In its professed zeal to protect religious Texans, the state Legislature has included within an increasing number of laws exemptions for those with “sincerely held religious beliefs.” Unfortunately, lawyers remain uncertain about the scope of “religious liberty” that it seemingly protects. One might begin with some practical examples of conduct that are not protected under almost all current readings of the Free Exercise Clause of the First Amendment or the Religious Freedom Restoration Act (RFRA), which is the basis of almost all current litigation involving national law.
Consider Jehovah’s Witnesses who might demand that their children not receive blood transfusions because of their undoubtedly sincere belief that it is the “drinking of blood” that is prohibited by the Bible. There are now multiple cases that reject this claim of parental authority, however sincerely religious it might be, because of the obvious threat to the life of the child. Courts have therefore ordered that transfusions be given. So one should wonder whether a religious parent could invoke a “spare the rod and spoil the child” defense if charged with child abuse; could an abusive husband quote the Bible to defend “chastisement” of his wife for disobedience? One would hope not.
Courts have also been notably inhospitable to individuals claiming that their idiosyncratic religions require the smoking of marijuana. Quite often, the judges reveal their obvious skepticism about the “sincerity” of the religious beliefs.
But an especially important Supreme Court decision in 1990 upheld the law against illegal drug use for participants in well-established Native American religious ceremonies that involved peyote.
No one doubted the sincerity of the beliefs, but the “war on drugs” took precedence, according to six of the justices. It was this decision that triggered the almost unanimous passage of RFRA, which ultimately led the court in the 2015 Hobby Lobby case to adopt the catchphrase “sincerely held religious beliefs” that was seized by the Texas Legislature.
It cannot be the case that all actions are exempted from potential punishment if one can justify them on the basis of a “sincerely held religious belief.” Inevitably, we must pick and choose, with precious little genuine guidance from lawmakers or the Supreme Court.
Ultimately, we rely far more on general cultural norms as to what we wish to tolerate at a given time. Those who support a baker’s refusal to sell a cake to be used in a same-sex marriage are unlikely to be sympathetic if the same baker, quoting another passage of Scripture, refuses to sell a cake to an interracial couple.
It is tempting to think that proponents of “religious liberty” are all politically conservative. That is a mistake.
Consider, for example, the contemporary issue of providing “sanctuary” to undocumented aliens being threatened by state and national policies. Even if one can scarcely ascribe religious sensibilities to the cities that are refusing to collaborate with the national government, that is clearly not the case with regard to members of various churches who might decide that the biblical command to “remember that you were strangers in the land of Egypt” requires standing in solidarity with their threatened neighbors.
Will would-be devotees of religious liberty who are obsessed with issues such as abortion and same-sex marriage be equally sympathetic to claims made by those giving sanctuary to people that some consider to be mere criminals instead of vulnerable fellow human beings deserving of our help? At the very least, it should be clear that the four words selected by the Texas Legislature generate an almost endless set of issues and, undoubtedly, future cases to be litigated.
Sanford Levinson is the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at The University of Texas at Austin.