To RFRA or not

Religious liberty bills promise freedom, but for whom?

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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

BREAKING: Anti-LGBT bill filed by freshman representative

shaheenRep. Matt Shaheen, a freshman Collin County state representative, filed HB 1355 this morning (Thursday, Feb. 12), a bill defending the religious liberty of individuals who feel bullied by elected officials.

The bill, which would prohibit anything that might “threaten, punish or intimidate an individual based on the individual ’s religious beliefs,” doesn’t specifically target LGBT people. But the veiled language says something else. After all, SB 343, according to its author, Sen. Don Huffines, R-Dallas, would essentially overturn local nondiscrimination ordinance, because it would make municipal laws comply with state laws, which currently do not protect LGBT people.

Neither Shaheen nor Huffines are LGBT allies. Shaheen is also a co-sponsor of HB 623, which would bar government employees from issuing marriage licenses to same-sex couples. And as a proud defender of religious liberty, he also signed a letter with his fellow Collin County lawmakers opposing Plano’s equal rights ordinance.

—  James Russell

Indiana Senate votes for religion-based discrimination

The Indiana Senate voted yesterday (Tuesday, Feb. 3) to allow organizations such as hospitals and universities with religious affiliations to discriminate against employees who refuse to follow the employers’ religious beliefs, even if the employing organization receives state funds.

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Indiana Sen. Travis Holdman

Senate Bill 127 would allow those employers to make hiring decisions based on religious beliefs and to require employees to follow the religious tenets of the employer. The Republican-controlled Senate passed the bill on a vote of 39-11. All 10 Democrats in the Senate voted against the measure, and they were joined by one Republican: Sen. Ron Grooms of Jeffersonville.

Republican Sen. Travis Holdman, who authored the bill, said it does not grant license to discriminate, but instead follows federal law which allows similar exemptions from nondiscrimination requirements. But Democratic Sen. Karen Tallian said the part of the bill that allows such employers to require employees to adhere to employers’ religious tenets goes way beyond federal exemptions, and called the measure outrageous.

Outrageous or not, such “religious liberty” bills are definitely all the rage this year, being pushed by right-wingers furious over advances in marriage equality and LGBT civil rights try every tactic they can think of not to have to comply with court rulings striking down marriage equality bans — including an expected ruling this summer by the U.S. Supreme Court. The 2015 Texas Legislature, in session for less than a month, has already seen its share, as the Texas Observer points out here.

—  Tammye Nash

The GOP and the compartmentalization of dignity

There are historians (and I know some personally) who will argue that the “cause” of the U.S. Civil War was not slavery: It was economics.

“Oh, yes, there were some abolitionists who sincerely were opposed to slavery,” the line goes. “But they were the tools of the industrial North, which wanted to destroy cheap labor in the South.” The proof? After the war, the Northern carpetbaggers came and forever changed the face of the nation, especially in the South.

Some others will argue it wasn’t about slavery or economics — it was about states’ rights.

Let’s concede for a moment that true abolitionists were a small minority and were manipulated by Northern robber-barons for their own purposes. Even so, you know who the Civil War remained “about slavery” to? The slaves. Economy, states’ rights… Pfftt! Fact is, when the war ended, the Constitution was amended to give an entire class of Americans rights guaranteed to them that they had never been given, despite being human beings. Before the Civil War, one man could own another in this country; after, they could not. That’s a big deal.

—  Arnold Wayne Jones

‘They got ugly in their bones’

Despite another gay teen suicide, right-wingers in Tennessee want to give kids a license to bully LGBT youth under guise of religious liberty

Phillip-Parker-Age-14

BULLIED TO DEATH | Phillip Parker, 14, who took his own life last week due to anti-gay bullying, was the second Tennessee teen to do so in as many months.

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Hardy Haberman  |  Flagging Left

 

My family tree’s roots spread in two directions. My father’s side of the tree spreads toward Eastern Europe and my mother’s side into the hills of Tennessee.

I mention this because having those Tennessee roots has given me a fondness for that state and its beautiful scenery and its people — most of them. Unfortunately, it also contains some of the ugliest people I’ve ever met. Not physically ugly, but deeper. As my hillbilly grandfather would say, “They got ugly in their bones.”

The people I am talking about are the strange citizens of the Volunteer State who feel it is their God-given right to verbally and physically abuse anyone they feel is worthy of their scorn. They are bullies, plain and simple, and they are doing it under the guise of religion.

As the Tennessee Legislature takes up a bill (HB 1153) to protect bullying as religious expression, comes the news of yet another teen suicide in the state. Phillip Parker, 14, of Gordonsville is the latest in a series of suicides directly related to being mercilessly bullied for being gay.

You would think the good lawmakers of Tennessee would have some sympathy for these poor children, but it seems more than one state representative sees it differently. Republican John Ragan noted the statistics showing higher suicide rates among LGBT youth and said that therefore, it had “more to do with his own proclivities and behavior than anything to do with schoolmate bullies….”
Blame the victim!

To be fair, some in the state are calling for a stop to the fatal bullying.  There is an opposing law (SB 1621) also being considered that is designed to eliminate bullying and provide “a safe and civil environment … for students to learn and achieve high academic standards.”

This law has powerful adversaries like the Family Action Council of Tennessee. This group, a branch of Focus on the Family, are the same folks who last spring tried to push through a “Don’t Say Gay” bill. These same kind folks also overturned a local ordinance in Nashville that protected LGBT workers from discrimination.

So what the heck is it with Tennessee? Well, they are not alone. Already another “license to bully” bill is moving through the Michigan Legislature. And of course here in Texas there are a whole bunch of ugly people who are incensed that we have moved a series of anti-bullying laws through the Legislature. Of course one of those groups is the Plano-based Liberty Institute, an affiliate of Focus on the Family. They are already screeching about free speech and how these laws impinge on their freedom of religion.

So my question is this. How the heck does bullying a teenager so mercilessly that he takes his own life rather than face the continued abuse constitute “religious expression”? The right wing talks about the slippery slope of offering protections to LGBT youth as “special rights,” but I seriously doubt if the shoe were on the other foot they would see it that way.

Imagine if my religion called for me to make animal sacrifices in the public square. Imagine if my religion said I should close all tattoo shops and barber shops. Imagine if my religion said the bank had to forgive all debts every 49 years. After all, those are all in the Bible along with a whole lot of other things that would seem even stranger.

No, the right wing is not worried about “special rights.” They are specifically concerned with denying rights to LGBT people. We have become the bogeymen for a generation of far-right fundamentalists who can’t seem to find anyone else to blame for their problems. These people must have someone to blame because of their warped view of religion and the “will of God.” When you try to take the Bible literally, you run into all kinds of problems, not the least of which is the need to find scapegoats. After all, why else would their lives be so difficult if it weren’t for someone standing in the way of getting their just rewards from God?

I have noted the anger of the religious right previously, and the bullying that manifests itself in our schools and playground is just the next generation of that anger acting out. Though I started by focusing on Tennessee, I assure you that the problem is everywhere and it won’t be stopped easily.

I am pretty sure nobody can change the warped attitudes some of these people have toward LGBT folk, but I do know that we can provide legal protections to assure that under the law, everyone has equal rights. If the right believes that their freedom of speech extends to bullying and abuse, then it’s time for some serious education in what it means to have a civil society. There is enough ugliness in the world without trying to create more.

Hardy Haberman is a longtime local LGBT activist and a board member of the Woodhull Freedom Alliance. His blog is at DungeonDiary.blogspot.com.

This article appeared in the Dallas Voice print edition January 27, 2012.

—  Kevin Thomas

Gay Pride T-shirts finally arrive at local Old Navy stores — but they’re goin’ fast

At last!!! Old Navy stores at Park Lane and the Galleria finally got a shipment of those Pride T-shirts in on Tuesday — a little behind schedule — but they’re selling like hotcakes. In fact by this afternoon they’d run out already, but both stores said they’ll be getting more shirts in on Thursday to satisfy the prideful public of Dallas. The shirts are selling for $13.50 a pop, and one employee advised me to get in early if I wanted one. Ten percent of the proceeds benefit the It Gets Better Project.

Although Dallas seems to be a fan of getting its Pride on with these stylish Old Navy tees, one group isn’t so thrilled: the Christian Anti-Defamation Commission.

“Old Navy is promoting a lifestyle that is in complete rebellion against God,” the CADC’s Dr. Gary Cass told OneNewsNow.com. “Rather than just focusing on giving good products to their customers, they want to use their products now to advocate for a very controversial topic, much less a very immoral and very deadly topic. Unfortunately we have to do the hard work of communicating our outrage, our frustration — and then following that up with some kind of practical expression such as taking your business elsewhere.”

—  admin