Loose Liberties: Texas Bill Would Guarantee Right To Discriminate

Less than two weeks after the midterm elections, victorious social conservatives have already begun to fight for a dangerously expanded definition of religious liberty. Texas State Sen. Donna Campbell (R-New Braunfels) may have beaten them all to the punch: She has proposed a bill that would grant business owners the right to discriminate against LGBT customers.

Senate Joint Resolution 10, filed Monday, has been written expressly to allow anti-gay discrimination.

“No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship,” it reads, and adds, “Government may not burden an individual’s or religious organization’s freedom of religion or right to act or refuse to act in a manner motivated by a sincerely held religious belief unless the government proves that the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest.”
 If passed, the bill would even prohibit the government from creating “indirect burdens” by “withholding benefits, assessing penalties, and denying access to facilities or programs” to individuals or groups that engage in discriminatory practices.

The Advocate reports that Texas already has a state version of the federal Religious Freedom Restoration Act (RFRA). Campbell’s bill would expand that law, which critics (including some in the Religious Right) have already condemned for its broad language. It’s evident that despite that generous RFRA, Campbell isn’t confident that it guarantees the right to discriminate, and seeks to ensure that Texas fundamentalists have free reign to turn away anyone they please.

It’s also likely that she intended to create a loophole around non-discrimination ordinances in several major Texas cities. According to Towleroad, Campbell has publicly objected to such ordinances in the past, claiming that they are evidence “Judeo-Christian values are under attack.”

Her dubious legislative complement to Texas’ RFRA is only the latest tactic to emerge out of a coordinated national campaign to redefine religious liberty and restrict LGBT rights.

During the last legislative session, several states attempted to pass “religious freedom” bills. With the exception of Mississippi, which eventually passed a highly modified and less problematic version of the law, all failed, thanks in large part to the public backlash that greeted each bill. That was most evident in Arizona: Its Republican governor, Jan Brewer, eventually vetoed a “religious freedom” bill after it was condemned by Arizona’s Senator John McCain and panned by local business owners as a bad advertisement for the state.

Campbell’s bill is the first attempt this legislative session to create a right to discriminate. It will not be the last. The Religious Right, fronted by groups like the Alliance Defending Freedom, has carefully promoted the message that public accommodation laws are the latest and most pressing threat to religious liberty. They’ve trotted out people like Aaron and Melissa Klein, who closed their Oregon bakery after violating anti-discrimination laws, as evidence that there’s a nefarious agenda at work to persecute Bible-believing Christians.

That nefarious agenda, of course, isn’t actually malicious at all; the rights of others pose no real threat to your religious liberty. If you open a business, you’re required to serve the public. Your freedom to express your religious beliefs does not include the privilege to violate the rights of your neighbors. Your discriminatory beliefs do not merit priority status simply because they are backed with religious justifications.

Given the outcome of Texas’ recent elections, Campbell’s bill has a better than average chance of becoming law. If it does, it’ll inevitably drag the state into an extended legal battle. As they head into this year’s session, state legislators in Texas and elsewhere should critically consider if their extremist agenda is worth the potential cost.