March 3, 1999
Religious freedom bill gains support
___By Marv Knox
___Editor
___AUSTIN--The state took a step toward protecting citizens' religious liberty Feb. 25, when a Texas Senate committee approved a version of the Religious Freedom Restoration Act.
___The Senate State Affairs Committee voted 5-0 with one abstention to ratify a substituted version of Senate Bill 138. The proposal now will be presented to the full Senate. A companion piece of legislation, House Bill 601, is pendingwith the House State Affairs Committee.
___The legislation is needed because of setbacks to religious freedom at the national level, Sen. David Sibley, R-Waco, told the Senate committee.
___Prior to 1990, U.S. Supreme Court decisions ruled that government must demonstrate it has a "compelling interest" before it can interfere with religious practices of citizens, he said. In addition, if government did intervene, it was mandated to do so with the "least-restrictive means" possible, he said.
___But in 1990, the nation's high court handed down a decision, Employment Division vs. Smith, which overturned the compelling interest and least-restrictive means tests for government interference. Then in 1993, the U.S. Congress passed the Religious Freedom Restor-ation Act, which dictated that those safeguards be restored.
___Four years later, however, the U.S. Supreme Court overturned RFRA in a ruling on a Texas case. In City of Boerne vs. Flores, the justices declared the religious freedom law could not be applied to the states. Consequently, lawmakers in numerous states, including Texas, have set out to draft "mini-RFRAs," state laws that would restore the religious liberty guidelines.
___"Religious freedom is a fundamental right we perceive to be under attack," Sibley told the Senate committee. "Freedom to believe would be a hollow right without the freedom to act."
___The proposed law reasserts the compelling interest and least-restrictive means tests as protections against government interference in the "sincere religious belief" of citizens, Sibley said. The sole purpose of the bill is to "restore the tests that were in place prior to 1990."
___Sen. Florence Shapiro, R-Plano, chair of the committee and co-author of the bill, affirmed the need for RFRA in Texas. "Since 1990, there has been an erosion of religious freedom in this country," she said.
___Shapiro noted the "breadth of the religious coalition" that supports the bill.
___That point echoed in the testimony of the committee's first witness, Phil Strickland, executive director of the Texas Baptist Christian Life Commission. The bill has gained support from the full range of faith groupsññfrom Baptists and Catholics, to Methodists and Presbyterians, to Jews, Mormons and Muslims, as well as para-church groups from the left and the right.
___"What brings these people together?" Strickland asked. "The feeling that our religious freedom needs to be protected."
___"Religious liberty is foundational to this culture and to civilization," he stressed. "Religion is the first freedom, the right to practiceññor not to practiceññreligious faith."
___Religious freedom also is "a great public good," Strickland said, noting Baptists alone provide state citizens millions of dollars in medical care, college scholarships, supplemental food and disaster relief. Infringement on religious freedom could hurt these causes and weaken the state, he noted.
___The proposed bill is important because it provides incentive for government to "seek workable accommodations with religious groups" rather than run roughshod over religious liberty, he insisted.
___Kelly Shackleford, president of the Free Market Foundation and general counsel for the Liberty Legal Institute, backed Strickland's testimony.
___The U.S. Supreme Court's 1990 Smith decision removed free exercise of religion from the status of a fundamental right and diminished it to a constitutional right, which can be compromised, Shackleford said.
___"No Texan should have to seek permission from the state to protect these rights," he asserted. "The burden should be on government, not the individual citizen, church or synagogue" to demonstrate why the government should be allowed to interfere with religious practice or belief.
___"If there's no burden on the government, religious freedom relies on the whim of the kindness of government," he said. "Without RFRA, government agencies say (to churches), 'Listen, we've got all the power. Ö We don't have to work it out.'"
___Without such religious protections, judges and "cagey local officials could wipe out" minority religious groups that are out of favor, he warned. "This lifts that option out of the judges' hands."
___Although Texas already has "strong religious freedom protections," the 1990 Smith decision has given courts options to limit religious liberty in ways previously unthinkable, added Derek Davis, director of church-state studies at Baylor University.
___"Religious liberty is a God-given right," Davis declared. "Texans want to live in that kind of state" that protects religion from government interference.
___The committee hearing lasted more than three hours, and about 20 individuals registered to speak against the bill. Opposition focused on four primary concerns:
___Abuse of the bill for self-serving means under the guise of religion. "The definition of 'free exercise of religion' is too broad," charged Shirley Spellerberg, mayor of Corinth. "Anyone can use this bill to claim a violation of their free exercise of religion," whether or not the activity stems from a sincerely held religious belief.
___Spellerberg worried whether local governments could "prohibit smoking pot" if a person claimed the use of marijuana was part of his religious practice. "A person may willfully violate any law" by claiming protection under the bill, she claimed.
___"This is such an eccentric interpretation that it could not rise to the point of legal opinion," Sibley countered.
___Sen. Eddie Lucio, D-Brownsville, asked if passage of the bill would prompt a spate of lawsuits, with citizens claiming such "religious" liberties as the right to use heroin or refusal to provide a Social Security number to the Department of Public Safety.
___However, the state's compelling interests would override such claims, Shackleford contended, noting, "Most of the things that sound scary would not make it through this (compelling interest) grid."
___Lucio asked if the bill would produce a barrage of lawsuits by "people who would use this law as a vehicle to cry wolf."
___Shackleford noted Texas judges already have the power to "take care of frivolous lawsuits."
___And Chris Knapp of Prison Fellowship pointed out the state would not expect "a flood of prisoner (lawsuit) cases," since that was not the case during the three decades in which the compelling interest test was the norm.
___Howard Thompson, editor of American Atheist newsletter, said the bill would provide religious people with "special laws and privileges not provided to others."
___"This raises a threat to those who are not religious," he claimed. "Religionists, by their choice of belief, reduce the civil rights of others. The net effect will be to create a class society in Texas in which those with religious beliefs are superior to others."
___But Douglas Laycock, a professor at the University of Texas School of Law and a constitutional expert, contended otherwise.
___"Atheists are protected by religious liberty laws," he said, noting atheists already would have been "run out of town" in many Texas communities were it not for religious protection laws.
___
___In such cases, neighborhoods can be disrupted by unregulated traffic, high-density use caused by schools operated by the churches, as well as environmental concerns such as dumpsters being emptied in the middle of the night, he said. He also expressed concerns that churches could receive exemptions from building codes, such as those that regulate fire safety, on religious grounds.
___"Does the infringement on religious freedom mean the church does not have to comply with standards?" Pennington asked.
___"Placement of dumpsters, the applicability of building codes and other regulations still apply," Sibley assured. "They would not be affected by this."
___"There is a compelling interest in regulation" that protects public safety, the environment and other community well-being issues, Shapiro added.
___
___"We support the legislation, but with amendments" regarding land use, zoning and historical preservation, added Jane Jenkins of the National Trust for Historic Preservation.
___"It is important we protect these properties," she said. "They represent part of our heritage we must preserve."
___That issue was at the center of the Boerne case, in which the local historical commission and ultimately the city council successfully sought to prohibit the local Catholic church from proceeding with plans to expand its historic building.
___"We are concerned about city pride and heritage," Boerne Mayor Patrick Heath said. "We want to grow gracefully, maintain freedoms and maintain order."
___Reasonable people could have settled the Boerne case out of court and preserved both the church's rights and the city's heritage, Laycock told the senators. However, "the settlement didn't happen because the historical commission took an absolute position."
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___"It is so broad in scope Ö it is impossible for you to comprehend it completely," she told the senators. "This bill will tie the hands" of government officials at many levels, she predicted.
___Hamilton also claimed the U.S. Supreme Court's Boerne decision noted the least-restrictive means test was not applied to court cases before 1990.
___Laycock countered that assertion, noting the Supreme Court statement to which Hamilton referred was a quote from a legal brief she had filed with the court. "That statement is false," he said, adding he could cite nine court cases in which least-restrictive means had been applied, and numerous other cases exist.
___Shapiro asked if the proposed law could create a trend in court cases of the future.
___"Will it give (churches) more victories?" Shackleford asked. "I hope so. We're seeing religious groups destroyed with government showing no compelling interest" to interfere with their practices.Frontpage / Contents/ Masthead / Why We're Here / Links / Archive / E-mail us/ SUBSCRIBE!