In anticipation of the U.S. Supreme Court sanctioning marriage equality, Texas Governor Greg Abbott recently signed into law “the Pastor Protection Act.” At the signing ceremony, the Governor stated “I am proud to sign into law SB 2065 … to ensure that clergy in Texas cannot be forced to violate their religious beliefs.” Based on the governor’s statements, the law appears to be nothing more than a mere codification of existing First Amendment rights. But on closer examination, this overly broad law likely sanctions discrimination in the marketplace against lesbian, gay, bisexual, and transgender (LGBT) people, as well as other groups.
The new law applies to clergy, religious organizations and their employees, and “… an organization supervised or controlled by or in connection with a religious organization. “ It prohibits sanctions against any of these individuals or entities that refuse to “solemnize any marriage or provide services, accommodations, facilities, goods, or privileges for a purpose related to the solemnization, formation, celebration of any marriage” based on a violation of their “… sincerely held religious beliefs.”
The right of clergy, houses of worship and their employees to only solemnize, participate in or recognize marriages that adhere to their faith has always been the law of the land. Just as the First Amendment allows a rabbi to refuse marriage of an interfaith couple or a priest to similarly refuse the marriage of a divorced person, nothing in Supreme Court’s marriage decision abridges that right in the context of marriage equality. Indeed, those rights were explicitly acknowledged in the Court’s opinion and at the oral argument in Obergefell v. Hodges.
However, the Pastor Protection Act goes well beyond these sacrosanct First Amendment rights. The new law likely applies to religiously-affiliated organizations and schools. Furthermore, it makes no distinction among entities that are run for-profit or open themselves to the public. So under the law a religiously-affiliated university that rents a banquet hall to the public for weddings could legally refuse a same-sex couple or other religious minorities. The same would be true for a commercial wedding chapel. That’s not religious freedom, but rather government-sanctioned discrimination. And unlike religious or racial minorities, same-sex couples in Texas have no federal recourse against such discrimination.
The marriage equality decision strictly concerned the right to civil marriage. But cloaked in slogans such as “freedom to worship,” “sacred rights” or “pastor protection,” opponents of civil marriage equality are using the Supreme Court’s decision as an opportunity to impose their religious views about marriage on our nation’s pluralistic marketplace. Regrettably the Pastor Protection Act is only the beginning of a torrent of state legislation that is sure to come.