A Plea for Religious Exemption Hangs in the Balance

By David Carroll

Christian Action Network Chairman of the Board

The secular war against Christianity continues apace. The City of Austin has adopted a nondiscrimination ordinance that prohibits discrimination based upon sexual preference and “gender identity” (whatever that may mean). Unlike federal and various state nondiscrimination laws, there is no exemption for churches.

In Austin, churches may no longer refuse to consider hiring practicing homosexuals, or presumably transgender folks, or women, as lead pastors.

All Christians I know strongly believe in the “love-the-sinner, hate-the-sin” principle. We all know that Jesus broke bread with sinners. (Mark 2:16) God loves us all, including homosexuals and transgender people. But that does not mean that sinners who celebrate sinning (such as Gay Pride) should lead a church.

The secular world hates it that Christianity views homosexual behavior as sin, but there it is. The Bible is quite clear on the subject. Historically until the current crop of secularists, all society for thousands of years recognized homosexuality as deviant and sinful. Today, the secular world is at war with Christianity over this and other issues.

The U.S. Pastor Council is a nonprofit corporation in Houston Texas with about 1,000 member churches. On October 6, the USPC filed suit against the City of Austin over the nondiscrimination ordinance. It is asking the United States District Court for the Western District of Texas to declare the ordinance unconstitutional at least as applied to churches.

The legal issues are tough, as it turns out. First some history.

In 1963, the United States Supreme Court in Sherbert v. Verner said that a religious exemption is presumptively required by the United States Constitution, specifically that a Seventh Day Adventist was entitled to unemployment benefits even though she refused to consider employment that required her to work on her Saturday sabbath. Her religious exemption was granted.

In 1990, the Supreme Court severely limited the Constitutional interpretation expressed in Sherbert. In Employment Division v. Smith, the majority including the most conservative justices’ opinion was that the unemployment compensation law of Oregon, which denied unemployment benefits to users of illegal substances, rightfully denied benefits to a peyote user who claimed that the Native American illegal peyote use was “religiously inspired.” The Constitution did not require a religious exemption for drug use under the “Free Exercise” clause, the justices concluded.

Apparently concerned about government encroachment into the free exercise of religion, Congress enacted the Religious Freedom Restoration Act of 1993 (RFRA) to require religious exemptions in laws that would restrict the free exercise of religion.

In 1997 the Supreme Court decided City of Boerne v. Flores. It was a zoning case where a church was denied a building permit under a historic preservation ordinance. The Supreme Court said that with enacting RFRA, Congress exceeded its enforcement authority by too much meddling in state regulatory power.

It is unclear how the current Supreme Court would rule on whether the United States Constitution requires a church exemption for a nondiscrimination ordinance. In Smith, the conservative justices would not agree to a mandatory religious exemption for drug use, but conservative justices are likely to be more sympathetic to a church being forced to hire a pastor openly engaged in activities the church sincerely considers sinful.

This case may never make it to the Supreme Court. The USPC also asked the Court to declare that the Texas Constitution and the Texas Religious Freedom Restoration Act (Texas RFRA) require religious exemptions from the ordinance.

the forced hiring of pastors disqualified by sinful activity, including homosexuality, seems to me to amount to maintaining a ‘ministry against his consent’

The Texas RFRA prohibits the government from substantially burdening a person’s free exercise of religion unless the government has a “compelling governmental interest” and as long as the burden is the “least restrictive means of furthering that interest.” What constitutes a “compelling governmental interest” is not clearly defined.

The Texas Constitution includes a clause for freedom of worship:

Sec. 6. FREEDOM OF WORSHIP. All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. 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. But it shall be the duty of the Legislature to pass such laws as may be necessary to protect equally every religious denomination in the peaceable enjoyment of its own mode of public worship.

The forced hiring of pastors disqualified by sinful activity, including homosexuality, seems to me to amount to maintaining a “ministry against his consent” in violation of the language of the Texas Constitution. But I am not admitted (to practice law) in Texas and cannot offer or reason legal opinion on the issue.

What do I think? This is an important battle in the secular war against Christianity. It is thoroughly wrong to force Christians to celebrate sin or to accept sinful behavior clearly described in the Word of God. I pray that the U.S. Pastor Council prevails in this lawsuit, although the government has some wiggle room. It is by no means a slam dunk.