Updated on 3:30 p.m., February 28
With Arizona's SB 1062 vetoed by Gov. Jan Brewer (R) after a long week of uproar, similar legislation has faced nothing but defeat after defeat this month.
The Kansas Senate decided not to consider HB 2435, the religious freedom legislation that had already passed in the House. One representative who voted no on the bill said, "this is about legalized discrimination, and I cannot vote in support of this." In South Dakota, the Senate Judiciary Committee tabled SB 128; one committee member called it “a mean, nasty, hateful, vindictive bill.” The sponsor of Tennessee's SB 2566 withdrew his sponsorship in early February.
Yesterday in Ohio, the sponsors of HB 376 withdrew the bill, with one sponsor telling the Plain Dealer that he never meant for the law to legalize discrimination: "We thought it would be a good idea to protect people who wanted to wear their Yarmulke to work or put their Bible on their desk and not be punished in any form for that." Earlier this week in Georgia, two religious freedom bills were quickly climbing through the state Senate and House. On Tuesday, Indiana lawmakers abandoned an amendment that would have protected religious schools and charities from discrimination lawsuits.
By the time Brewer vetoed Arizona's bill, the Senate bill in Georgia was dead, and the House bill doesn't look like it has a chance of getting out of committee. Utah tabled a bill similar to Arizona's — as well as a competing bill seeking to prohibit LGBT discrimination. The only openly gay person serving in Utah's Senate told the Salt Lake City Tribune, "All the ridicule and all the embarrassment and all the stupidity that Arizona is now facing … that is a genie that can't be put in the bottle. Arizona is going to continue to look weird and dumb and stupid and Utah came this close to leading the way."
There's a clear trend here, and it isn't in favor of the legislators who have been on a religious-freedom-bill-drafting spree for the past few months. However, many of the above states are hoping to narrow the scope of their failed bills and reintroduce them once the furor over Arizona's attempt fades. Politicians in some states who renounced their support for such legislation after admitting they didn't realize the full scope of the proposed changes may read their old rough drafts and try again. Other state legislators haven't abandoned their bills quite yet, hoping that maybe circumstances will be different in their state when the Supreme Court hears oral arguments on religious exemption and the Affordable Care Act next month. Here are the states to watch if you want to keep tabs on this issue.
Late last night, Mississippi House members responded to criticism their religious freedom bill was receiving from the state chapter of the ACLU and struck a provision that allowed individuals and businesses facing discrimination lawsuits to use religion as a defense. The president of the Mississippi Economic Council told the Mississippi Business Journal that the amended bill was much more acceptable than SB 2681, which passed in the state Senate on Jan. 31. One of the senators who voted for the original Senate bill, David Blount, confessed on Facebook that he didn't quite know the contents of the legislation he approved. “I am opposed to discrimination of any kind, including discrimination based on sexual orientation. Obviously, I should have (all of us should have) been aware of this. I have already talked with House members about removing language relating to legalized discrimination in SB2681.”
Mississippi Gov. Phil Bryant (R) hasn't commented on the religious freedom aspects of the legislation being considered, but he reaffirmed his support for the provision the bill was more popularly known for until a few weeks ago: “What little bit I’ve heard about it – I’m depending on the legislative process and I hate to comment on it at this point. I am sure attorneys in the House of Representatives will be looking at it. I'm just not prepared to say at this point whether that bill has that provision in it or not … I do support putting 'In God We Trust' on the state seal.”
Bryant signed the "Mississippi Student Religious Liberties Act" last March, which "could lead to student-led prayer over school intercoms or at graduations or sporting events." The local ACLU chapter head told a local reporter that the law was about "the school favoring the concept of religion and so that still violates the Constitution ... We'll see how schools react when a Wiccan child wants to say a prayer that's a part of their faith."
On Monday, a state senator in Missouri filed a bill that would let businesses in the state cite religious belief as a legal defense. After the bill faced Arizona-esque backlash, he went to Facebook to defend his legislation: "This bill is meant to ensure that the government is not able to force individuals to violate their religious beliefs, and will provide protections to all. This is not a bill about discrimination. Indeed, it specifically says that the law shall not be construed to provide a defense in discrimination cases." He told a local newspaper that the Arizona bill goes "way, way further" than his. A political science professor interviewed by a local reporter said that the bill would never be signed by Democratic Gov. Jay Nixon, so this was simply a symbolic fight. “Those who believe in its purpose, it’s basically a religious freedom bill," he said. "Those who believe it’s a subterfuge, it’s a license to discriminate. This kind of issue becomes a symbolic issue that has no price other than the time of the people who debate it.”
Oklahoma legislators are in the process of rewriting HB 2873, which had similar language to the bill that just failed in Arizona. The bill's sponsor, Rep. Tom Newell (R-Seminole), told the AP they'll try again next session: “We are committed to trying to find, which will have to be next session now, a bill that we can protect freedom of conscience for private business owners. ... I realize it’s a tricky thing, but I do think it’s something we need to look at, and people shouldn’t be forced to serve someone if it violates their religious conscience." The legislature will likely focus on passing the "Religious Viewpoints Antidiscrimination Act," which offers additional protections for students expressing religious viewpoints in schools, this session instead.
Michigan legislators introduced a bill similar to Mississippi's "Student Religious Liberties Act" in December 2013. Many observers consider the law a bit redundant, since "Federal law already guarantees the same protections to students under both acts of Congress, Supreme Court decisions and the First Amendment, and the Michigan Constitution also includes protections for religious expression." Texas has a similar law, and legislatures in North Carolina, Oklahoma and Alabama have considered similar bills. Michigan's SB 716 was referred to the Senate Education Committee.
The Idaho House sent HB 427 back to committee last week, with the bill's sponsor, Rep. Lynn Luker (R-Boise), saying: “However, many misinterpreted the intent to be a sword for discrimination. I respect the concerns that I heard and therefore want to find the right language to balance those concerns.” This state effort is one of the instances in which a failed attempt to pass these laws resurfaces later in the year or in 2015, with the parameters of "religious freedom" narrowed considerably.
Legislators in the Hawaii House introduced the "Religious Freedom Restoration Act" on Jan. 23. It was referred to the House Judiciary Committee on Jan. 27. Lois Perrin, the legal director of Hawaii's ACLU chapter says "Although opponents of equal rights may propose similar legislation in the future, the ACLU of Hawaii has confidence that the majority of legislators will not allow any proposal to permit this kind of discrimination now or in the future."
Friends of Religious Freedom, which is affiliated with the Oregon Family Council, is trying to get IP52 — or the Protect Religious Freedom Initiative — on the November ballot. In a statement announcing the proposed initiative in November 2013, the group's spokesperson said: “We are deeply concerned that even Oregon elected officials are becoming hostile towards religious freedom. In comments related to a business owner that declined to participate in arrangements for a same-sex wedding ceremony because of conscientious objections, Oregon Labor Commissioner Brad Avakian said, ‘The goal is never to shut down a business. The goal is to rehabilitate.’ It is very troubling that Oregon elected officials believe people of faith or with conscientious objections need to be ‘rehabilitated.’ ” The initiative is currently under consideration by the Oregon secretary of state office. Last week, Friends of Religious Freedom complained to the attorney general's office for using the word "discrimination" in their draft ballot title for the initiative: "Exempts religious opposition to same sex marriage/civil union/domestic partnership from penalties for discrimination."
In West Virginia, the House introduced the "Religious Freedom Restoration Act" on Jan. 14. It looks more similar to the Religious Freedom Restoration Acts passed in 18 other states than the more contentious legislation pertaining to the religious rights of businesses being considered in Arizona and elsewhere. Or as Ricky Moye, the state delegate who co-sponsored the bill, puts it "The only thing it had in common to the recent controversy in Arizona is the name of the law that had been on the books in Arizona since 1999."It was referred to the House Judiciary Committee on Jan. 14.
On Jan. 8, Senate Joint Resolution 6 was introduced, which seeks to amend the Constitution to guarantee very thorough religious freedom:
That all men and women have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; that no human authority can control or interfere with the rights of conscience; that no person may, on account of his or her religious persuasion or belief, be rendered ineligible to any public office or trust or profit in this state, be disqualified from testifying or serving as a juror, or be molested in his or her person or estate; that to secure a citizen's right to acknowledge Almighty God according to the dictates of his or her own conscience, neither the state nor any of its political subdivisions may establish any official religion, nor may a citizen's right to pray or express his or her religious beliefs be infringed; that the state may not coerce any person to participate in any prayer or other religious activity, but shall ensure that any person has the right to pray individually or corporately in a private or public setting so long as the prayer does not result in disturbance of the peace or disruption of a public meeting or assembly; that citizens as well as elected officials and employees of the State of West Virginia and its political subdivisions have the right to pray on government premises and public property so long as the prayers abide within the same parameters placed upon any other free speech under similar circumstances; that the Legislature and the governing bodies of political subdivisions may extend to ministers, clergy persons and other individuals the privilege to offer invocations or other prayers at meetings or sessions of the Legislature or governing bodies; that students may express their beliefs about religion in written and oral assignments free from discrimination based on the religious content of their work; that no student may be compelled to perform or participate in academic assignments or educational presentations that violate his or her religious beliefs; that the state shall ensure public school students their right to free exercise of religious expression without interference, as long as the prayer or other expression is private and voluntary, whether individually or corporately, and in a manner that is not disruptive and as long as the prayers or expressions abide within the same parameters placed upon any other free speech under similar circumstances; and, to emphasize the right to free exercise of religious expression, that all free public schools receiving state appropriations shall display, in a conspicuous and legible manner, the text of the Bill of Rights of the Constitution of the United States.
The resolution was filed to the Senate Judiciary Committee on Jan. 8.
HB 751 was introduced in last year's legislative session, but was referred to the House Committee on Rules. The General Assembly is in recess.
Correction: An earlier draft of this article said that the Kansas Senate voted down the state's religious freedom bill. They ended up not considering the bill, which effectively killed it for this session.