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TO: INTERESTED PARTIES

FROM: TEXAS LEGAL SCHOLARS

RE: TEXAS H.B. 3859

DATE: MAY 17, 2017

As legal scholars, we are writing to offer a legal analysis of, and express our deep concerns
with, House Bill 3859 (H.B. 3859). We believe strongly that existing state and federal laws already
provide ample protections for the religious liberty rights of persons and organizations within
Texas. We also believe that if this bill becomes law, it will raise significant Establishment Clause
concerns, and tangibly harm vulnerable children and families in Texas.

I. Existing Law Provides Ample Protection for the Religious Liberty Rights of
Persons and Organizations in Texas

Texans free exercise rights are already robustly protected by religious liberty principles
contained within the Texas Constitution and Texas law. Article I, Section 6 of the Texas
Constitution provides that [a]ll men have a natural and indefeasible right to worship Almighty
God according to the dictates of their own consciences[and that] No human authority ought, in
any case whatever, to control or interfere with the rights of conscience in matters of religion, and
no preference shall ever be given by law to any religious society or mode of worship.1

The religious beliefs of persons and institutions in Texas are also legislatively
accommodated under the 1999 Texas Religious Freedom Restoration Act (TRFRA), which
amended the Texas code to provide persons and organizations in Texas with broad religious liberty
protections.2 Mirroring legislative action taken by a number of state legislatures and the U.S.
Congress, TRFRA was designed to create statutory protections for religious liberty following the
Supreme Courts decision in Employment Division v. Smith,3 an opinion written by Justice Antonin
Scalia that narrowed the Supreme Courts reading of the Free Exercise Clause of the First
Amendment. TRFRA bars the state and its municipalities from imposing a substantial burden on
a persons free exercise of religion, unless doing so is the least restrictive means of furthering a
compelling government interest. It specifically applies to an act of a government agency, in the
exercise of governmental authority, granting or refusing to grant a government benefit to an
individual.4

TRFRA and its federal companion, the Religious Freedom Restoration Act (RFRA), aim
to legislatively restore the standard of protection for religious liberty previously recognized under
the U.S. Constitutions First Amendment immediately prior to the Courts 1990 Smith decision.
These measures contain an intentionally rigorous standard in which courts must apply and weigh

1
Tex. Const. Art. I, 6.
2
Tex. Civ. Prac. & Rem. Code Ann. 110.001.
3
Employment Division v. Smith, 494 U.S. 872 (1990).
4
Tex. Civ. Prac. & Rem. Code Ann. 110.001.

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several competing factors and attempt to strike the proper balance between religious liberty
interests and other compelling governmental interests, including individual fundamental rights.
TRFRA therefore already broadly protects social service providers from government-imposed
burdens on their religious liberty, but only to the extent that these burdens are not necessary to
further the governments important interests in, among other things, protecting children and
families and avoiding Establishment Clause violations. As such, the Texas legislature has already
established, and Texas courts have recognized, a reasoned and careful means by which to protect
Texans religious liberty in light of other compelling state interests. There is no compelling reason
now to unsettle that balance with new legislation.

In contrast to TRFRA, H.B. 3859 tips the scales in favor of only one interestthe religious
liberty and beliefs of child services agenciesforeclosing the opportunity for competing interests
to be carefully weighed and properly considered. H.B. 3859 prohibits the government from taking
any adverse action against a child welfare service provider where the agency is motivated by
sincerely held religious belief. The bills definition of child welfare agency is broad and
applies not only to foster and adoptive agencies, but also to programs that provide services to
abused or neglected children, counseling services for children and parents, programs that offer
support for foster and adoptive parents, and organizations that provide family support services or
family preservation services. It also includes those who perform or assist with home studies that
determine whether or not a family is fit to house a young person, as well as temporary group
shelters for children. The absolute protection H.B. 3859 would provide to these agencies is overly
broad and would make thousands of Texas most vulnerable homeless and runaway youth even
more vulnerable. The bill does not leave room for the balancing mandated by TRFRA and the U.S.
Constitutions Establishment Clause. Instead, it assumes that where an agency refuses services to
another party because of a sincerely held religious belief, that belief should take primacy over any
claims by the injured party that their liberty rights, including their own free exercise rights, have
been violated. This unyielding preference for certain religious liberty rights overlooks numerous
important government interestsincluding the need to prevent discrimination, ensure childrens
welfare, and protect the religious rights of children in foster careand threatens violations of the
Establishment Clause.

The Texas Constitution and Texas laws already provide ample protection for the free
exercise of religion. Thus H.B. 3859 is an unnecessary bill, and one that is likely to subject the
state of Texas to widespread criticism and substantial litigation.

II. H.B. 3859 Violates the Establishment Clause of the U.S. Constitution

The First Amendments religion clauses state that Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof.5 The Supreme Court has
repeatedly acknowledged the potential for conflict between the two important values protected by
these clausesone prohibiting state establishment of religion and another securing religious liberty
for the citizenry.6 While the Court has rejected the notion that any statutory accommodation of

5
U.S. CONST. Amend. I.
6
See Locke v. Davey, 540 U.S. 712, 718 (2004) ("The Religion Clauses of the First Amendment provide: Congress
shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. These two Clauses,
the Establishment Clause and the Free Exercise Clause, are frequently in tension.); Comm. For Pub. Ed. & Religious

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religion amounts to a violation of the Establishment Clause,7 it has also warned that [a]t some
point, accommodation may devolve into an unlawful fostering of religion.8 Government
accommodations of religion that have a religious purpose, have the primary effect of advancing or
endorsing religion, or that entangle the state in religion cross the line from the protection of
religious faith to a violation of the Establishment Clause.9 As a religious exemption that would
both impose meaningful harms on discrete third parties and permit religious coercion in the
provision of government-funded services, H.B. 3859 violates the Establishment Clause.

a. H.B. 3859 Improperly Shifts the Cost of Social Service Providers Religious Beliefs
onto Children and Prospective Families

The Supreme Court has consistently relied on the Establishment Clause of the First
Amendment to strike down legislative accommodations for religious beliefs that cause a
meaningful harm to other private citizens.10 In 1985, the Court struck down a Connecticut
accommodation that gave religious workers the absolute right to a Sabbath day of rest regardless
of the effect on employers or co-workers.11 Four years later, it overturned a Texas tax exemption
for religious periodicals that forced non-religious publications to become indirect and vicarious
donors to religious entities.12 In 2005, the Court upheld a broad religious accommodation law
while explaining that accommodations need not be granted where they impose unjustified
burdens on third parties or the State.13 Two years ago, in Burwell v. Hobby Lobby, the Court
granted a religious accommodation to employers under the federal Religious Freedom Restoration
Act but emphasized repeatedly in its opinion the fact that employees rights and interests would,
according to the Court, not be harmed.14 And most compellingly, a federal court recently found
that a religious accommodation similar to H.B. 3859, Mississippis H.B. 1523, improperly harmed
the rights of others in violation of the Establishment Clause. In a decision ordering that the state

Liberty v. Nyquist, 413 U.S. 756, 788 (1973) (But this Court repeatedly has recognized that tension inevitably exists
between the Free Exercise and the Establishment Clauses and that it may often not be possible to promote the former
without offending the latter.) (internal citations omitted); Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 27
(concurrence) (1989) (This tension between mandated and prohibited religious exemptions is well recognized. See,
e.g., Walz v. Tax Comm'n of New York City, 397 U.S. 664, 668-669, 90 S.Ct. 1409, 1411-1412, 25 L.Ed.2d 697
(1970). Of course, identifying the problem does not resolve it.).
7
Hobbie Unemployment Appeals Commn of Fla., 480 U.S. 136 (1987).
8
Corp. of Presiding Bishop v. Amos, 483 U.S. 327, 334-35 (1987), citing Hobbie Unemployment Appeals Commn
of Fla., 480 U.S. 136, 145 (1987).
9
See Lemon v. Kurtzman, 403 U.S. 602 (1971).
10
See Estate of Thornton v. Caldor, 472 U.S. 703, 709 (1985). See also Frederick Mark Gedicks & Rebecca G. Van
Tassell, RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion, 49
HARV. C.R.-C.L. L. REV. 343, 357 (2014); Frederick Mark Gedicks & Andrew Koppelman, Invisible Women: Why an
Exemption for Hobby Lobby Would Violate the Establishment Clause, 67 VAND. L. REV. EN BANC 51 (2014); Board
of Education of Kiryas Joel Village School District, 512 U.S. at 725 (There is a point, to be sure, at which an
accommodation may impose a burden on nonadherents so great that it becomes an establishment) (Kennedy, J.,
concurring).
11
Caldor, 472 U.S. at 709.
12
Texas Monthly, 489 U.S. at 14 (internal quotations omitted).
13
Cutter v. Wilkinson, 544 U.S. 709, 726 (2005).
14
See Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2759 (2014) (The effect of the HHS-created
accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be
precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives
without cost sharing.).

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law be enjoined, the court found that the law violates the First Amendment because its broad
religious exemption comes at the expense of other citizens.15 Thus, a clear line of cases holds that
religious accommodations that impose material harms on others overstep the bounds of religious
freedom and become improper establishments of religion.

H.B. 3859 would operate to shift the cost of child welfare service providers religious
beliefs onto the children and families that they serve. Currently, children and families are protected
by a range of health, safety, and antidiscrimination protections at both the state and local levels.
For example, the Texas administrative code grants children in foster care a range of rights,
including: the right to fair treatment, the right to receive educational services appropriate to the
childs age and developmental level, the right to have the childs religious needswhich may be
distinct from the religious beliefs of the agencymet, and the right of children to not be pressured
to get an abortion, give up her child for adoption or parent her child.16 Texas also requires that
children in foster care have the right to medical and mental health care that adequately meet the
childs needs.17

Additionally, Texas children, adults, and families are afforded antidiscrimination


protections at the state and local levels that H.B. 3859 may compromise. H.B. 3859 protects some
Texans from discrimination through a provision stating that the bill may not be construed to allow
a child welfare services provider to decline to provide, facilitate, or refer a person for child welfare
services on the basis of that persons race, ethnicity, or national origin. Other forms of
discrimination are not exempted, however, including discrimination based on sex, religion,
disability, sexual orientation, and gender identity. The state of Texas generally prohibits
employment discrimination based on, among other things, religion, sex, and disability. 18 In
addition, several large municipalities in Texas have broad antidiscrimination protections in the
areas of public accommodations, city contracts, employment, housing, and other categories that
H.B. 3859 could undermine and preempt. Many of these municipalities prohibit discrimination on
the basis of sex, religion, and disability.19 Several municipalities also provide protections on the
basis of sexual orientation and gender identity.20 If a child welfare agency violated any of these
antidiscrimination laws by discriminating against children or parents because of their sex,
disability, religion, sexual orientation, or gender identity, H.B. 3859 would shield those agencies

15
Barber v. Bryant, No. 3:16-CV-417-CWR-LRA at 55 (S.D. Miss. Jun 30, 2016) (order granting preliminary
injunction).
16
40 Tex. Admin. Code 749.1003 (emphasis added).
17
Id.
18
Tex. Labor Code Ann. 21.051.
19
See e.g. Dallas, Texas City Code 46-1 (providing protections on basis of religion, familial status, sex, and
disability, among other categories) and Austin, Texas City Code 5-2-1 (providing protections on the basis of sex,
religion, and disability among other categories).
20
See e. g. Dallas, Austin, Fort Worth and Plano all have city ordinances prohibition discrimination on the basis of
sexual orientation and gender identity in housing, public accommodations, city employment, private employment, and
city contractors. Dallas, Texas City Code 46-1, 46-4, 46-4; Austin, Texas City Code 5-1, 5-2, and 5-3; Fort Worth,
Texas City Code, 17-1, 17-46, 17-86, 17-48, 17-66; Plano, Texas City Code 2-11. San Antonio has
protections for sexual orientation and gender identity in housing, public accommodations, city employment and city
contractors. San Antonio, Texas City Code 2-550, 2-592, 2-621, 2-640. El Paso has protections based on sexual
orientation and gender identity in places of public accommodation and city employment. El Paso, Texas City Code
6.1-11, 10.16.010.

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from enforcement actions by the state and local government.21 Thus, providers could deny services
to children or prospective parents in violation of the law because they are Muslim, Jewish,
LGBTQ, or have a disability, without fear of state or local government involvement.

Not only would H.B. 3859 prohibit Texas and its municipalities from enforcing these laws
against religious objectors, it would also forbid government agencies from denying an organization
a grant or contract because it acts on its religious beliefseven if these beliefs make the
organization unable or unwilling to provide comprehensive and nondiscriminatory services to all
Texans. For example, Texas would be unable to deny a child welfare social service provider a
government contract even if the provider advocates that sexual orientation and gender identity may
be changed through dangerous and medically-invalid conversion therapy, that children should
abide by and be educated in accordance with and Biblical gender roles, that mental illness should
be treated through prayer rather than conventional medical treatment, or that divorce is immoral,
even in circumstances of domestic violence.

Only a few narrow exceptions apply to this broad grant of legal protection to child welfare
service providers. As mentioned, providers are not exempted from laws that prohibit
discrimination based on race, ethnicity, and national origin. In addition, they may not deprive a
minor of the rights, including the right to medical care, provided by Chapters 32, 22 263,23 and
26624 of the Family Code. These exceptions are modest, however, as these provisions of the

21
H.B. 3859 of course does not, and cannot, prevent federal enforcement of applicable federal laws, such as the
Americans with Disabilities Act and the Civil Rights Act. See 42 U.S.C.A. 12101 and Civil Rights Act of 1964,
Pub. L. No. 88-352, 78 Stat. 241 (codified as amended in scattered sections of 2 U.S.C., 28 U.S.C., and 42 U.S.C.).
22
Chapter 32 of the Texas Family Code outlines who may consent to a minors medical treatment and care, including
when minors may consent to their own medical treatment and care. Tex. Fam. Code Ann. 32. It imposes only minimal
requirements that may apply to child welfare providers. For example, 32.102(a) requires that A person authorized
to consent to the immunization of a child has the responsibility to ensure that the consent, if given, is an informed
consent. 32.203 requires that A transitional living program must attempt to notify the minor's parent, managing
conservator, or guardian regarding the minor's location. The chapter also gives minors the power to consent to their
own or their childrens medical treatment, emergency shelter, or care in limited circumstances. However outside these
limited circumstances, the chapter does not appear to prohibit guardians from withholding medical treatment from a
minor, including for religious reasons. Thus, even though H.B. 3859 contains a limitation requiring child welfare
agencies to comply with the Chapter 32, this does not impose any duty to provide most minors with medical care, or
prevent them from providing minors with unwanted treatment.
23
Chapter 263 of the Texas Family Code outlines the legal process for minors involved in a guardianship or parental
rights dispute. Tex. Fam. Code Ann. 263. It includes 263.008, a provision relating to the Foster Childrens Bill
of Rights, which lists a minors right to medical care, education, privacy, and other rights. Section 263.008 only
requires An agency foster group home, agency foster home, foster group home, foster home, or other facility in which
a child is placed in foster care to provide a copy of the foster children's bill of rights to a child on the child's request.
263.008 (emphasis added). While it requires the state to develop and implement a policy for receiving and handling
reports that the rights of a child in foster care are not being observed, Tex. Fam. Code Ann. 263.008, it does not
create any cause of action. Thus, it does not appear to create any legally enforceable mandate that foster care agencies
either affirmatively provide children with the Bill of Rights, or comply with the substance of the Bill of Rights.
Notably, references to fair treatment based on sexual orientation and gender identity were recently removed from
the Bill of Rights. See Robert Maxwell, Foster Bill of Rights Removes r=References to Fair Treatment on Sexual
Orientation, WXAN.COM (Feb. 23, 2017), http://kxan.com/2017/02/23/foster-bill-of-rights-removes-references-to-fair-
treatment-on-sexual-orientation/.
24
Chapter 266 of the Texas Family Code regulates medical care and education for children in foster care. It places
numerous requirements on state agencies and the court system to monitor the well-being of foster children, but places
relatively few legal requirements on foster care agencies themselves. Tex. Fam. Code Ann. 266. For example,
266.003 requires the state Health and Human Services Commission to collaborate with health care and child welfare

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Family Code impose few requirements on child welfare service providers to provide youth with
nondiscriminatory health, medical, and education services. Furthermore, H.B. 3859 does not
prevent law enforcement officers from exercising duties imposed on the officers under the Family
Code and the Penal Code. While the bill does not prohibit police officers from performing their
duties to protect children, however, it is unclear whether service providers may nevertheless be
exempt from prosecution under H.B. 3859 if they take otherwise-punishable actions.

If a provider refuses to provide services because of its religious beliefs, H.B. 3859 requires
government entities to ensure that a secondary service provider is available in the catchment area
to provide [the] services or, if there is none, to provide for one or more secondary service
providers in an adjacent catchment area. This measure is insufficient to prevent harm to children
and families for numerous reasons. First, since religious objectors are exempted not only from
providing the services to which they object, but also from referring for these services, it is unclear
how the government would be made aware of the need to transfer a child to another facility.
Second, the provision does nothing to prevent the initial stigmatizing harm to children, particularly
those in the midst of a family or personal crisis, of being denied services because the entity charged
with their wellbeing has a moral objection to such care. Third, the provision contemplates that at
least some beneficiaries will be required to seek services outside of their community, and perhaps
away from friends and family, because of an agencys religious beliefs. Finally, the requirement
that agencies provide secondary service providers out of whole cloth when no alternative exists is
an enormous burden that makes it likely some children will slip through the cracks or be denied
necessary services before an agency can establish any alternative provider.

H.B. 3859 requires the state of Texas and its municipalities to exempt service providers
from complying with laws and policies that conflict with their religious beliefs, even when this
would cause significant harms to the children and youths that Texas is obligated to protect, and
the families seeking to care for these children. By shifting the substantial costs of a religious
accommodation onto third parties, the bill violates the Establishment Clause.

a. H.B. 3859 Could Allow Government Contractors to Coerce Children into Religious
Practice, in Violation of the Establishment Clause

In addition to improperly shifting the cost of a religious accommodation onto identifiable


third parties, H.B. 3859 also violates the Establishment Clause by advancing or endorsing religion.

professionals to design a comprehensive, cost-effective medical services delivery model, either directly or by contract,
to meet the needs of children served by the department. 266.003. This includes the identification of a medical
home for each foster child on entering foster care at which the child will receive an initial comprehensive assessment
as well as preventive treatments, acute medical services, and therapeutic and rehabilitative care to meet the child's
ongoing physical and mental health needs throughout the duration of the child's stay in foster care. Furthermore, the
chapter orders judicial monitoring of foster childrens medical care, including the degree to which the child or foster
care provider has complied or failed to comply with any plan of medical treatment for the child. 266.007(5). The
requirements for foster agencies are far more modest. The Chapter: forbids enrollment of a foster care child in a drug
research program without a court order, 266.0041; requires that those authorized to consent to medical treatment for
a foster child prescribed a psychotropic medication ensure that the child has been seen by the prescribing physician,
physician assistant, or advanced practice nurse at least once every 90 days, 266.011; and prohibits most medical
care from being provided to foster children unless the person authorized by this section, including a foster parent,
parent, the Department of Family and Protective Services, or an agent of the department, has provided consent
266.004.

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The Supreme Court has held that contracting with or providing funds to a religious organization
does not necessarily constitute an advancement or endorsement of religion in violation of the
Establishment Clause.25 However, grants to religious institutions have only been upheld where
the state funding of the programs arose out of true private choice or the genuine and independent
choices of private individualsUnder our Establishment Clause precedent, the link between
government funds and religious training is broken by the independent and private choice of
recipients.26 Where private individuals have no or insufficient choice in selecting a religious
program, government support for a religious organization violates the Establishment Clause.27
Courts are particularly sensitive to Establishment Clause concerns when children are involved, as
they are assumed to be especially susceptible to religious coercion.28 In one particularly relevant
case, the Sixth Circuit held that it violated the Establishment Clause for the state of Michigan to
contract with a faith-based residential care facility for troubled youth that offered religious
programming, despite the fact that the youth could opt out of this programming, or out of the
program entirely.29 The court held that where, as here, the State selects the juvenile state ward's
residential placement, the ward's ability to opt out of placement at a faith-based institution with
religious programming is not sufficient to avoid Establishment Clause problems because State
placements at Teen Ranch would advance or endorse a particular religious viewpoint.30

25
See, e.g., Zelman v. SimmonsHarris, 536 U.S. 639, 649, (2002); Witters v. Washington Dept. of Servs. for
Blind, 474 U.S. 481 (1986); Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993).
26
Teen Ranch v. Udow, 389 F. Supp. 2d 827, 834 (W.D. Mich. 2005), affd 479 F.3d 403 (6th Cir. 2007) cert denied
552 U.S. 1039 (2007) (internal quotations omitted). See also Mitchell v. Helms, 530 U.S. 793, 816 (2000) (holding
that [a]ny money that ultimately went to religious institutions ... as a result of the genuinely independent and private
choices of individuals is constitutionally valid. (internal quotations and citation omitted)); Freedom From Religion
Foundation, Inc. v. McCallum, 214 F.Supp.2d 905, 907 (W.D. Wisc. 2002) affd 324 F.3d 880 (7th Cir. 2003)
(offenders participate in Faith Works as a result of genuinely independent, private choice and that this choice makes
the Department of Corrections contract with Faith Works an indirect program that does not convey a message of
endorsement.); American Jewish Congress v. Corporation for Nat'l. and Community Service, 399 F.3d 351 (D.C.
Cir. 2005) (Holding that a government program awarding scholarship funds to individuals who fulfill a service
requirement, including those who do so through teaching at a religious school, did not violate the Establishment
Clause. The court so held because it found that (1) that there are numerous AmeriCorps teaching positions in public
and private secular schools; and (2) that there is no evidence of any participant who wanted to teach in a secular
school, but was impermissibly channeled to a religious school.).
27
See, e.g. Americans United for Separation of Church and State v. Prison Fellow Ministries, 509 F. 3d 406, 425 (8th
Cir. 2007) (striking down a prison contract with a faith based organization under the Establishment Clause because
there was no genuine and independent private choice between secular and religious programs.).
28
See e.g., Santa Fe Independent Sch. Dist. v. Doe, 530 U.S. 290, 312 (2000) (holding that delivery of a pregame
prayer [at a high school sporting event] has the improper effect of coercing those present to participate in an act of
religious worship); Lee v. Weisman, 505 U.S. 577, 592 (1992) (As we have observed before, there are heightened
concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public
schools.); Edwards v. Aguillard, 482 U.S. 578, 584 (1987) (The State exerts great authority and coercive power
through mandatory attendance requirements, and because of the students' emulation of teachers as role models and the
children's susceptibility to peer pressure). Cf Freedom From Religion Foundation, Inc. v. McCallum, 214 F.Supp.2d
at 915 (the offenders referred to Faith Works are adults and not easily indoctrinated school-age children.).
29
Teen Ranch v. Udow, 389 F. Supp. 2d 827 at 829. Teen Ranch was cited favorably by the Western District of Texas
in an opinion that upheld the state education board's denial of a certificate of authority to a creationist science program
against a Free Exercise challenge. See Institute for Creation Research Graduate School v. Texas Higher Education
Coordinating Board, 2010 WL 2522529 (W.D. Tex 2010).
30
Id. See also, Santa Fe Independent Sch. Dist. v. Doe, 530 U.S. at 291-92 (Student-led prayer at school event violated
Establishment Clause because Although the ultimate choice of student speaker is attributable to the students, the
District's decision to hold the constitutionally problematic election is clearly a choice attributable to the State.).

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H.B. 3859 specifically prohibits state and municipal governments from taking any adverse
action against a child welfare agencyincluding by withholding a grant or contractbecause
the agency provides or intents to provide children under [their] control, care, guardianship, or
directionwith a religious education, including through placing the children in a private or
parochial school. It therefore requires Texas to improperly contract with and fund organizations
that includeor even mandatereligious programming. Even if youth are able to opt out of
religious activities, or out of the program entirely, the placement of at-risk youth in programs that
offer religious instruction nevertheless violates the Establishment Clause, as this placement would
advance or endorse a particular religious viewpoint.

Finally, the larger context in which H.B. 3859 has been proposed suggests that it is intended
specifically to protect and advance particular religious beliefs about sexual orientation, gender
identity, and reproduction. While the bill specifically does not permit agencies to discriminate on
the bases of race, ethnicity, or national origin no such exception is made for discrimination on the
basis of sex, sexual orientation, gender identity, or disability. The Establishment Clause has been
construed to prevent the government from favoring or disfavoring any particular religion or
religion in general.31 To the extent that H.B. 3859 can be understood specifically to protect and
promote certain conservative beliefs about sex and sexuality, it raises serious Establishment Clause
questions.

For these reasons we believe that H.B. 3859 is misguided and unconstitutional. The
religious liberty rights of Texans already enjoy ample protection under state and federal law. Thus,
HB 3859 is not only a solution in search of a problem, it creates substantial constitutional problems
insofar as it reaches too broadly in an effort to protect religious liberty.

Sincerely,

William E. Forbath
Lloyd M. Bentsen Chair in Law
Associate Dean for Research
University of Texas School of Law

Diane M. Sumoski
Director and Supervising Attorney
Child Advocacy Clinic and Institute for Children's Rights
Southern Methodist University, Dedman School of Law

Jessica L. Roberts
George Butler Research Professor
Director, Health Law & Policy Institute
University of Houston Law Center

31
See, e.g., Board of Educ. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 696 (1994) (A proper respect
for both the Free Exercise and the Establishment Clauses compels the State to pursue a course of neutrality toward
religionfavoring neither one religion over others nor religious adherents collectively over nonadherents) (internal
quotation marks omitted).

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Joanna L. Grossman
Ellen K. Solender Endowed Chair in Women and the Law
Southern Methodist University, Dedman School of Law

Luz E. Herrera
Professor of Law
Texas A&M University School of Law

Sahar Aziz
Professor of Law
Texas A&M School of Law

Jessica Dixon Weaver


Associate Professor of Law
Southern Methodist University, Dedman School of Law

Jennifer Laurin
Professor of Law
University of Texas School of Law

Michael A. Olivas
William B. Bates Distinguished Chair in Law
University of Houston Law Center

* Affiliations are for identification purposes only.