“Oklahomans for Equality is deeply disappointed in the governor’s lack of leadership. The pervasive and persistent mean-spirited legislative efforts continue to be day-to-day business in Oklahoma,” he said, suggesting recourse to the Oklahoma Supreme Court would be considered.
However, several legal scholars backed the bill’s constitutionality in an April 12 letter to State Rep. Travis Dunlap and State Sen. Greg Treat. Constitutional criticisms of the Oklahoma bill are, in their view, “obstructionist objections with no basis in existing law or in original understanding.”
The letter’s signers were professors Michael A. Scaperlanda of the University of Oklahoma College of Law; Richard W. Garnett of the University of Notre Dame Law School; Douglas Laycock of the University of Virginia School of Law; and Thomas C. Berg of Minnesota’s University of St. Thomas School of Law.
“The Supreme Court is deeply divided on the question of whether religious exemptions are sometimes constitutionally required. But the Court has repeatedly been unanimous in support of the view that religious exemptions are constitutionally permitted,” they wrote.
“This provision would create an exemption from any provision of state law that might otherwise require an agency to violate its religious commitments,” they said, saying such exemptions have been an American legal tradition since the 1600s.
They cited a 1992 study which estimated there are 2,000 religious exemptions under federal and state laws. Many more exemptions have been enacted since then.
While there are limits to appropriate bounds of religious exemptions, the scholars said, the Oklahoma bill “does not come close to triggering any of these limitations.”
The 61 state-monitored child placement agencies in Oklahoma make “an ample number to meet the diverse needs of all Oklahomans, including LGBT children and LGBT adoptive parents.” With these “readily available alternatives,” said the scholars, the bill is “a model of liberty and justice for all.”
“The religious providers need not violate their conscience, and the needs of all Oklahomans are served.”
While critics of the bill had charged that it constituted the unconstitutional establishment of religion, the scholars said “exemptions are not a way of expanding the power of the dominant religion; they are a way of protecting religions that lack the political power to prevent legislation or court decisions that impose substantial burdens on their religious practice.”
“Government does not establish a religion by leaving it alone. The Supreme Court has repeatedly, and unanimously, so held,” they continued.
(Story continues below)
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Receiving government funding does not bind private organizations to be treated as if they were state agencies, they explained: “if a child-placing agency with state funding chooses to act in accord with its religious convictions, the state has not directed that choice, the state is not responsible for it, and the child-placing agency’s choice is not state action.”
Fallin said similar legislation has existed in Virginia since 2012 without any court challenges. Five additional states have similar legislation, while Kansas Gov. Jeff Coyler has said he will sign legislation recently passed by the state legislature.
Fallin said the bill would not affect any current practices allowing LGBTQ individuals and couples to foster and adopt. She said she is committed to “preserving the rights of all Oklahomans who are eligible and want to be considered for parenting.” She announced a planned executive order directing the state’s Department of Health and Human Services to publish on its website a list of Oklahoma adoption and foster care agencies who are “willing to serve everyone” who meets the state’s adoptive parent criteria.
A significant advocacy campaign to limit religious freedom protections is underway across the U.S. CNA reports have found at least $8.5 million in earmarked grants from several wealthy funders, including some of the most influential foundations in the country. Many of these funders are now working together through the Massachusetts-based Proteus Fund’s Rights, Faith & Democracy Collaborative, which says it opposes “the inappropriate use of religious exemptions to curtail reproductive health, rights and justice, discriminate against members of the LGBTQ community, and otherwise undermine fundamental rights and liberties essential to a healthy democracy.”