Part Two — Legislative Censorship
In my last post, we considered several instances of judicial inference with public religious expression. In this post, we’ll consider some examples of legislative censorship of religious expression. While not as widespread or famous as judicial censorship, legislative censorship is just as detrimental to the maintenance of general liberty.
Legislative censorship is often more subtle than judicial censorship. It is generally only a clause within a bill, or unclear potential ramifications in the event of litigation based on the bill, not the actual bill itself, that could restrict religious freedom. In addition, coercive lobbying based on these bills can often lead to censorship.
It is important to note that, while legislative censorship is not as famous as judicial censorship, it is often inappropriate legislation that provides the foundation for judicial censorship. After all, in any court case, the basis for the decision is based on one or any of four things — the U.S. Constitution, a state Constitution, federal law, or state law.
As with judicial censorship, legislative censorship is often disguised as an attempt to procure greater social liberty or “social justice.” Unfortunately, many of these efforts attempt to hold private and religious entities to the same standards of neutrality and the Establishment Clause to which public entities are accountable, and this is where the trouble begins.
The anti-discrimination laws protecting the LGBT community have provided ample evidence of such indirect legislative infringement on religious liberty. For example, California Senator Ricardo Lara introduced a bill to the California Senate in the 2016 legislative session that amended the section of California’s Education Code covering post-secondary institutions. Under Title IX of the federal Education Amendments of 1972, post-secondary institutions (colleges and universities) are prohibited from discriminating against anyone on account of sex, among other things. In addition, California’s Education Code forbids any post-secondary institution from discriminating against anyone on account of sexual orientation. Both Title IX and California law allow for an exemption upon various given bases. One of the allowed bases for exemption is the institution’s religious tenets. Evidently, this provision was too lax for Senator Lara. He introduced an amendment to California’s code, which was signed by California governor Jerry Brown, that now requires all post-secondary institutions to submit a basis for their exemption request to the Student Aid Commission. Senator Lara had this to say about the basis for his bill:
“California has established strong protections for the LGBTQ community and private universities should not be able to use faith as an excuse to discriminate and avoid complying with state laws. No university should have a license to discriminate.” (Los Angeles Times)
In other words, Senator Lara has proposed this bill because he believes private entities should be subjected to the same restrictions to which public entities are held, regardless of religious belief.
The Los Angeles Times further reported:
“Lara said he is adamant that religious universities should be subject to some of the anti-discrimination laws that apply to public colleges.
“The state bill targets the growing number of private universities that have obtained an exemption to anti-discrimination laws based on the argument that compliance would conflict with the religious tenets of that organization, said Lara, who is openly gay.
“‘These universities essentially have a license to discriminate, and students have absolutely no recourse,’ Lara said Tuesday in a hearing before the Assembly Higher Education Committee approved the bill. ‘Universities are supposed to be a place where students feel safe and can learn without fear of discrimination or harassment.’
“Assemblyman Evan Low (D-Campbell) cited standards of conduct at some schools that prohibit same-sex relationships and cross-dressing. Lara said enforcement of such policies could be challenged in court under his proposal.”
If an LGBT student feels that a college or university is violating the requirements of Sen. Lara’s proposal or other California anti-discrimination codes, they could bring suit against the institution they attend. Even those officials of universities that prohibit the actions related by Assemblyman Low for religious reasons could find themselves in court, forced to decide whether they will relinquish their prohibitions despite their beliefs, or face a revocation of their tax-exempt status or other hardships.
Another example of legislation that has lead to infringement on religious liberty is the Revised Code of Washington 49.60.030. Baronelle Stutzman, a florist in Richland, Washington, faced multiple court cases upon her refusal to participate in the decoration for a same-sex wedding. The Washington Attorney General, Bob Ferguson, brought suit against her for violating RCW 49.60.030, Washington’s anti-discrimination law. This law allows no exception for religious belief, and provided the basis for the Court’s ruling against her.
In Iowa, Richard and Betty Odgaard settled for $5,000 with a gay couple whose wedding they refused to host. The gay couple had filed a complaint with the Iowa Civil Rights Commission, which ruled that the Odgaards had violated Iowa’s non-discrimination code. The Odgaards sued the Commission, but lost, the Court agreeing that the Odgaards were in violation of Iowa’s code, and refusing to grant them a religious exemption.
As you can see, legislation can be a slippery slope toward infringement upon religious freedom. Many bakers, florists, and other service providers are being censored because of their religious beliefs, and faulty legislation is being used as the basis for this censorship.
LA Times on California anti-discrimination bill:
Text of Sen. Ricardo Lara’s anti-discrimination law:
More information on Sen. Lara’s bill:
SB 1478, Sen. Ervin Yen’s Vaccination Exemption Bill:
Title IX of the federal Education Amendments of 1972:
Title IX Summary:
Oregon anti-discrimination advertising statute:
Information on Baronelle Stutzman and the Court cases brought against her:
The Iowa District Court for Polk County’s decision in Odgaard v. Iowa Civil Rights Commission:
More information on the Odgaard’s and their loss of their business: