Dangerous “Emergency Disaster” Bills Seek Unprecedented Religious Exemptions

Heather L. Weaver
Senior Staff Attorney, ACLU

State legislation authorizing religious exemptions from non-discrimination laws and other vital legal protections has been of constant concern in recent years. Earlier this year, however, “emergency disaster” bills proposed in several states took religious exemptions to a whole new, never-before-seen level. Exploiting the controversy over in-person gathering restrictions put in place at the start of the COVID-19 pandemic, the bills sought to give religious organizations, their officers, and their employees blanket immunity from all civil and criminal liability as long as they claim to be exercising their faith while engaging in the unlawful conduct — all under the guise of protecting the ability to worship during public emergencies or disasters.

Arizona’s H.B. 2648, for example, would have added an entirely new article, entitled “Religion is Essential,” to the state’s civil rights code. Like many narrower bills proposed and enacted in other states, the legislation would have allowed in-person worship services during emergency disasters, no matter the danger they may pose to public health or others. But H.B. 2648 went much further: It would have applied beyond the disaster and public emergency context to allow an array of unprecedented religious exemptions from nearly any law at any time.

If it had passed, Arizona’s H.B. 2648 would have meant that:

•  religious organizations could claim immunity from criminal prosecution or civil liability for the sexual abuse or physical harm of children in connection with religious activities or rituals;

•  religious organizations could be shielded from the consequences of violating state nondiscrimination laws that conflict with their religious beliefs;

•  houses of worship that violate fire codes by exceeding capacity limits during religious services could not be fined or otherwise forced to comply with the law;

•  religiously motivated hate group could avoid prosecution for criminal activities associated with exercising their beliefs; and

•  patients at religious hospitals would be unable to sue for medically negligent or reckless care that was provided based on the hospital’s religious beliefs.

Religious organizations would have even been exempt from more mundane laws. For example, the bill’s provisions could have allowed a church to refuse to pay speeding tickets incurred by church-owned vehicles while they were transporting congregants to and from religious activities.

Moreover, the bill would have prohibited the state from denying state contracts, licenses and certifications, and tax exemptions based on religious organizations’ exercise of their faith, forcing officials to give government contracts to groups like the KKK, which claim to be religiously based, or organizations that claim a religious right to discriminate against certain social-services beneficiaries. The state also would have been barred from recovering public funds used by religious organizations for fraudulent or improper purposes (as long as the funds were used while engaging in religious activities) and from denying a religious daycare a license or accreditation to operate even if the organization’s religious beliefs and practices prevent it from complying with relevant child-protection laws. H.B. 2648 even would have required Arizona to approve tax-exempt status for a religious charity that refuses to hire Black people.

Thanks to the relentless efforts of opponents, including the ACLU, American Atheists, Americans United for Separation of Church and State, and numerous advocates and religious groups on the ground in Arizona, H.B. 2648 was narrowly defeated. A similar bill proposed in South Carolina, H.B. 3105, would have amended the state’s Religious Freedom Act, but it also failed.

Unfortunately, however, both Montana and Arkansas enacted their own versions of the bill, exempting religious organizations and individuals from various laws during public emergencies and disasters, without any regard for the danger posed and despite the fact that secular activities of comparable risk may be prohibited. Fortunately, both states appear to have amended only their emergency and disaster codes, which strongly suggests that the exemptions will at least be limited to that context—unlike with the Arizona and South Carolina measures.

Granting religious organizations sweeping immunity from nearly every law—from the mundane to our most critical legal protections—is dangerous, especially during disasters and public emergencies. We will be on alert for similar bills in the upcoming state legislative sessions across the country and will continue to vigorously oppose efforts to pass these religious exemptions on steroids.