Flush with victory following the Supreme Court’s 5–4 decision in Obergefell v. Hodges, the Left is doing what it does best – bringing down the hammer on dissent. In Oregon, a young couple faces a gag order and ruinous fines merely for refusing to bake a cake for a lesbian wedding. Calls to eliminate tax deductions for orthodox religious organizations are increasing, and key Senate Democrats are either waffling on protecting religious schools or expressing outright hostility to their most basic liberties. Even before Obergefell, Christian schools faced threats to their accreditation, and Christian groups endured systematic and comprehensive efforts to exclude them from campuses.
Yet this wave of actual and threatened censorship is occurring at exactly the moment when Republicans enjoy greater power and influence in state legislatures than at any time in the history of the party, controlling 68 out of 98 partisan legislative bodies. Thus there is an opportunity for a decisive legislative response — in state after state — but only if conservatives can show some backbone, only if they demonstrate that they can endure a few days of angry tweets and press releases from reflexively liberal corporations.
Complacent state legislators must understand that Religious Freedom Restoration Acts — while better than nothing — will likely provide minimal protection in conflicts between religious liberty and same-sex marriage. RFRAs merely mandate a balancing test, requiring that the government demonstrate a “compelling governmental interest” if it wishes to burden religious expression. For a liberal judge, Justice Kennedy’s ode to love in Obergefell may well provide all the compelling interest he needs to impose the state’s will on people of faith.
For legal protections to be effective, they will likely have to be precise — targeting known threats while providing the legal tools to deter abuse. Specifically, state legislatures should consider three pieces of legislation: A First Amendment defense act, a campus freedom of association act, and an act protecting the accreditation of Christian schools and colleges.
It’s difficult to preserve a culture that respects religious liberty without respecting religious freedom on campus.
The First Amendment Defense Act is the broadest and most consequential of the three. If a state act is modeled after the proposed federal legislation, it will prohibit the state government from taking any discriminatory action against a person (including, of course, churches and religious organizations) “wholly or partially on the basis that such person believes or acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.” This would prohibit denials of tax exemptions, grants, loans, accreditation, licenses, and a host of other state benefits merely because a person holds orthodox Christian views on sexual morality. Sam Brownback and Bobby Jindal have signed executive orders creating similar protections in Kansas and Louisiana, but executive orders are a poor substitute for legislation.
Next, it’s difficult to preserve a culture that respects religious liberty without respecting religious freedom on campus. As colleges continue to kick Christian groups off campus on the absurd grounds that faith-based organizations are “discriminatory” merely because they want leaders to share the group’s faith, they not only violate the core freedom-of-association rights of campus Christians, they teach a generation of students that there is something inherently wrong with Christian organizations. A number of states — including Tennessee, Ohio, and Virginia — have passed state laws protecting freedom of association on campus. There is no reason why a Republican legislature can’t pass a bill protecting Christian groups from being forced to open themselves up to atheist or Muslim leadership.
Finally, Christian schools are increasingly concerned that national and regional accreditors will take action against them unless they violate their faith principles and embrace the sexual revolution. Losing accreditation would effectively destroy most schools, yet recognized accreditors — at least in theory — are required to respect the “stated mission” of a school or university, including its “religious mission.” Unfortunately, however, the agency charged with enforcing that requirement is the Obama administration’s Department of Education. The DOE — one of the federal government’s most leftist bureaucracies — will likely do nothing to enforce the law and protect religious schools. As a consequence, states should create a private right of action to permit schools in their jurisdiction to sue for injunctive relief and damages in the event that an accreditor violates the law and demands that a school take any action inconsistent with its religious mission.
Together, these three acts would preserve the autonomy of religious institutions, protect religious individuals from state persecution, and preserve the place of private Christian groups in the lives of students. The professional Left will object. Apple and Salesforce.com will object. Walmart may as well. Yet if lawmakers can’t act to protect our nation’s first freedoms, they may find their most loyal voters and volunteers are suddenly interested in different candidates. The conservative public will be watching.
— David French is an attorney and a staff writer at National Review.