The Colorado Secretary of State’s title board on Wednesday approved language for a “religious freedom” ballot initiative submitted last month by Colorado Springs-based evangelical organization Focus on the Family. Supporters of the initiative can now begin collecting the roughly 86,000 valid voter signatures it will take to land the proposal on election ballots this November.
The controversial initiative taps into the increasingly heated tug of war over social issues waging between Christian organizations and representatives of the government, most recently, for example, on the question of whether employers should be required to provide insurance coverage for contraception.
As submitted, the title of the initiative contains one sentence. It proposes to add “an amendment to the Colorado Constitution expressing the public policy of the state of Colorado that government may not burden a person’s or religious organization’s freedom of religion (pdf).”
An initiative title is the language that appears on ballots for voters to read. It describes the intent of the initiative and is required to be written in as straightforward a manner as possible.
According to sources at the hearing, the board yesterday made only small, non-substantive changes to the religious freedom title language before approving it.
Initiative proponent Tom Minnery, executive director of CitizenLink, Focus on the Family’s political arm, was not immediately available for comment.
Initiative opponents, however, told the Colorado Independent that the initiative language is deceptive, that it would not so much protect religious freedom as blow open exemptions in state and federal law, effectively setting up a separate legal standard for any person or group claiming to be motivated in their actions by faith.
The opposition is being led by a coalition of groups that include gay-rights organization One Colorado, the Interfaith Alliance of Colorado, Planned Parenthood of the Rocky Mountains and the Colorado chapter of the American Civil Liberties Union, among others. Coalition representatives told the Independent they are determined to challenge the title as too vague and legally fraught, either by appealing to the title board, challenging the title in court, or both.
“We’re prepared to go to the [state] Supreme Court,” said One Colorado Executive Director Brad Clark. “The measure is not only vague, it’s also unnecessary. Protections for religious freedom are already written into the state and U.S. constitutions. We think [the initiative] is redundant, which raises questions about the true intent here. We think there should be a lot more public discussion about this proposal.”
Supporters of the initiative have made the case for it in the past by citing the fact that displays of faith in the public sphere have come under fire. They point to the case in Littleton, Colorado, for example, where legal wrangling bogged down efforts to erect Christian memorials at Columbine, the public high school where 13 people died in the tragic shootings of 1999.
Clark and others, however, say Columbine, although a powerful point of reference, is perhaps less relevant than more recent battles over contraception, abortion and gay equality. Those battles, they say, provide context vital to understanding what’s at stake.
“We’re concerned about the civil rights implications,” Jeremy Shaver, executive director of the Colorado Interfaith Alliance, told the Independent. “We think the way the initiative is written could provide legal cover for discrimination.”
Shaver said employers might lean on the amendment to refuse to hire divorced women. Landlords could avoid renting to unmarried couples. Doctors or pharmacists could decline to treat or serve gay patients and customers.
Cardozo School of Law Professor Marci Hamilton, who specializes in constitutional state and religion questions, has argued for years against what she calls the new wave of “extreme state religious freedom… legislation.” She says initiatives like the one Focus on the Family is proposing for Colorado would lift important legal protections that guard the public against potentially harmful actions motivated by religious belief.
Hamilton has said that women seeking abortions and gay people seeking housing or employment are examples that come immediately to mind, but that children are perhaps the most vulnerable population in these matters. In testifying against similar proposals elsewhere (e.g.: pdf), Hamilton has pointed out that children have been forced by adult minders of various faiths to go without inoculations or to depend on prayer alone to cure illness, for example, and that they have also been subjected on a vast scale to physical and sexual abuse that can be covered over with reference to religious belief or ritual.
Hamilton says the legal history tied to the struck-down federal Religious Freedom Restoration Act of 1993 and the subsequent state versions that cropped up in its wake documents a struggle to balance legal priorities and to shift burdens to protect or to not infringe upon constitutional rights.
“The very name of the Religious Freedom Restoration acts connote America and apple pie,” she wrote in a 2010 essay. “Who could disagree with a law in favor of restoring religious freedom, which is our constitutional right?
“Yet, providing such a low threshold for a religious group or individual to avoid… accountability virtually guarantees that such groups will be able to hide behind high legal barriers.”
In addition to mounting a challenge to the initiative title, One Colorado has already submitted a sort of companion initiative to the state that seeks to clarify laws governing “actions related to religious belief” by tying them more specifically to the private sphere (pdf).
Clark called the One Colorado initiative “definitional” and described it as “just another avenue” to expand public safety and equality safeguards.
For politics and religion watchers in Colorado, the battle this year over the initiative recalls a battle fought in 2010, when Focus on the Family, acting with the Catholic Church, submitted a first-round version of its religious freedom proposal. That version drew similarly strong opposition and the proponents pulled it in the face of an impending Supreme Court challenge.
One of the initiative proponents in 2010 was Jenny Kraska, director of the Colorado Catholic Conference, the political wing for the Church’s three dioceses in the state. Representatives of the Catholic Church have not signed on as proponents of this year’s version nor yet declared public support for it, although the Church is supporting similar efforts around the country, including in North Dakota and Kansas.
Messages left with the Colorado Catholic Conference were not immediately returned.