‘Substantial’ difference in proposed RFRA language

AUSTIN—Baptists helped craft the Religious Freedom Restoration Act at the national level and secured its passage at the state level in Texas. But some Texas Baptists are leery of language in a proposed RFRA-based state constitutional amendment.

The Baptist Joint Committee for Religious Liberty helped create a broadly based coalition that led to passage of the federal Religious Freedom Restoration Act of 1993. After the Supreme Court ruled in its 1997 City of Boerne v. Flores decision that RFRA applies only at the national level, the Texas Baptist Christian Life Commission played a key role in guiding a state version of RFRA into law.

State Sen. Donna Campbell, R-New Braunfels, and State Rep. Jason Villabla, R-Dallas, have introduced resolutions calling for adding RFRA language to the Texas Constitution.Both the state and national versions of RFRA say, “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” unless it is necessary to further a compelling government interest and provided it uses the least restrictive means to further that interest.

Last fall, three Texas Baptist pastors—Kyle Henderson from First Baptist Church in Athens, Brent Gentzel from First Baptist Church in Kaufman and Kris Segrest from First Baptist Church in Wylie—urged fellow church leaders to support a call to amend the state constitution to include language modeled after RFRA. 

Adding RFRA-based protections to Article 1, Section 6 of the Texas Constitution’s Bill of Rights would raise the threshold, so any state legislative session could not overturn it, they told a group of pastors who met in Waco on the eve of the Baptist General Convention of Texas annual meeting.

A Texas state senator and representative have filed similar—but not identical—bills in the Texas Legislature regarding a constitutional amendment on religious freedom.

Senate Joint Resolution 10

Sen. Donna Campbell, R-New Braunfels, introduced Senate Joint Resolution 10. The resolution, which proposes a constitutional amendment, states: “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 government interest and is the least restrictive means of furthering that interest. For purposes of this subsection, the term ‘burden’ includes indirect burdens such as withholding benefits, assessing penalties, and denying access to facilities or programs.”

House Joint Resolution 55

State Rep. Jason Villabla, R-Dallas, introduced House Joint Resolution 55, which contains slightly different language and would bar government from burdening “in any way a person’s free exercise of religion.” Villabla’s version also includes language that specifically singles out homeowners’ associations.

Both measures have one thing in common: They lower the threshold from “substantially burden” to “burden.” And the distinction between “burden” and “substantially burden” means the difference between an inconvenience that invites litigation and a significant infringement on free exercise of faith, a Texas Baptist attorney and public policy expert insisted.

“The Christian Life Commission helped develop the Religious Freedom Restoration Act that is now law in Texas, and we support moving the current RFRA statute into the Texas Constitution,” said Kathryn Freeman, CLC director of public policy. But, she added, any constitutional amendment needs to retain the original RFRA language.

Original language

“Our desire is to help influence this legislation in a manner that protects the rights of all Texans to practice their religion responsibly without government interference. As a result, it is important that we keep the current RFRA language intact,” she said.

As originally drafted, RFRA maintains the proper balance between the free exercise of religion and no government establishment of religion, she noted, as well as a balance between individual rights and state interests.

For instance, RFRA provided sufficient protection for an Orthodox Jewish synagogue that meets regularly in the living room of a North Dallas homeowner, she noted. A judge dismissed a lawsuit against Congregation Toras Chaim brought by some neighbors who claimed the religious services violated deed restrictions of the property owner’s association.  

“The Dallas case involving the Orthodox Jewish congregation demonstrates the ‘substantially burden’ test is not too high a threshold to provide protection,” Freeman said.

Henderson likewise voiced support for a state constitutional amendment that adheres strictly to the language of RFRA as passed in 1993.

“The closer is to the national law, the more likely it is to pass constitutional muster,” he said. “We need to do this together. The original law passed with broadly based support, and the state constitutional amendment needs to be similarly broad-based in its appeal.”

‘Burden’ vs. ‘substantially burden’

Some supporters of the proposed constitutional amendment—who want “substantially burden” changed to “burden”—cite a range of national issues regarding the religious rights of business owners, ranging from the contraceptive mandate in the Affordable Care Act to whether bakers and florists should be compelled to offer their services for same-sex weddings.

Freeman underscored the proven effectiveness of RFRA as it stands and suggested a need to “keep the long view” in regard to protecting religious liberty rather than react to issues of the moment.

“Religious liberty is a bedrock principle of Baptists and of the United States. It impacts many issues but should not be a tool used to forward any one political agenda,” Freeman said.

Editor’s Note: The sixth paragraph from the end was edited after originally posted to correct “substantially burden,” not “significantly burden.”