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Walk carefully toward new ‘religious freedom’ laws

Lt. Gov. Dan Patrick has directed the Texas Senate State Affairs Committee to recommend ways the Legislature can further protect Texans’ “sincerely held religious beliefs” when lawmakers next convene in January 2017. With that charge in hand, the committee met last week to hear arguments for and against measures that would expand as well as shield religious freedoms.

Federal and state laws — the congressional Religious Freedom Restoration Act of 1993 and the Texas Religious Freedom Restoration Act, passed in 1999 — already protect the religious rights guaranteed by the First Amendment, and do so without throwing off balance the equally important need to protect competing rights to avoid faith-based discrimination. The legislative journey Patrick wants lawmakers to take next year is an unnecessary one. But since he and his allies appear determined to take it, we urge them to tread the path carefully.

To protect one Texan’s religious liberty is potentially to allow another Texan’s religious discrimination. Conservative Christians, angered by court rulings and nondiscrimination municipal ordinances, and motivated by last year’s Supreme Court decision legalizing gay marriage, want the government to exempt them from following certain laws that protect gay, bisexual and transgender Texans from discrimination. Such laws violate their religious beliefs, they say.

“Religious freedom” legislation could include laws protecting businesses from having to serve or sell to same-sex couples, allowing faith-based adoption agencies to refuse to place children with same-sex couples, exempting religious groups from prohibitions against discrimination in hiring and housing, and allowing public officials and employees to refuse to comply with the Supreme Court’s gay marriage ruling. Whether state lawmakers pass these measures piecemeal — Republican state Sen. Joan Huffman of Houston, chairwoman of the State Affairs Committee, appeared to support this approach during her panel’s hearing on Wednesday — or wrap them in a comprehensive measure, they would risk allowing discrimination cloaked and protected by personal religious beliefs.

What is good for one group of religious believers must be good for all religious believers. Religious liberty for conservative Christians must also mean religious liberty for all Christians, Hindus, Jews, Muslims, Pastafarians and Wiccans — the list goes on. Nor should protecting the religious liberties of some Texans violate the liberties of those Texans who want to live free of religion. This equal applicability of the law is fundamental.

Religious conservatives emphasize the phrase “sincerely held religious beliefs” to try to draw some vague distinction between religious liberty and government-sanctioned discrimination. The demand to be exempted from certain laws — to allow businesses, as Republican state Sen. Craig Estes of Wichita Falls put it, to “choose who to do business with” — is fraught with legal and constitutional dangers. Those who support measures expanding religious liberties underscore that the exemptions they seek are only for laws related to sexual orientation or same-sex marriage. But the logical extension of their arguments opens the door to other forms of discrimination.

At Wednesday’s committee hearing, Democratic state Sen. Rodney Ellis heard in their arguments echoes of similar arguments once used to justify racial discrimination. How would you get around allowing public officials to opt out of doing their jobs when it comes to same-sex couples, Ellis asked, but not couples of different races?

It’s a good question. We await a good answer.

To allow businesses, individuals and organizations to ignore laws that they say their religious beliefs don’t allow them to follow is to invite chaos. They are arguing for the right to let their religious views dictate what the law allows them to do. This not only is contrary to the First Amendment, but it also goes far beyond its guaranteed protections and renders the Constitution a matter of personal choice.

It seems inevitable that lawsuits will follow whatever the Legislature does. Business leaders fear the state could suffer an economic backlash if lawmakers embrace faith-based discrimination.

A delicate balance protects religious freedom and prevents religious discrimination. The call for legislation protecting religious liberty cannot be a call to discriminate.

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