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Senate Republicans Zero in on Religious Freedom Bills

The next Texas legislative session is almost a year away, but Senate Republicans are already zeroing in on proposals to bolster legal protections for religious opponents of same-sex marriage.

Sen. Joan Huffman, chair of the Senate Committee on State Affairs, listens to testimony on the affirmation of First Amendment liberty protections in Texas from invited witnesses on Feb. 17, 2016.

The next Texas legislative session is almost a year away, but Senate Republicans are already zeroing in on proposals to bolster legal protections for religious opponents of same-sex marriage after its legalization by the U.S. Supreme Court last year.

At a hearing of the Senate State Affairs Committee on Wednesday, some Republicans appeared to endorse a piecemeal approach to passing legislation shielding religious objectors to same-sex marriage instead of pushing for more comprehensive state constitutional amendments like Indiana’s embattled “religious freedom” law. 

Republican state Sen. Joan Huffman of Houston appeared to support prioritizing “targeted pieces of legislation” like last session's Pastor Protection Act, which codified protections for clergy members who refuse to conduct same-sex marriages, “rather than to try to redefine anything.”

“I think that was an approach that would be a path for the Legislature, for this committee to examine,” said Huffman, who chairs the committee. “I don’t think we really took that push in the last Legislature.”

Piecemeal measures could include protections for faith-based adoption agencies that refuse to place children with same-sex couples, tax accommodations for religious organizations and housing policies at religious schools.

LGBT rights activists have described some of those proposals as “license to discriminate” laws. At Wednesday’s hearing, they reiterated that state lawmakers are still required to strike a balance between religious rights and equal rights, particularly when it comes to behavior by government employees.

There is nothing in the U.S. Supreme Court’s ruling on same-sex marriage that “deprives someone of their right to religious liberty,” Rebecca Robertson, legal and policy director of the American Civil Liberties Union of Texas, told the committee. But “people who are acting on the behalf of the government are not free to impose their religious beliefs,” she added.

The debate over those proposals is part of a large balancing act taking place in Texas and around the country between religious liberty and LGBT rights.

The fight in Texas — which picked up strength after the high court's ruling on same-sex marriage — was spotlighted in November when conservative activists in Houston helped overturn a local ordinance, better known as HERO, that would have established protections from discrimination for gay and transgender residents among several other classes.

Texas has long had statewide protections on the basis of religion. The Religious Freedom Restoration Act, passed in 1999, is designed to ensure government cannot “substantially burden” free exercise of religious beliefs.

In the previous legislative session, Republicans attempted to broaden those protections, filing several proposals — which were likened by opponents to the Indiana law — that failed to gain traction.

At Wednesday’s hearing, Bill Hammond, chief executive of the Texas Association of Business, warned lawmakers against picking up that mantle in the next legislative session. He recalled Indiana’s religious freedom law, which opponents have claimed enables discrimination against the LGBT community, and the economic fallout that state faced when that law came under scrutiny.

Huffman retorted that the committee’s charge was to focus on religious protections and “not to discriminate.”

“Perception is probably greater than the facts, and that would be the perception around the country that Texas is no longer a welcoming state,” Hammond responded.

With marriage decided, LGBT rights activists had made clear the next frontier in their fight is pushing for more protections against discrimination that would apply to employment, housing, public accommodations and businesses that serve the public.

Texas has no statewide nondiscrimination law that protects LGBT residents, and Democratic proposals on the issue are virtually dead on arrival in the Republican-controlled Legislature. This has left Texas with a patchwork of protections.

As of November, there were 10 Texas cities with populations of more than 100,000 that had some rules or legislation in place to protect residents or city employees based on sexual orientation or gender identity. Cities like Dallas, Austin and Fort Worth have had comprehensive ordinances offering LGBT residents some degree of protection against discrimination in employment, housing and public areas for at least a decade.

The November vote made Houston, the nation’s fourth-largest city, one of the largest metros without an ordinance banning discrimination on the basis of sexual orientation and gender identity.

Despite the heightened attention on the issue — particularly by Lt. Gov. Dan Patrick who weighed into the HERO fight and asked the state affairs committee to consider the religious liberty protections in light of local ordinances — Republicans on the committee balked at endorsing a statewide pre-emption of similar ordinances when it was proposed by conservative activists.

State Sen. Craig Estes, R-Wichita Falls, was the most vocal on the matter, saying businesses should be allowed to “choose who to do business with.”

At the hearing, state Sen. Rodney Ellis, D-Houston, rebuffed similar arguments by pointing out they echoed arguments used to push back on the civil rights movement. Ellis questioned how lawmakers could draw up legislation allowing government officials to opt out of doing their jobs when it comes to same-sex couples, but not couples of different races.

“How would you get around one but not the other?” Ellis said.

Disclosure: The Texas Association of Business was a corporate sponsor of The Texas Tribune in 2013. A complete list of Tribune donors and sponsors can be viewed here.

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