Religious Freedom Legislation in Texas Takes Aim at Same-Sex Marriage

By Saindon, Kimberly | Texas Journal on Civil Liberties & Civil Rights, Spring 2018 | Go to article overview

Religious Freedom Legislation in Texas Takes Aim at Same-Sex Marriage


Saindon, Kimberly, Texas Journal on Civil Liberties & Civil Rights


Introduction.............................165

I. The Road to Texas ' s RFRA.............................166

II. Religious Freedom Legislation in Texas.............................168

A. Hobby Lobby's Effects on RFRA Legislation in Texas..............................170

B. Public Accommodation Protections.............................171

C. Texas's Initial Legislative Response to Obergefell.............................173

III. Where We Are Now: The Adoption Bill.............................175

A. Possible Constitutional and Legal Challenges to the Adoption Bill............................178

B. Possible Arguments Available to those Denied Service Based on Religious Beliefs...............................180

C. Expectations Going Forward............................182

IV. Conclusion.............................183

Introduction

The Religious Freedom Restoration Act (RFRA) requires that the government reach a high standard in order to burden an individual's free exercise of religion. Texas has its own RFRA, and since its inception, most RFRA-related bills in Texas have provided exemptions for individuals with sincerely held religious beliefs. The legalization of same-sex marriage in the United States in Obergefell v. Hodges changed the nature of RFRA-related legislation in Texas.1 Many bills from the 2017 Texas legislative session now address same-sex marriage and create exemptions for individuals who oppose same-sex marriage based on religious beliefs.2 The number of RFRA-related bills introduced during the 2017 legislative session also increased. This increase is due to the addition of same-sex marriage RFRA bills to the usual RFRA bills and because the success of the original plaintiff in Burwell v. Hobby Lobby has bolstered the strength of the RFRA doctrine and sparked more RFRA-related legislation. Recent Texas RFRA-related legislation includes the Pastor Protection Act and the Adoption Bill, the latter of which has created significant controversy and is potentially vulnerable to constitutional and other legal challenges.3 Barring a change in state leadership, Texans can expect to see more RFRA-related bills addressing same-sex marriage in the future.

I. The Road to Texas's RFRA

The Religious Freedom Restoration Act (RFRA) doctrine has found a comfortable home in the state of Texas. But the RFRA doctrine took a winding path before coming to rest in Texas in its current form. RFRA began as a national response to the unpopular holding in Employment Division v. Smith in 1990.4 The Supreme Court held in Smith that the state of Oregon could deny unemployment benefits to a Native American fired for using peyote (an illegal, hallucinogenic plant) during a tribal ritual, and that the plaintiff was not exempt from a neutral law of general applicability even if it conflicted with his religious beliefs.5 Smith sent shockwaves around the nation, with many people feeling that the ruling had impermissibly imposed on the rights guaranteed by the Free Exercise Clause of the First Amendment.6 Religious groups and civil rights organizations became unlikely bedfellows and lobbied Congress to pass RFRA to restore the religious liberties that many feared were lost in Smith.1 The U.S. Senate voted astoundingly 97-3 in favor of RFRA, and the Act was signed into law by President Bill Clinton in 1993.8

The Act states that its purpose is "to restore the compelling interest test as set forth in Sherbert v. Verner. . . and Wisconsin v. Yoder. . . ,"9 Sherbert and Yoder constitute some of the country's most protective holdings on religious liberties.10 The strict scrutiny standard, as applied in Sherbert and Yoder, requires that the state have a compelling governmental interest in order to burden an individual's religious convictions.11 The 1993 federal RFRA marked the reintroduction of the strict scrutiny test.12 RFRA adopts the same language as in Sherbert and Yoder- prohibiting the government from substantially burdening a person's free exercise of religion, unless 1) the agency demonstrates that this is in furtherance of a compelling state interest test, and 2) is it the least restrictive means of furthering that interest. …

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