WASHINGTON — As the Supreme Court decision on state marriage amendments looms, more than a dozen states have been debating legislation that seeks to protect religious liberties no matter which way the court ruling falls.
“The religious-freedom issue is starting to come to the forefront for Americans, especially after the [U.S.] solicitor general, in arguments before the Supreme Court, indicated that the tax status of religious educational institutions could be revoked,” said Brian Brown, president of the National Organization for Marriage. “It’s already becoming an issue for conscience objectors to participation in same-sex marriage ceremonies [who are] being forced across the country to participate, be fined or lose their business.”
“A lot of Americans understand that is not freedom, and freedom is a two-way street.”
According to the National Conference of State Legislatures (NCSL), at least 17 states introduced legislation creating or altering existing laws affecting religious freedom. Two states this year passed Religious Freedom Restoration Acts, while some states took other actions to strengthen religious-liberty protections.
Today, 21 states have Religious Freedom Restoration Acts — the latest state to pass its own Religious Freedom Restoration Act (RFRA) was Arkansas, which passed its law the day after Indiana made changes to the RFRA it had enacted earlier in the year.
Most states have ended their legislative sessions as of June. However, Jonathan Griffin, who tracks religious-freedom legislation at the NCSL, said the passage of the two RFRA laws in Arkansas and Indiana is consistent with the pace of new state RFRA laws since the federal government enacted the national one in 1993.
“Since 2010, six states have passed it,” he said. While RFRA has gained more attention this year, especially due to the media backlash over Indiana’s RFRA, Griffin said, “I don’t really know if that had an effect on the other states.”
Austin Nimocks, senior counsel with the public interest firm Alliance Defending Freedom, believes that this legislation will continue to be pursued regardless of the Supreme Court’s decision on state marriage amendments in late June.
“Religious freedom is an important issue that goes well beyond questions of marriage, same-sex marriage or whatever the Supreme Court may decide,” he said, pointing to another case involving an American-Indian tribe’s use of feathers from eagles — a bird protected by federal law as an endangered species — for their tribal religious ceremonies.
In Louisiana, Republican Gov. Bobby Jindal took executive action to prohibit state agencies under the executive branch from discriminating against persons who act in accordance with religious beliefs that marriage is the union of one man and one woman.
“Our executive order does not create new law. It protects religious liberty, as provided [for] in our Constitution,” Jindal spokesman Mike Reed told the Register.
The governor issued the executive order after a state house committee refused to move forward the Louisiana Marriage and Conscience Act, which would have extended the protections more broadly in law and would have covered government officials overseen by the legislative and judicial branches.
“We were disappointed the bill did not make it through the legislative process, but the next best option to protect religious liberty was this executive order, which prevents state agencies from discriminating against people or entities on the basis of a religious belief in traditional marriage,” Reed said.
Nimocks said it is “reasonable to expect” that more executive and legislative actions similar to Jindal’s will be seen in the future.
In North Carolina, the Senate voted on June 1 to override Republican Gov. Pat McCrory’s veto of a law that would have allowed North Carolina court officials with a “sincerely held religious objection” to performing a same-sex civil marriage the option to withdraw from all marriage duties for a period of six months. The chief district court judge or the county register of deeds would fill in in such instances.
The governor vetoed the bill on the basis that public officials have a duty to the U.S. Constitution, while the proponents of the bill in the legislature argued that government employees should have an accommodation for their religious beliefs.
“Just because someone takes a job with the government does not mean they give up their First Amendment rights,” state Sen. Phil Berger, R-Rockingham, the president pro tem, was reported to have said during debate on the veto override.
The Diocese of Raleigh supports the magistrate bill, spokesman William Atwell told the Register.
“The diocese hopes that in general people of faith are able to live out that faith in all of life,” Atwell said, “so that they don’t just have the ability to worship in that Church, but that they have the ability to live that in their daily life, in their jobs, and not have to check that faith at the door.”
Texas and Alabama
Colorado, Georgia, Hawaii, Maine, Michigan, Nevada and North Carolina had legislation before their state legislatures that would add a RFRA or other religious protections to their laws. All but Michigan and North Carolina adjourned by publication time.
Oklahoma, South Carolina and Texas had been considering legislation this year that would amend or supplement the protections in their existing RFRA law, but those state legislatures have now adjourned.
The Texas Legislature passed the Pastor Protection Act, with overwhelming bipartisan majorities, which bars the government from forcing clergy or churches to perform marriages or ceremonies that violate their teachings on marriage. That legislation has headed to Republican Gov. Greg Abbott for his signature.
Alabama has legislation, passed by the state senate and now before the house, that scraps marriage licenses altogether in favor of a contract filed with a probate judge that states the contracting parties are legally authorized to be married.
Caleb Dalton, a litigation counsel with Alliance Defending Freedom, said it remains to be seen what religious-liberty impact will arise should the Supreme Court declare a constitutional right to same-sex “marriage.” However, he said the government’s oral arguments in front of the high court reveal some clues.
“It will be an issue at least for religious educational issues and their nonprofit status,” Dalton said. “The nonprofit status of other organizations could also be jeopardized … but we know that the solicitor general is only scratching the surface when he talks about the religious-liberty impact.”
Peter Jesserer Smith is the Register’s Washington correspondent.