FFRF awarded Nicholas $1,000.
By Nicholas Bratsos
House Bill 4497 is currently in committee in the Texas Legislature. The bill forbids the state from terminating, excluding or taking any similar adverse action against a person for denying individuals marriage-related goods and services, such as wedding planning, floral arrangements, and cake or pastry artistry, out of a “sincerely held religious belief or moral conviction.” Importantly, such belief or moral conviction is exclusively defined as “the belief or conviction that marriage is or should be recognized as the union of one man and one woman.” The bill provides a legal defense for individuals who are terminated, excluded, etc., by the government for exercising their sincerely held religious belief or moral conviction.
Texas House Bill 4497 does not properly balance religious rights and the civil and equal protection rights of members of the public most likely to be refused goods and services, namely, LGBT individuals. There are numerous reasons why this bill, and similar bills discriminating against LGBT individuals, are unlawful. First, this bill violates the Establishment Clause, which states that “Congress shall make no law respecting an establishment of religion.” This bill expressly provides that the state will allow discriminatory acts perpetrated because of a particularly defined religious belief or moral conviction. Second, this bill and others like it empower suppliers to unlawfully discriminate against LGBT individuals.
First, courts typically use the Lemon test to analyze whether statutes violate the Establishment Clause. The Lemon test examines: 1) the purpose of a state action; 2) the effect of a state action; and 3) whether the action fosters an excessive entanglement with religion. This test was designed to analyze the “three main evils against which the Establishment Clause was meant to afford protection: ‘sponsorship, financial support, and the active involvement of the sovereign in religious activity.’” Justice Sandra Day O’Connor synthesized this test into what is called the “endorsement test,” which simply asks whether “a reasonable observer [believes] a challenged governmental practice conveys a message of endorsement of religion.”
Texas House Bill 4497 violates the Establishment Clause of the First Amendment. The bill fails the Lemon test because: 1) the purpose of the bill is to express the state’s acceptance of vendor discrimination against LGBT couples; 2) the effect of the bill will likely be rampant, explicit denial of wedding goods and services for LGBT couples, and, potentially, growing division and animosity towards homosexuals in general; and 3) the bill explicitly aligns the state with one particular religious belief, signaling an approval of one faith over others. Further, the bill explicitly and unequivocally conveys a message of endorsement of one particular religious belief. For all of these reasons and more, legislation such as this presents a dangerous step toward state-endorsed religion, the very offense that the Establishment Clause was meant to protect against.
Second, Texas House Bill 4497 infringes on the Equal Protection rights of LGBT individuals. Equal Protection violations are subject to strict scrutiny review if legislation causes “prejudice against discrete and insular minorities.” Notable factions of the population have been denied this so-called “suspect class” designation, but in some cases the court apparently does not sufficiently trust the political process to completely foreclose protection for certain groups. In Romer v. Evans, for example, the court prohibited the Colorado Legislature from passing a law that would have prevented any city, town or county from taking any legislative action to recognize LGBT individuals as a protected class. Importantly, the court stated that it was a fair inference that the “broad language of the [law] . . . deprives gays and lesbians even of the protection of general laws and policies that prohibit arbitrary discrimination in governmental and private settings.” Romer later provided guidance in Lawrence v. Texas, which struck down the criminalization of sodomy, and eventually Obergefell v. Hodges, which struck down state bans on gay marriage.
Like the prejudicial legislation that has come before it, House Bill 4497 unjustly discriminates against LGBT individuals. Although homosexuals have not been held as a “discrete and insular minority,” like Romer, Texas will need a more refined bill that fairly balances the religious rights of individuals and the Equal Protection rights of the LGBT community. The bill, as it is written, is unnecessarily broad, as protecting the belief that marriage should be the union of one man and one woman does not require allowing suppliers to deny gay couples wedding goods and services; the baker need not attend the ceremony, celebrate at the reception, or otherwise condone the marriage. Those with sincerely held religious beliefs may continue to advocate that same-sex marriage should not be condoned, but they may not use legislation as a weapon in doing so.
Religious refusal laws strive to protect religious convictions that enrich and fulfill many peoples’ lives. But, protection of religious belief does not require that the state enforce it.
Indeed, as Justice Kennedy observed in Lawrence, for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives, however, the issue is whether the majority may use the power of the state to enforce these views on the whole society.
Overall, religious refusal laws serve to maintain division in our society and allow for discrimination against vulnerable populations. These laws, with the majoritarian bias underlying them, have the potential to effectuate real citizenship harms. LGBT individuals’ political and social standing will be jeopardized for simply exercising constitutional rights.
Nicholas, 25, is a third-year law student at the University of Wisconsin-Madison. He also attended UW-Madison as an undergrad, finishing with a degree in psychology and legal studies/criminal justice. He moved to Wisconsin in 2013 from Salt Lake City. “Growing up as a religious minority in a heavily religious community made me keenly aware of secular marginalization, and led me to be involved with the AHA student organization in undergrad,” he writes. He hopes to pursue a career in civil rights activism.