HB 542, Rep. Keith Ammon’s Religious Liberty Act, has been the subject of numerous falsehoods, distortions, and misunderstandings. Let’s set the record straight with a Q&A on the bill.
Q: What does the Religious Liberty Act do?
HB 542 has two purposes. First, the bill will protect churches from being treated worse than other essential services in states of emergency. For example, the bill would prohibit churches from being totally closed by the government while services such as grocery stores and hospitals are still operating. This is the main innovation of the bill.
A second, lesser, goal of the bill has become the subject of public debate. HB 542 also codifies the result of the New Hampshire Supreme Court’s State v. Mack decision in state statute.
Q: What was the Mack decision?
The Mack decision was issued in December of 2020. It interprets Part 1, Article 5 of the New Hampshire Constitution, also known as the state’s Free Exercise Clause. This clause protects religious liberty: the freedom of individuals and religious organizations to practice their faith.
In short, Mack said that, in cases involving religious liberty, New Hampshire courts must apply our state Free Exercise Clause in the same way that courts would apply any other constitutional right, such as freedom of speech.
Just as with other rights, religious liberty is not absolute. In religious liberty cases, New Hampshire courts must apply a balancing test to determine whether a government action is constitutional. Our state Supreme Court explained the balancing test this way:
Under Part I, Article 5, once an individual establishes that… government action substantially burdens his or her sincere religious practice… the burden shifts to the State to show both that the government action is necessary to achieve a compelling government interest, and is narrowly tailored to meet that end.
This might sound like confusing legal jargon, but don’t be discouraged. What’s important to understand is that this kind of test is normal in American constitutional law. Courts often use similar tests in free speech and other kinds of constitutional cases. The bottom line is simple: religious liberty must be treated like a normal constitutional right.
546-C:2 of the Religious Liberty Act takes this same protection, which is already provided under our state constitution thanks to Mack, and codifies it in state statute. In other words, it is a redundancy.
Q: Why was the Mack case so important?
Religious liberty protections are a contentious issue in US constitutional law—one I’ve published academic work on. In general, there are two dueling theories on federal and state free exercise rights.
The traditional view of religious liberty, dating back to the Framers of our federal Constitution, is that free exercise rights are an enforceable legal right, just like the Free Speech Clause and other better-known rights. James Madison, the leading architect of our federal Free Exercise Clause, put this view well: the right to the free exercise of religion, he said, is “held by the same tenure with all our other rights.”
An opposing view is that the Free Exercise Clause is a mere sentiment with no legal power in the courts—similar to a garnish on a plate. On this view, it should simply be left up to legislatures to decide whether religious liberty should exist.
Until State v. Mack, our state Supreme Court had not clearly taken a side in this debate. Fortunately, New Hampshire now accepts Madison’s view in interpreting the New Hampshire Constitution.
Q: Why is the idea of religious liberty protections controversial?
It didn’t used to be. In the 1990s, many Americans on both the right and the left were united in support of religious liberty protections. The Christian Legal Society and ACLU once stood side-by-side in support of applying a balancing test in religious liberty cases. At the time, the Free Exercise Clause was best known for being cited by groups like the Native American Church.
Over the last decade, however, religious liberty arguments have been increasingly used by traditional Christians to defend their rights against increasing infringement. In response, the ACLU has reversed its position and now argues that substantive Free Exercise protections should not exist.
The ACLU now warns that using a balancing test in religious liberty cases will allow Christians to engage in all kinds of wicked discrimination. They claim that it will create “a society in which businesses across this country could put signs up saying ‘we serve whites only,’ ‘music lessons for Muslims need not apply,’ ‘passport photos not for the disabled.’”
Q: Does protecting religious liberty mean allowing discrimination?
In one sense, the answer to this question is obviously yes. Rejecting a job applicant because he is an atheist is clearly discrimination. Yet if we forced Christian organizations to accept atheists as ministers and lay leaders, then Christian organizations could not exist.
Should Islamic religious organizations have a legal right to exist? If so, these organizations must be allowed to apply their doctrines and discriminate in who they hire on the basis of Islamic teachings. If they could not, they would cease to be Islamic organizations.
Unfortunately, for some opponents of religious liberty, this is exactly the point. A growing number of progressive organizations believe that Christian churches, schools, and other religious entities must be compelled to hire people who do not accept their beliefs and practices, forcibly dismantling organized expressions of Christianity and the church itself. They also aim for Christians like Elaine Huguenin, a New Mexico wedding photographer, to be legally ordered to attend religious ceremonies with which they disagree.
The real reason general religious liberty protections are contentious today is not because they permit invidious discrimination, but because they prevent authoritarians from maliciously imposing themselves upon their opponents.
Q: But what about discrimination outside of religious organizations, like in housing and commercial employment?
First, don’t be fooled by these kinds of arguments. Cultural progressives are not concerned merely with enforcing nondiscrimination in the secular commercial sphere. As early as 2012, President Obama’s Department of Justice argued that not even churches should have substantive Free Exercise Clause protections.
In their public rhetoric, however, opponents of religious liberty like to focus on imagined scenarios in which Christian restaurants put up signs excluding gay customers, or Christian commercial landlords evict gay tenants. The cultural left exploits these hypotheticals because they know that people of all backgrounds will rightly agree that this kind of discrimination is evil.
But to see why these hypotheticals are misleading, just look around New Hampshire right now. Mack is already the law in New Hampshire, and has been for five months. How many Christian restaurant owners or landlords are discriminating against LGBT people under the guise of religious liberty? As far the opponents of this bill have shown you, the answer is zero.
In the bright light of Mack, we can see that this caricature of Christians is nothing more than a shadow cast by the critics themselves. In fact, as one pastor pointed out during the Senate Judiciary hearing on HB 542, bills like this one are necessary because it is often Christians themselves who face discrimination.
The fact is that Christians desire, like Jesus, to associate with and befriend those with whom they disagree. Overwhelmingly, they do not wish to fire people with different values from for-profit businesses or deny them housing. They seek only for the law to respect religious pluralism and individual liberty.
Q: Even so, shouldn’t we rule out these scenarios just in case?
Even if a religious commercial landlord actually did eject gay tenants, this would not be allowed under Mack or HB 542. Remember that the balancing test in Mack and this bill is just that: a balancing test. It does not categorically cancel out non-discrimination laws. Instead, it ensures that both religious liberty and the state’s interest in non-discrimination are accommodated.
If these kinds of nightmare scenarios ever occurred, a court would easily find that a government prohibition on discrimination is “necessary to achieve a compelling government interest, and is narrowly tailored to meet that end.” In fact, it is doubtful whether a commercial landlord could even explain how renting to people with different beliefs and practices somehow burdens his religious exercise.
Still, Cornerstone has consistently said that it will not oppose amending the bill to limit the protections for “associations” to religious associations only. To be clear, however, we see this as a political concession rather than a legal one. Because the businesses in these hypotheticals would already have a weak case under the 546-C:2 balancing test, we do not think this amendment would significantly change the substantive impact of the law.
And even if such an amendment is passed, do not be under any illusions about whether progressive organizations will change their position on this bill. These groups are not seeking to protect pluralism, but to forcibly dismantle traditionally religious organizations.
Q: What would happen if all of the “balancing test” language was simply removed from the bill?
A recent editorial by the Keene Sentinel has suggested that the Senate “should amend HB 542 to limit its scope to address only how houses of worship are treated under state of emergency rules.” Again, however, Mack already articulates the balancing test that the authors of this editorial want to remove. That means whatever problems they are afraid of should already be visible in New Hampshire. Where are they?
In any case, if the Senate did strip everything from HB 542 except for the state-of-emergency protections, religious liberty protections will be in essentially the same position as if the Senate passed the bill without amendment. Once more, this is because the balancing test in 546-C:2 duplicates protections already afforded by our state Constitution under Mack. So the answer to this question is “not much.”
This fact shows that many of the histrionics displayed by progressive opponents of the Religious Liberty Act are a performance. They are distressed, not because they truly fear a radical change in the law, but by the symbolic defeat of having these protections codified in state statute.
Q: So the Religious Liberty Act doesn’t repeal any non-discrimination laws?
No. The bill says nothing about any non-discrimination law: it simply provides general protections for religious liberty. Opponents of the bill argue that religious liberty itself promotes discrimination and is therefore harmful.
Yet if religious liberty must always give way to non-discrimination, this means that religious organizations cannot be allowed to exist. Christians and people of all faiths should therefore be deeply concerned about the debate over this bill and what it says about the future of religious liberty in New Hampshire.