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Joshua Houston Written Testimony - Senate Committee on State Affairs, February 17, 2016

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Written testimony submitted by Joshua Houston, General Counsel for Texas Impact and the Texas Interfaith Center for Public Policy, to the Senate Committee on State Affairs at the interim hearing discussing religious liberty, February 17, 2016.

Senate Committee on State Affairs

Interim Charge #1 Relating to Religious Liberty

Testimony of Texas Impact/Texas Interfaith Center for Public Policy

Joshua Houston, General Counsel

February 17, 2016

“The First Amendment…gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities.” — Judge Learned Hand[1]

On behalf of Texas Impact’s board of directors, our thanks to the committee for the opportunity to submit testimony on this interim charge relating to religious liberty. As an organization that represents many different denominations and faiths, Texas Impact celebrates the First Amendment as a model for the world. The Founding Fathers pioneered the radical idea that all religions should be equal before the law, and the religiously vibrant and diverse nation we live in today shows the genius in their vision.

Texas Impact’s testimony focuses on three issues relevant to the Committee’s charge. First, we will address the two religion clauses of the First Amendment and discuss why attention to both is necessary to protect the religious beliefs of Texas’ highly diverse religious communities. Second, we will review steps Texas has taken to uphold First Amendment freedoms, and offer thoughts about the success of these initiatives. Finally, we will recommend three principles that we believe should serve as guideposts for policymakers in any issue involving religion, whether the issue is a local ordinance, a state policy, or a federal initiative.

In our testimony, we refer to our publication Equal Liberty: Ensuring Religious Freedom for All Texans. In light of growing tension and increasingly legislative discussion regarding religious liberty, Texas Impact undertook a detailed review of the history of the First Amendment and its jurisprudence. Our goal was to produce materials that would provide our members and others with a common foundation for evaluating political discourse related to religious freedom, and to identify principles that could guide Texas’ affirmation of First Amendment freedoms going forward. We hope you find the information in it useful.

1. First Amendment Religious Freedoms and American Religious Diversity

As an organization that convenes and builds collaboration among diverse faith traditions, Texas Impact—and the organizations like it in most other states—exist to serve missions that would not be possible in many other countries. The free market for religion in the United States bears out James Madison’s prediction that “we are teaching the world that great truth that governments do better without kings…and Religion flourishes with greater purity without than with the aid of Government.” Our publication provides significant background on Madison, Jefferson, the creation of the First Amendment, and the disestablishment movement within the states.

With respect to your charge, Texas Impact would emphasize the co-equal nature of the two religion clauses. While much of the current policy debate seems to revolve around free exercise, both clauses are equally important to protect religious liberty and restrain government from forcing people of faith to violate their sincerely held beliefs.

The Establishment Clause is vital to protecting the sincerely held beliefs of religious minorities. Ensuring that government policy has a secular purpose, does not favor one religion over another, and avoids excessive entanglement protects religious minorities from government’s picking “winners and losers” among faith traditions. It also protects taxpayers from being forced to sponsor faiths to which they do not subscribe. Finally, it protects government from being unduly influenced by any one system of religious belief.

The Free Exercise Clause is of equal importance, protecting most kinds of religious expression. While it is appropriate for government to show a compelling interest and use the least restrictive means when regulating any type of religious conduct, it is imperative that the religious expression of every faith be protected equally, and that the religious conduct of one group or individual not be allowed to harm or disadvantage another group or individuals. In explaining the limits to individual liberty, as the law professor Zechariah Chafee said so aptly, any individual’s liberty to swing his arms wildly ends where another’s nose begins.

Texas Impact’s board has expressed concern that individuals and groups are claiming the need for their religious conduct to be affirmed by government even if those actions adversely affect other religions or groups. As we discuss in our report, discrimination against one faith to satisfy the religious needs of another faith is precisely what the framers of the Constitution intended to prevent. Religious freedom for all is maximized by ensuring that no individual, organization, or business enjoys “special rights.” A special right amounts to state sanctioned discrimination.

Although the two religion clauses are clear and concise, we recognize that there are different schools of thought related to their interpretation. Our report identifies three philosophies of religious liberty—all of which probably will be represented in someone’s testimony to this committee. Accommodationists argue that because religion has held an important place in American society, government may act in ways that favor religion over irreligion. Some subscribers to this philosophy would go so far as to argue it is permissible for government to favor Christianity over other faiths. In contrast, strict separationists argue that religion and government should be kept as far apart as possible. Some proponents of this approach are people of faith who believe that separating religion and state benefits both. Others, whether religious or secular, take the extreme position that religion should be removed from public life, and left entirely to the private realm of the individual, family and religious organization.

Texas Impact’s subscribes to the philosophy of neutrality. Neutrality effectively calibrates the principles of the Establishment and Free Exercise Clauses. A neutral approach dictates that government must not favor one religion over another, nor may it favor religion over no religion. Not exercising faith must be an option for an individual to truly possess an equal right to free exercise. If a democratic government is to be the government of all, then no faith can be superior and no individual can be of lesser status. This is significant for individual policymakers: for each elected official’s decision-making to be informed by their own faith, then government, collectively, must be neutral.

II. Religious Liberty Legislation and Policy in Texas

Texas Impact continues to affirm the “compelling state interest test” as the appropriate test for government restraint of individual religious liberty. Our report discusses the legal history of recent Free Exercise jurisprudence, the Supreme Court’s abandonment of the “compelling state interest” test in 1990, the resulting federal Religious Freedom Restoration Act (RFRA), and Texas’ RFRA.

In 1999, the 76th Texas Legislature passed Senate Bill 138 by Senator Sibley, sponsored by Representative Hochberg, the Texas Religious Freedom Restoration Act (Texas RFRA). Texas Impact was a member of what was known as the Texas RFRA Coalition. More than 50 organizations participated in the Coalition, including the Texas Baptist Christian Life Commission, the Christian Legal Society, the American Jewish Congress and the Anti-Defamation League. The Coalition was led by Phil Strickland, a long time Baptist advocate for religious liberty. Texas RFRA effectively calibrates individual rights with compelling governmental interests like health and safety, and the rights of third parties. For example, Texas RFRA protected a Native American child’s right to wear ceremonial long hair despite the public school’s dress code, but it did not provide a defense for the sexual assault of a child by members of the Fundamentalist Church of Jesus Christ of Latter Day Saints at the Yearning for Zion Ranch near El Dorado, Texas. Texas RFRA protects the rights of people of all faiths to religious expression without establishing special rights for any group or individual.

Texas RFRA has been a success largely because it was developed through a robust stakeholder process. In addition to securing consensus within the Texas RFRA Coalition, the authors considered the concerns of other stakeholders such as cities, counties, preservation boards, and prison administrators. In congressional testimony later that year, Representative Hochberg testified to the effectiveness of Texas’ stakeholder process in supporting calibration of individual religious liberties with the liberties of others. Hochberg noted that even with such an inclusive process, a few religious groups had pushed for Texas RFRA to create special rights for them, but that then-Governor Bush had wisely rejected their efforts.

Texas also has shown wisdom in its approach to partnering with faith-based organizations through grants, contracts, and other cooperative agreements. Texas intentionally has partnered with faith-based organizations in the delivery of a wide range of social services including things like disaster relief, substance abuse, criminal justice ministries, or the community partner program at HHSC. The state has intentionally valued these partnerships because taxpayer dollars leverage the charitable contributions of the nonprofit sector to enhance our state’s social safety net. Beginning with then-Governor Bush’s faith-based task force in 1996, state policymakers have worked to ensure that faith-based organizations are not disadvantaged in competitive funding opportunities, and that state agency grant and contract administrators are trained to work with faith-based providers. The Interagency Coordinating Group’s Equal Treatment Training program is a great example of the resources and training available to state agencies and is available on OneStar Foundation’s website under the Faith and Community-Based Initiative.

Equal Treatment policies have made it possible for the state to contract with explicitly religious organizations to provide services to needy Texans, while preventing proselytizing and other excesses. Under Texas’ charitable choice policies, Texans today have the opportunity to receive services through faith-based providers without being required to profess personal faith, and lawmakers and taxpayers can be sure the services are accountable and high quality. House Bill 2718 passed in the 84th legislative session is an excellent example of this.

Three Principles for Upholding Equal Religious Liberty

To uphold the religious liberty of all Texans, Texas Impact recommends the application of three principles to any legislation affecting religion:

  1. Government must not prefer or disadvantage one faith relative to another faith, or no faith at all.
  2. Government must not force any person to act against their conscience unless there is a state interest that compels it.
  3. Government must not permit adherents of one faith to harm non-adherents as an expression of faith.

With respect to any governmental action affecting religion, all three principles must be applied. For instance, when considering a religious exemption, attention is drawn to a particular individual, organization, or business, and whether the state has a compelling state interest to curb liberty (Principle 2). However, it is equally important to consider if the proposed exemption would place a burden on others (Principle 3), and whether the exemption would be administered neutrally among different faiths (Principle 1). For more discussion see Cutter v. Wilkinson, 544 U.S. 709, 721 (2005).

For example, in Estate of Thornton v. Caldor, Connecticut had provided a statutory right for an employee to take off from work the Sabbath day of the employee’s choosing. The Supreme Court struck down the statute because it favored Sabbatarians over non-Sabbatarians (Principle 1), and because it placed a burden on the employer and other employees (Principle 3). Connecticut failed to act neutrally, thereby creating a special right. Legislating religious accommodations requires precision to maximize individual religious liberty for everyone—including the religious liberty not to adhere to the faith of another.

Texas Impact urges lawmakers to consider that the most effective way to foresee third party implications is to provide stakeholders with a robust process, as the Legislature did in developing Texas RFRA in 1999. In such a large, diverse state as Texas, the possible stakeholders to any public policy are many. Texas Impact encourages lawmakers to provide ample time for stakeholder processes, and to ensure that processes are designed as inclusively as possible.

Applying Texas Impact’s three principles to legislative policy development would uphold the Founders’ values of disestablishment and free exercise. The Founders built religious freedom using the architecture of two twin buttresses compressing against one another, using the tension to hold up the structure of religious liberty. If the First Amendment contained only the Free Exercise Clause, then there would be a risk of theocracy arising through the democratic process. If the First Amendment contained only the Establishment Clause, then there would be a risk of purging religion from the public square. Fortunately, our founders prevented both of these outcomes.

We appreciate the opportunity to provide this testimony, and we look forward to working with you on this very important interim charge.

[1] Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 710 (1985)(C.J. Berger writing for the Court quoting Justice Hand in Otten v. Baltimore & Ohio R. Co., 205 F. 2d 58, 61 (CA2 1953)).