One of the landmark constitutional questions of our day is being fought at the Texas Capitol: Does the right to religious freedom give people license to discriminate against others?
Some evangelicals believe it should. Christian conservatives this session have filed a raft of proposals in that vein, including one of Lieutenant Governor Dan Patrick’s priority measures: Already passed through the Senate, Senate Bill 17 would give state-licensed professionals, including those in the medical and child care fields, permission to refuse services to LGBTQ Texans (and possibly others) on the shaky grounds of “sincerely held religious belief.”
Anyone that’s paid attention to American religious history will find the debate over SB 17 depressingly familiar; the characters have changed, but the plot remains the same. Today’s targets of religious discrimination are members of the LGBTQ community. Not long ago they were African Americans and women.
Historians have noted a widespread belief among southern white Christians that the enslavement of black people was divinely ordained. Tennessee preacher J.R. Graves, whom scholar E. Luther Copland called “possibly the most influential Southern Baptist” in the years leading up to the Civil War, taught that slavery “was instituted and commanded by the God of heaven.”
Christians also used religion as a tool to oppose equal treatment, including the right to vote, for women. In 1884 Michigan professor H.M. Goodwin called the women’s suffrage movement “a rebellion against the divinely ordained position and duties of wom[e]n.” Author Susan Fenimore Cooper penned an open letter opposing women’s suffrage, declaring: “Christianity confirms the subordinate position of wom[e]n.”
After the Confederacy collapsed, Southerners turned again to the Bible to justify segregation. In Texas, Governor Allan Shivers defended segregation on religious grounds, saying during his re-election campaign in 1954: “We are going to keep the system that we know is best. No law, no court, can wreck what God has made.” Influential pastor W.A. Criswell, who was Robert Jeffress’ predecessor at First Baptist Dallas, used “a peculiarly racist interpretation of Genesis 9:20-27” to justify Jim Crow, writes Duke University’s Curtis W. Freeman. In a “famous and often repeated” 1961 sermon, Criswell preached that African Americans had “inherited… God’s curse, that ‘they should be a servant people.’”
After the 1964 Civil Rights Act, Southern business owners “argued in court that… their religious beliefs should protect them from being forced to desegregate.” A 1968 Supreme Court decision called such claims “patently frivolous.” Criswell, the First Baptist Dallas pastor, eventually abandoned segregationism in the late 1960s. And in 1995 the Southern Baptist Convention, the largest evangelical denomination, repented its earlier support for racism.
Each of these historical cases — slavery, segregation and women’s suffrage — shows that, while religious liberty is a cornerstone of American democracy, it’s always been subject to limits, as with any right. That’s particularly true when it involves treating others as second-class citizens.
“Religious liberty rights cannot be absolute,” Elizabeth Reiner Platt, director of Columbia University’s Law, Rights, and Religion Project, told the Observer. “The classic law school example of this is someone who believes in human sacrifice. Not even the most extreme advocates for broad religious liberty rights would argue that the state can or should protect killing as a religious practice.”
But that hasn’t stopped conservative Christians from trying to use a religious freedom argument to pass anti-LGBTQ measures. Indeed, the warnings issued in the 19th and 20th centuries echo today in the halls of the Capitol. Texas Values president Jonathan Saenz cautions that anti-discrimination measures would “punish people of faith” and “#BanTheBible.” Conservative Houston activist and Patrick ally Steve Hotze accuses LGBTQ people of “undermining the Biblically based moral values of our nation.”
And it’s not just fringe activists. State Senator Eddie Lucio, a Brownsville Democrat who was the key vote in advancing SB 17, said in support of the proposal that religious freedom is under attack, that “preserving marriage” has been “maligned as bigotry” and that the Bible is “the greatest history book ever written.”
The bill’s author, state Senator Charles Perry, R-Lubbock, insisted that shielding people of faith is a “moral” issue. In response to questions about how the law would discriminate against LGBTQ Texans, Perry said that we “live in a day and time when people of faith … can’t practice their faith openly in the public square anymore.”
But state Senator Juan “Chuy” Hinojosa, D-Edinburg, shot back, “You’re turning this upside down … Freedom of religion is to practice whatever religion you want. But it doesn’t give you the authority to discriminate against people.”
Indeed, Hinojosa has history and public opinion firmly on his side.