Religious Freedom

In 1993, President Clinton signed into law the Religious Freedom Restoration Act, which created a statutory model for those with religious objections to laws of general applicability to avoid compliance based on religious objection. In 1997, the U.S. Supreme Court ruled in City of Boerne v. Flores that RFRA is not applicable to the states. Since then, 21 states have passed their own RFRA laws. A handful of state RFRAs differ from the federal RFRA and include language which allows religious freedom to be raised as a defense in lawsuits between private citizens.

While the original intention of the federal RFRA was indeed to protect religious minorities, many states have attempted to adopt religious freedom protections in order to target local nondiscrimination laws, restrict health care for women and LGBTQ patients, and permit civil servants to refuse to solemnize same-sex marriages or issue marriage licenses.

(A more detailed discussion of the way in which religious freedom is used to discriminate against the LGBTQ community can be found here.)

(A more detailed discussion of the way in which religious freedom is used to restrict access to healthcare for women can be found here.)

Examples of Marriage-Related Religious Freedom Laws (Last Updated September 13, 2018)

Religious Freedom Restoration Act (RFRA)

In 2015, Indiana and Arkansas faced criticism after passing their own versions of RFRA. Both laws included language allowing religious freedom to be raised as a defense in a lawsuit between private citizens. Indiana ultimately amended their law to include civil rights protections, while Arkansas scrapped their law and replaced it with a RFRA that tracks the federal version.

First Amendment Defense Act (FADA)

In June, 2015, United States Senator Mike Lee and Rep. Raul L. Labrador introduced the First Amendment Defense Act (S. 1598/H.R. 2802). The bills prohibit the federal government from taking discriminatory action against a person on the basis that such person believes or acts in accordance with a religious belief or moral conviction that: (1) marriage is or should be recognized as the union of one man and one woman, or sexual relations are properly reserved to such a marriage.

While the FADA has been pending in Congress, at least fifteen states (AR, CO, GA, HI, IL, IA, KY, MS, MO, OK, SD, TX, VA, WA, and WY) have attempted to pass their own version of the law. Occasionally referred to as Government Nondiscrimination Acts or Religious Freedom Defense Acts, state FADAs tend to include at least two of the following protected religious beliefs or moral convictions: (1) marriage is between one man and one woman; (2) sexual relations are properly reserved for such marriage; or (3) male and female refer to biological sex at birth.

In April, 2016, Mississippi enacted HB 1523, a law permitting individuals and businesses to discriminate against LGBTQ people based on certain religious beliefs or moral convictions. The far-reaching law not only permits people to refuse performing same-sex marriages, but also allows people to refuse foster care and adoption services; deny psychological, counseling, or fertility services; and ban transgender individuals from using bathrooms in accordance with their gender identity. The controversial law was viewed unconstitutional by many, including a federal judge who blocked the law in June of that year. However, on June 22, 2017, the Fifth Circuit Court of Appeals lifted the injunction on procedural grounds, ruling that the plaintiffs lacked standing to bring suit. Then, on January 8, 2018, the U.S. Supreme Court declined to take the appeal, thus letting the law stand. As such, the law is currently in effect.

Pastor Protection Acts

While the First Amendment already covers the right of religious organizations to refuse to perform marriages that conflict with their religious beliefs, many states have attempted to pass their own protections. Pastor Protection Acts generally prohibit the state from requiring clergy members to perform same-sex marriages. Some states have taken it a step further and have sought to allow religious organizations the right to refuse service and facilities for any marriage or celebration they don’t agree with.

In June, 2015, Texas passed its version of the Pastor Protection Act (SB 25). The law prohibits the state from requiring clergy or any other staff member of a religious organization to “solemnize any marriage or provide services, accommodations, facilities, goods, or privileges for a purpose related to the solemnization, formation, or celebration of any marriage if the action would cause the organization or individual to violate a sincerely held religious belief.”

On July 1, 2016, a similar law went into effect in Florida. HB 43 granted certain religiously-affiliated individuals and entities the right to refuse to solemnize a marriage or provide marriage related goods, services, or accommodations if doing so would violate their sincerely held religious beliefs.

Civil Servants

Similar to Pastor Protection Acts, some states have attempted to pass legislation allowing government employees to refuse to provide marriage certificates or licenses to same-sex couples if doing so would violate their sincerely held religious beliefs.

In March, 2015, Utah passed SB 297 which allowed not only clergy members but government employees as well, to refuse to perform marriage services due to his or her personal beliefs. Two months later, North Carolina passed its own law, SB 2, which allowed magistrates, assistant registers of deeds, and deputy registers of deeds to recuse themselves from performing duties related to marriage ceremonies due to sincerely held religious objection.

Laws