As new state legislative sessions kick off across the nation, observers on both the right and left are forecasting a flurry of bills reflecting a conservative, religious agenda that addresses everything from health care access to critical race theory.
While conservative policymakers and their supporters say most of these bills boil down to protecting First Amendment rights, critics argue that the legislation would actually undermine religious freedom protections and harm the country as a whole.
“White Christian nationalists may not physically attack the Capitol again, as on Jan. 6,” said Nick Fish, president of American Atheists. “But the movement is assaulting the rights of atheists, racial and religious minorities, LGBTQ people and many others with their extremist legislation.”
Christian conservatives supporting these laws say they’re intended to protect everyone.
Providing people the freedom from activities that violate their religious convictions has “long been a core American value,” said Matt Sharp, senior counsel for Alliance Defending Freedom, who pointed to a Supreme Court ruling that said that public school students can’t be forced to say the Pledge of Allegiance as an example.
“When we protect First Amendment rights for one group we really protect them for all Americans,” Sharp said.
The 2022 legislative horizon
This year’s state legislative activity will likely follow trends that were present last year, according to policy experts. Major debates from 2021, including over the rights of transgender athletes and abortion restrictions, won’t be resolved anytime soon.
Sharp said that, this year, the Alliance Defending Freedom will continue to push for the protection of free speech on college campuses, as well as the preservation “of fairness in women’s sports.”
Other conservatives highlighted the need to pass heartbeat bills similar to SB8 in Texas, which makes most abortions illegal after the sixth week of pregnancy.
“We want our state conventions and congregations to be well-equipped to safeguard life,” said Chelsea Sobolik, the policy director of the Southern Baptist Committee’s Ethics and Religious Liberty Commission, highlighting the possibility that the Supreme Court will overturn Roe v. Wade this year.
That safeguarding process includes considering policies that will help nongovernmental organizations cope with an expected surge in foster children in the wake of abortion bans, Sobolik added.
Sen. Jason Rapert, who is a state senator in Arkansas and the president and founder of the National Association of Christian Lawmakers, said state legislators in his organization are also prioritizing National Motto bills in order to get the words “In God We Trust” into classrooms across the nation.
Critics say that the “In God We Trust” bills and others could lead to a dangerous chipping away of the wall between church and state.
“The fundamental right to be treated equally under the law depends on the separation of church and state and the separation of church and state is a foundational American principle,” said Nik Nartowicz, state policy counsel for Americans United for Separation of Church. “Ultimately all these bills are a threat to democracy because they undermine these important principles.”
In its annualState of the Secular States report, American Atheists highlighted a number of faith-related issues, including that conservative lawmakers are using religious freedom as an excuse to weaken nondiscrimination protections.
In 2021, there was “an assault on nondiscrimination laws,” said Alison Gill, vice president of legal and policy for American Atheists. She called the 2021 state legislative session “the worst … for civil rights in more than a decade.”
Two of the bills that fueled Gill’s concerns focused on the rights of health care providers. In 2021, both Arkansas and Ohio passed policies that allow doctors and others to refuse to perform procedures that they feel would violate their religious beliefs.
The legislation isn’t “just about abortion care,” Gill said, arguing that “denial of care” bills disproportionately harm the LGBTQ community.
However, the sponsor of Arkansas’ “Medical Ethics and Diversity” bill said that the legislation is not intended to stop anyone from getting medical treatment.
“If you want to go out and have a sex change, this does not deny you — you have to just find someone to do it,” said the legislation’s sponsor, Arkansas State Sen. Kim Hammer.
Hammer said he views the bill not as a strike on the rights on some Americans but, rather, as legislation that protects providers’ freedom to exercise their religious beliefs.
“If it is being interpreted as a denial (of care) bill that’s an imperfect interpretation of the bill,” said Hammer. “No one is being denied service. It does provide protection for those (providers) against being forced to do something that they don’t agree with.”
“Medical rights of conscience” bills uphold First Amendment freedoms of free speech and religious liberty, said Sharp.
In addition to being concerned about the content of some of the bills being championed by religious conservatives, Gill is worried about the new enforcement tactic they’re promoting.
“In 2022, I’m concerned about seeing SB8 (Texas Senate Bill 8) style measures … in all different places in the law,” she said, referring to the aspect of the Texas abortion ban that allows for widespread public enforcement through civil lawsuits.
This is a mechanism that Democrats are starting to use, as well, which has led legal experts to voice their concern about what public enforcement through civil lawsuits might mean for the health of our democracy.
“The whole point of a modern society is that we create the infrastructure to do the regulation so people don’t have to surveil one another,” said Jon D. Michaels, a law professor at the University of California, Los Angeles, to the Deseret News last week. “Part of the evolution of a modern society is for neighbor not to have to police neighbor because that rarely ends well. It usually ends with one party subordinating another.”