Two years after the US Supreme Court struck down a federal law guaranteeing freedom of worship, the concept of religious liberty is springing up in statehouses around the country.
Texas is one of 11 states considering adoption of a Religious Freedom Restoration Act (RFRA), a bill that would protect religious expression from state intrusion. By putting this bill on the docket, Texas has placed itself on the center stage of a classic American debate over the balance of power between church and state.
"For many years, the courts required that the government should yield to religious beliefs except where the state had a compelling interest," says Rep. Scott Hochberg, a Democrat representing south Houston. Several recent court rulings have weakened that standard, leading liberals like Mr. Hochberg to join conservatives in strengthening the rights of worshipers. "What this bill does is reestablish that [older] standard.
It does not say that religion always wins."
Strengthening individual rights to worship would seem a no-brainer in Texas, a place that folks like to call the "buckle of the Bible belt." But passing this bill even in this state is no sure thing, with a chorus of critics - including city officials, prosecutors, and even pediatricians - fretting that such a law could spur countless lawsuits. Even so, there's a remarkable collection of political interests behind this bill, from liberal secularists to conservative Christians, and with RFRA laws on the books in five states, the religious rights movement appears to be building some momentum.
"Government can and does substantially burden religious exercise through inadvertent as well as intentional discrimination," says Steven McFarland, director of the Christian Legal Society's Center for Law and Religious Freedom in Annandale, Va. "We're going to key states, and obviously Texas is the big tamale."
Bill supporters practically gush with anecdotes of egregious intrusions into personal lives. There's the Jewish man who was required to take off his skullcap in a courtroom, and the Lutheran lay minister in Florida who lost his driver's license for performing the Eucharist (he was charged with serving alcohol to minors).
More commonly, there are dozens of churches that have been denied permission to build in commercial zones because that would mean a loss of city tax revenue. The law would give citizens and churches the right to demand in court that the state or local agency give a compelling reason for its actions.
Of course, lawmakers and lobbyists in Washington have been down this road before. A federal version of RFRA was signed by President Clinton in 1993 as a means of strengthening religious freedom in every state.
Then, in 1997, the US Supreme Court took a case between the city of Boerne, Texas, and the Roman Catholic diocese, which wanted permission to expand its church in a historic district. The court ruled in favor of Boerne, and then went further in striking down the federal RFRA, saying that Congress had no business passing laws that restrict state and local governments.
But much to the relief of church members and leaders, the court said states could pass such laws themselves, says Sen. David Sibley (R) of Waco, a sponsor of the bill in the state Senate. "This bill's going to pass. It's one of the most remarkable things I've ever seen in my political life, when you have conservative Baptists and liberal Baptists, Catholics and Jews, all behind the same thing."
Senator Sibley thinks there might be a division of labor in upholding the First Amendment. States can be the "guardians" of free exercise of religion, while the federal government is the guardian of separation of church and state. Still, he adds, "I wish Washington would leave states alone to protect our folks."
BUT not all Texans welcome this bill. City officials, prison wardens, and even some doctors worry this law would spawn a wave of litigation that would flood the courts. More parents could claim religious reasons for denying medical care for their children. More prisoners could file lawsuits over the lack of kosher food or a suitable place to worship. And cities would face an onslaught of lawsuits over every denied zoning clearance from religious groups.
"Our concern is that this is such a broad brush that it will spark all sorts of litigation that could hinder a city's regulatory authority," says Susan Hortan, spokeswoman for the Texas Municipal League, an Austin-based lobby group that represents city governments. Even so, she adds, "We're committed to see if there's a way that we can arrive at language that meets our concerns."
But experts note such a wave of lawsuits is unlikely to occur. Gang members wearing religious symbols on their "uniforms" can be forbidden from doing so on school property because the state has a compelling interest to ensure public safety. Even in prisons, where lawsuits proliferate, only 0.25 percent of the lawsuits by inmates against prison officials have been based on religious-freedom claims since the federal law was enacted.
"There's been lots of talk about a wave of litigation, but the numbers just don't back it up," says Doug Laycock, a law professor at the University of Texas at Austin, who represented the Catholic Church in the Boerne case.