Some legal issues are just complicated. Donna Campbell, the Republican senator from New Braunfels, learned this the hard way during Monday’s State Affairs Committee hearing, when her resolution to add a constitutional amendment protecting religious freedom garnered intense support, harsh scrutiny, and concerns about abortion rights, the Westboro Baptist Church, and goat slaughter, most of which the senator appeared not to have anticipated.
Campbell’s resolution would let voters decide in November whether to amend the state constitution to declare that “government may not substantially burden a person’s or religious organization’s Freedom of Religion.”
The concerns about the measure, from fellow senators and from witnesses, fell into two broad categories. On the one hand, it’s arguably redundant. The right to free exercise of religion is already enshrined in both the U.S. Constitution and Texas’s. As Leticia Van De Putte, a Democrat from San Antonio, noted during the hearing, Texas reiterates that commitment with laws on the books protecting religious freedom.
Namely, there is the Texas Religious Freedom Restoration Act , which was passed by the legislature in 1999 and prevents a government agency from “substantially burdening a person’s free exercise of religion” unless the government has “a compelling governmental interest to do so.” The existing law is fairly robust, and has provided protection to at least one Texas citizen wishing to practice their religion. In 2009, the U.S. Fifth Circuit Court of Appeals used the criteria of “compelling government interest” established in the Religious Freedom Restoration Act to uphold the right of Jose Merced, a Santeria priest from Euless, Texas, to slaughter goats in his backyard as part of a religious ritual, an activity prohibited by municipal code. The court held that Merced’s “free exercise of religion” trumped the “compelling government interest” to prohibit the slaughter of goats in urban areas.
Campbell responded that her resolution is an attempt to put the existing statute in “a more formidable position, which is the state constitution.” And that led to the second category of skeptical queries about her resolution: to the extent that it would strengthen religious freedom—that is, to the extent that it's not redundant—it might go farther than anyone, including Campbell, would like.
Witnesses and senators offered several examples.
Van de Putte, the chair of the senate's Committee on Veteran’s Affairs and Military Installations, voiced concern about the possibility of a constitutional amendment that would strengthen the rights of the Westboro Baptist Church to protest military funerals. (The church, which is from Kansas, is notorious for protesting at funerals of soldiers and victims of high-profile national tragedies; they announced Monday that they would protest the funerals of the victims of the Boston Marathon bombing. Last August, President Obama signed into law a bill that requires that protesters stay 500 feet away from military funerals, a measure aimed directly at inhibiting the radical church’s protests.)
“While I know everyone here represents what I would call traditional religious groups, there are religious groups that have very, very different fundamental beliefs. Could this resolution lead to our inability to protect their religious beliefs from infringing on our military funerals?” Van De Putte asked.
Campbell seemed to miss Van De Putte’s point. “There is a law right now that says that protesters have to say a certain number of feet away,” she said.
“Well, this is a constitutional amendment,” explained Robert Duncan, the Republican from Lubbock and chair of the state affairs committee. “That would interfere with [the law preventing protesters from coming within 500 feet], because we’re putting a ‘burden’ on [protesters] by making them stay away.”
But perhaps the most unexpected objection of the day—particularly for vocally pro-life Campbell—came from Joe Pojman, the executive director of the Texas Alliance for Life, who said his group opposed the resolution out of concerns that “abortion would become a religious right and taxpayers could be forced to pay for abortions.”
His reasoning was that the language of the resolution—it would protect action or inaction “motivated by a sincerely held religious belief”—was too broad. “We do not oppose the concept of a religious freedom amendment,” he testified. “Rather, we are concerned that a future court could misconstrue the expansive language ... our concern is that abortion will become a religious right.”
“You know I’m on the side of life, but this bill isn’t about abortion, it’s about religious freedom,” said Campbell. “Now, granted, I don’t know about the Santeria priest, but we aren’t talking goats here ... I’m unfamiliar with any religious doctrine that supports the right to abortion.”
“Senator, it only needs to be a ‘sincerely held belief’ that a person has a right to abortion, and that’s why we recommend that you put abortion neutralizing language in the bill,” replied Pojman.
There were some witnesses who testified in support of the resolution. Jeff Mateer, general counsel for the conservative Liberty Institute, said that he believed the constitutional amendment would not afford Westboro Baptists more latitude, and that the amendment was desperately needed. “There is a war raging on in our country right now that threatens to eradicate religious freedoms. The hostility against religious liberty has reached an all-time high. The attacks are increasing, and they are unprecedented,” he said. “Our statute, although it does provide protection, doesn’t provide enough protection.”
But more witnesses, even the conservative ones, remained skeptical. Pojman had also argued out that one piece of information provided by Campbell—she had told the House that 17 states have similar religious freedom acts, either in their constitutions or in their laws—was, while not technically incorrect, slightly misleading. “Turns out one state has it in their constitution, while sixteen have it in statute,” said Polman. His implication seemed to be what others had said, both on the dais and at the witness table: given that Texas already protects religious freedom, in both its constitution and its statutes, Campbell’s resolution isn't necessary, and might cause some unanticipated problems.
The resolution was left pending in the committee. If it passes and wins approval from two-thirds of the legislature, the voters would be