Testimony from the Public Hearing on HB 3567 submitted by Rebecca L. Robertson, ACLU of Texas Legal and Policy Director.
To the Texas House Committee on State Affairs:
I submit this testimony on behalf of the American Civil Liberties Union of Texas, and its thousands of members and supporters around the state, to oppose HB 3567, which would give a broad array of religiously affiliated entities and actors an unprecedented right to refuse to recognize legal marriages in circumstances that have nothing to do with religious practice.
The ACLU of Texas has been fighting for religious liberty and the freedom to worship—or not—without government interference for more than 75 years. We would never support an intrusion by the government into ecclesiastical matters regarding who can be married according to the tenets of a particular faith. But nor can we support giving people of faith and religiously affiliated institutions the legal authority to discriminate in secular contexts against people who are legally married. Yet that is precisely what HB 3567 would do. We have reached out to the bill’s author to address these concerns, but we must respectfully urge the committee to oppose the bill in its current form.
Religious institutions and actors already protected
Texas does not need HB 3567. Same-sex couples are now free to marry in more than 30 states, and we know from our experience in those states that not one church, synagogue, temple, or other house of worship has ever been compelled to perform a wedding ceremony that contradicted its faith. Nor have any members of the clergy been compelled to solemnize unions that they find objectionable.
This should come as no surprise: freedom of religion is already a fundamental right amply protected by the Constitution. The freedom to worship and exercise religious beliefs is literally the first freedom enshrined by our Founders in the U.S. Constitution, and the First Amendment has been a beacon for free people the world over for more than two centuries. Under the First Amendment, clergy and religious institutions alike are guaranteed autonomy over ecclesiastical matters such as who is and is not entitled to be married within a faith tradition. Our Constitution reserves ecclesiastical matters exclusively to religious leaders. See, e.g., Kedroff v. St. Nicolas Cathedral, 344 U.S. 94, 122 (1952) (Frankfurter, J., concurring) (noting that under the Free Exercise Clause, legislatures have no authority to “to define religious obedience”); Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 708 (1976) (overturning state supreme court that had “unconstitutionally undertaken the resolution of quintessentially religious controversies whose resolution the First Amendment commits exclusively to the highest ecclesiastical tribunals”).
Here in Texas, the Texas Religious Freedom Restoration Act (TRFRA) further protects clergy from any government requirement dictating what marriages they must perform. TRFRA gives people of faith the legal right to challenge government action that substantially burdens the free exercise of their religion. TRFRA was favored by a broad coalition of faith groups and civil rights advocates. It passed with bipartisan support and was signed into law by then-Governor George W. Bush. For 15 years, it has served our state well, striking the right balance between guaranteeing religious liberty and preserving the ability of government to enforce laws that are for the common good.
HB 3567 sweeps too broadly
Unfortunately, HB 3567 departs from these well established and highly effective principles for safeguarding religious liberty. Although we understand from the sponsor that he intends only to protect clergy and houses of worship from having to perform weddings that are counter to their faith teachings, HB 3567 goes much further. First, the bill is not limited to the ecclesiastical contexts protected by the First Amendment, but rather provides that religious organizations do not have to “treat any marriage as valid for any purpose.” Moreover, the bill encompasses organizations that do not perform weddings, extending coverage not only to any “religious organization,” but also “an organization supervised or controlled by or in connection with a religious organization.”
Taken together, these broad provisions insulate organizations and actors well beyond the narrow context of weddings. Any religiously affiliated organization—including colleges, hospitals, adoption agencies, food pantries, and many others—could declare legal marriages invalid in completely secular contexts. Indeed, they could do so using taxpayer money. Given the diversity of religious belief in Texas about marriage and the prominent role of religiously affiliated institutions in public life, many families could be adversely affected. Interracial couples, interfaith couples, couples in which one is previously divorced, couples wed in civil ceremonies—any of these could face discrimination in health care, social services, or employment.
We are justly proud in Texas of our strong commitment to protecting religious liberty. But when we choose to engage in the secular sphere, everyone, regardless of faith, must play by the same rules. Thus, religious freedom does not include the right to discriminate against others. Nor does it include the right to demand that taxpayers subsidize personal religious expression that is contrary to good public policy.
We are committed to preserving and defending religious liberty in Texas and hope that the sponsor will consider revisions to HB 3567 in keeping with the high ideals of our Constitution. We respectfully urge this Committee to delay any action on HB 3567 pending these much needed revisions.
Rebecca L. Robertson
 Some opponents of same-sex marriage have expressed concern about a sensational story from Idaho involving the Hitching Post Wedding Chapel and its owners, the Knapps, ordained ministers who were supposedly at risk of fines under a local non-discrimination ordinance for rejecting same-sex couples seeking to marry there. However, as has now become clear, the actual facts are much less sensational. The proprietors of the Hitching Post were never ticketed or fined; to the contrary, they have received written assurances from the city that because they converted their for-profit business to a religious corporation, they are perfectly free to perform only weddings that comport with their beliefs. See Letter from Michael Gridley, Couer d’Alene city attorney, to David Cortman, counsel for the Knapps (Oct. 20, 2014), available at http://www.adfmedia.org/files/KnappCityAttorneyLetter.pdf.
 U.S. Const., amend. I.
 TRFRA, Tex. Civ. Prac. & Rem. Code, § 110.