Given the current media firestorm around proposed RFRA laws in Indiana and Arkansas, the Christian Life Commission would like to give a brief history of RFRA laws and reiterate our support for state RFRA laws that mirror the federal law.
The federal Religious Freedom Restoration Act was passed in 1993 in response to the Supreme Court decision in Employment Division v. Smith, which held that generally applicable laws that conflict with religious beliefs do not violate the First Amendment. The Smith ruling meant that any law, as long as it was not intended to prohibit the free exercise of religion, is valid even if it restricted religious free exercise. This decision shifted the balance between government interests and religious freedoms decidedly towards government.
The federal RFRA was designed to restore the delicate balance between religious freedom and government interests. The federal RFRA was supported by a broad coalition of religious liberty advocates and enjoyed bipartisan support in Congress. It ensures that government does not substantially burden the free exercise of religion without a compelling justification and the use of the least burdensome means .
The Texas RFRA was written in response to a 1997 Supreme Court decision that struck down the federal RFRA law as applied to state actions. This ruling meant that the federal RFRA only applied in instances of federal government action. In 1999, the Texas RFRA was passed with bipartisan support. The vote in the Texas Senate was 30-0. It was carried by Rep. Scott Hochberg (D-Houston) and Sen. David Sibley (R-Waco). The 1999 Texas RFRA was a result of many faith communities and constituencies coming together to support religious freedom.
Texas' RFRA law has been very effective in protecting the free exercise rights of individuals while also recognizing the state has legitimate interests that may sometimes require limitations on religious expression. The Texas law, just like the federal law, protects both individual and community interests.
Here are two examples of how Texas' RFRA law has worked to protect freedom of religion: Most recently in Dallas, a homeowner's association lawsuit against a Jewish family hosting a worship service in their home was dismissed due to the Texas RFRA. In another case involving a small South Texas town, a city ordinance prohibited the location of correctional rehabilitation facilities in defined areas, and thus precluded the plaintiff pastor from operating a "halfway house ministry" in two houses he owned. The United States Court of Appeals for the Fifth Circuit reasoned that "a government action or regulation creates a 'substantial burden' on a religious exercise, if it truly pressures the adherent to significantly modify his religious behavior and significantly violate his religious beliefs." In this case, since alternate locations for the pastor to operate halfway houses were "pretty close to nonexistent," the ordinance effectively banned the pastor's ministry in the whole city. Thus, the Court concluded that the city ordinance substantially burdened the pastor's ministry.
While RFRAs in various states once enjoyed bipartisan support, the atmosphere around these laws has changed dramatically in the last few years, as evidenced by the firestorm over the RFRA laws in Indiana and Arkansas. The atmosphere around religious freedom has definitely gotten more partisan, which can be linked to the expansion of same-sex marriage. Concerns have arisen on the right because of the efforts by a few jurisdictions in other states to force people to do things against their religious convictions. Concerns have arisen on the left because of efforts in other states to pass RFRA laws that do not match the current Texas and federal laws.
The CLC believes religious freedom and mutual respect can co-exist and that the current Texas and federal RFRA statutes represent a perfect balancing test between individual and government interests.
Currently, there are efforts under way in Texas to add religious liberty protections to our state constitution. The CLC supports these efforts as long as the language mirrors word-for-word the current Texas law. A constitutional amendment would enshrine religious freedom in the Constitution, which makes Texas' commitment to religious freedom less subject to the whims of the Legislature.