but it was cut from the final version.

Many who’ve commented on Krause’s Facebook post agreed with him, while some pointed out that he shouldn’t be against same-sex marriage.

—  Dallasvoice

Rep. Matt Krause says he’s not anti-gay despite Equality Texas ranking

State Rep. Matt Krause

State Rep. Matt Krause

Fort Worth Republican Matt Krause was recently named the worst legislator in the state House on LGBT issues by Equality Texas.

Krause called last Thursday night after the deadline for the story, but we were able to connect Friday and discuss the ranking, as well as his views on some LGBT issues. Until now Krause, who’s worked for the anti-gay Liberty Counsel, was perhaps best known in the community for his representation of Dakota Ary, a Fort Worth student accused of harassing a gay teacher.

Krause attributes the ranking to his amendment to SB 215 that started out as HB 360 and would have allowed student groups to determine who to allow into clubs based on sexual orientation, race and gender.

“Their rankings are up to them. They use the criteria of the votes of the issue they want to , so I can’t really disagree with them. I think if you talk to anybody, you wouldn’t find that I’m hateful toward the LGBT community, that I have any type of disregard for them,” Krause said. “It’s nothing that I do out of animosity. It’s just what I feel is constitutionally sound, but I think there’s a lot of people, maybe with Equality Texas, that think I don’t like them or appreciate them for who they are. That’s not true. But if they want to give me the worst legislator ranking, that’s their prerogative and completely up to them.”

HB 360 was rewritten and a substitute made it out of committee, but the bill didn’t make it onto the floor. The amendment was then created to allow universities to not follow “all-comers” policies. Krause said he should have monitored the bill’s original language more closely because the intent was not to discriminate but to not force groups from admitting people who would undermine the club’s purposes.

“When the draft came back and it said, you know, race, gender and sexual orientation, we should have known right then that’s not the language we wanted to use,” Krause said. “It was never my intent for a political group to be able to discriminate against someone because of their sexual orientation or an athletic group being able to discriminate on the basis of race, something that had nothing to do with the actual club.”

—  Dallasvoice

Last anti-gay measure dies in TX Lege

State Rep. Matt Krause

State Rep. Matt Krause

As the session winded down last week, an anti-gay amendment by Fort Worth’s Matt Krause was still pending in SB 215 but was ultimately killed.

The amendment, which was originally filed as HB 360, passed the House in mid-May and would have allowed student organization at state-funded colleges to discriminate for membership. But Equality Texas reports that the Senate refused to agree with the amendments and formed a conference committee over the weekend.

The amendment was later removed on Friday before the session ended Monday.

Overall, LGBT advocates have called this session a success with several anti-gay measure defeated and the advancement of a few pro-equality bills.

However, there’s still a special session, which has been limited to redistricting so far. Equality Texas Executive Director Chuck Smith said it’s unlikely anti-LGBT measures would come up unless the special session is expanded to include education or other social issues.

“We’ll just have to wait and see if the call gets expanded beyond redistricting, and if it does, it could be problematic,” Smith said.

Read Equality Texas’ timeline of the Krause amendment below.

—  Dallasvoice

TX House passes anti-gay amendment allowing student clubs at universities to discriminate


State Rep. Matt Krause

The Texas House passed an amendment Wednesday afternoon that would allow student clubs at universities to discriminate against people for membership.

The motion passed 78-67 after a motion to table it failed.

Fort Worth Republican Rep. Matt Krause’s amendment mandates that the Texas Higher Education Coordinating Board work with institutions to “ensure that each institution does not implement a policy or otherwise engage in a practice that requires a student organization” to accept members who “demonstrate opposition to the organization’s stated beliefs and purposes.”

Krause tacked it onto SB 215 and argued the amendment was about “protecting free speech” in deciding who can join a club. Others said it wasn’t appropriate to decide for universities how organizations on campuses should be handled and called it discriminatory.

Krause originally filed the amendment as HB 360, which didn’t make it before the House floor for a vote. That bill originally stated clubs could discriminate based on race, gender and sexual orientation. A compromise bill later passed out of committee preventing clubs form having to abide by universities’ nondiscrimination polices.

According to Equality Texas, if enacted, Krause’s amendment “would allow officially-recognized student organizations who receive taxpayer funded support from a university to discriminate against a potential member based on race, religion, veteran status, HIV/AIDS status, gender, disability, sexual orientation and gender identity or expression if any attribute of the student ‘demonstrates opposition to the organization’s stated beliefs and purposes.’”

State Rep. Harold Dutton Jr., D-Houston, said during today’s debate that the amendment is discriminatory and takes away freedom from students to join whatever club they wanted to.

“You don’t lose your freedom a mile at a time. You lose it an inch at a time,” Dutton said. “This is another attempt to take away some of the freedoms we have.”

Daniel Williams, field organizer for Equality Texas, said the amendment “barely squeezed through” and had bipartisan opposition. He said the amendment can still be dropped from the legislation as a committee creates a compromise bill that combines the Senate and House version. That bill then goes to another vote.

“There are still many steps left in the process and we will continue to work with our allies in the House and Senate,” he said. “I am very hopeful that this amendment will not become law.”

To see how House members voted on Krause’s amendment, go here.

—  Dallasvoice

ACTION ALERT: Anti-LGBT legislation surfaces as session winds down

State Sen. Donna Campbell

State Sen. Donna Campbell

The Texas Senate on Tuesday passed SB 1218, which would prohibit anyone from obtaining a marriage license with a document that lacks a photo, including an affidavit of sex change.

Daniel Williams, field organizer with Equality Texas, said the bill’s author, state Sen. Donna Campbell, R-New Braunfels, stated that her intent with the bill was to require a photo be shown to get a marriage license.

However, removing an affidavit of sex change from the list of documents that can be used to obtain marriage licenses could bar transgender people from marrying people of the opposite sex.

“Donna Campbell’s bill is targeting communities that aren’t likely to have forms of ID,” Williams said.

Williams said Equality Texas is working to slow down the bill’s process. It still has to pass a House committee and make it onto the House calendar for it to be voted on by midnight on Tuesday, May 21, which is the last day for the House to consider Senate bills.

Meanwhile, anti-gay Fort Worth Republican Rep. Matt Krause has filed an amendment to SB 215 that would allow student organizations at universities to ignore the school’s nondiscrimination policy. Krause originally filed a bill with the same intention, but it died last week when it failed to make it onto the House calendar.

Williams said the amendment “has a really decent chance of passing” because Krause is gaining support for it based on students having free speech.

“It’s not about protecting free speech. It’s about tax-funded hate speech, ” Williams said.

Williams said constituents should contact their state representative and ask them to vote against the amendment when it’s considered today or tomorrow. You can find your representative here.

—  Dallasvoice

2 anti-gay bills die in TX Legislature

Springer.DrewHB 1568 by Rep. Drew Springer, R-Muenster, which aimed to defund school districts that offer health benefits to partners of employees, is officially dead.

HB 360 by Fort Worth Republican Matt Krause also died. Krause’s substitute bill would have allowed school organizations to disregard the college’s nondiscrimination policy.

Equality Texas Executive Director Chuck Smith said the bills didn’t make in onto the last House calendar for May 9, and therefore will not go to the floor for a vote.

“It’s dead,” Smith said. “This is a victory.”

Springer’s bill was considered in committee, and a substitute passed out of committee in late April. The substitute changed cutting school funding to allowing the attorney general to defund and close school districts that offer DP benefits without an appeals process. Only Pflugerville and Austin ISD have elected to offer the benefits.

Equality Texas worked with the House Calendars Committee to ensure both bills would miss the deadline. They could come up again this session if they are attached to another bill, but Smith said Equality Texas would watch changes to bills to ensure that doesn’t happen.

—  Dallasvoice

Racist, anti-gay bill would allow college student groups to decide membership


State Rep. Matt Krause

Conservative freshman state Rep. Matt Krause, R-Fort Worth, has filed a bill that discriminates against people based on race, gender and sexual orientation.

HB 360 would deny state funding to colleges and universities, including private institutions, that require a “student organization, including a religious student organization, to allow any student enrolled at the institution to participate in the organization, regardless of the student’s beliefs or status, including race, gender, and sexual orientation.”

The bill states that colleges requiring a religious organization to accept any member regardless of “status or beliefs” violates the First Amendment, “including the rights of free exercise of religion and of freedom of association.”

When asked what the bill’s purpose was, Elliott Griffin, Krause’s chief of staff, said the bill was currently being redrafted to be more narrow. He said he would discuss it more after the language was final.

Krause is perhaps best known in the LGBT community as the Liberty Counsel attorney who defended Fort Worth student Dakota Ary after he was suspended for making anti-gay remarks in class.

Equality Texas Executive Director Chuck Smith said the legislation could possibly apply to a faith-based organization at a private university that wants to limit membership to straight white men. He said the bill is so offensive it likely won’t go anywhere.

“It’s pretty much offensive across the board,” Smith said. “I think that piece of legislation is dead on arrival. It’s an equal opportunity offender.”

This week’s Equality Texas’ legislative update focuses on the other anti-gay bill filed this session by Rep. Drew Springer, R-Muenster. His bill would penalize school districts who offer domestic partner benefits to its employees.

Watch the video below.

—  Dallasvoice