When Texas first passed its Religious Freedom Act in 1999, Scott Hochberg, then a Democratic state Representative, found a strange ally. Texas
Right to Alliance for Life, a pro-life organization still in existence, had consistently stood opposite Hochberg's legislation never testified for Hochberg's legislation -- their ground for common support was little, and shrinking.
But when Texas
Right to Alliance for Life saw the language of the bill Hochberg had helped bring to debate, they realized that the legislation landed in the thin overlap between their beliefs and the left side of the legislature.
"I can't count any pieces of legislation where Texas
Right to Alliance for Life and I were testifying on the same side," Hochberg, who served a decade two decades in the House, told Hair Balls. "[Texas Right to Alliance for Life] has expressed legitimate concerns that if [the RFRA's] language is in the constitution, and if the state later passed stricter anti-abortion laws, people will be able to exempt out of them."
That is, if such language ended up in the state constitution, doctors would effectively exempt themselves from whatever abortion restrictions may be on the horizon.
The bill passed, with similar ones coming in dozens of states across the nation, following the federal example. Now, though, there remain certain groups that are still somehow unsatisfied. Because while RFRA remains on the books -- and while it's been upheld by the Fifth Circuit Court -- a claque of far-right organizations are trying to get Texas to become the first state to paste even broader language into its constitution.
The newest attempt in question can be found in SJR 4, a proposed amendment brought forth last month by state Sen. Donna Campbell, a Republican out of New Braunfels, and pushed largely by the hard-right Texas Values organization.
As it is, the language of the bill is largely anodyne. It's only a few paragraphs long, and highlights the fact that government should, in effect, refrain from burdening those who claim religious exemptions:
Government may not burden a person's or religious organization's Freedom of Religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be burdened unless the government proves it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A burden includes indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.
However, it's the new language of the bill that prompted Hochberg, when a similar bill was proposed in 2011, to bring up enough questions to keep the amendment from moving forward.
"This is a clever way to basically let people ignore other compelling public interests that are typically
not now weighed against religious interests," said Hochberg, noting both inclusive housing laws and anti-bullying legislation that could take a hit under this amendment. "There were a couple of us who stood up in opposition and questioned what this was all about in the last legislative session. [Texas Values] is the same organization that has a history of a heavy antigay bias involved, so when you hear that makes you start looking as well." While this amendment may spur those who would subscribe to an anti-tax or anti-secular-law religion, the language is largely unnecessary. Texas's RFRA has been upheld by both the Fifth Circuit and the Texas Supreme Court, leaving this amendment, at the least, redundant.
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"Texas has had [the RFRA] since 1999, and we feel it works well as both sword and shield," Justine Fanarof, the Anti-Defamation League's Southwest Civil Rights counsel, told Hair Balls. "It's not necessary to change what's serving Texans well."
Because this is a proposed amendment, passage will require support from two-thirds of both chambers. Still, while such a requirement makes passage unlikely -- and while a similar measure failed in 2011 -- Hochberg acknowledges that those in support of such broad, misleading language may yet have the upper hand.
"They say in politics, 'If you're explaining, you're losing,'" Hochberg said. "My mother saw press coverage of the bill, and e-mailed me and said, 'You need to explain this to me, because it looks pretty good to me.' It looks pretty tame and harmless. But that's just the story they're telling."