Minnesota House to consider re-inserting ‘religion’ in Equal Rights Amendment during Monday floor debate

Much of the attention on the current Minnesota House version of the Equal Rights Amendment has been on what has been added since the Senate adopted its measure one year ago.

Attempts to include abortion rights have been met with both celebration and criticism, partly for the words used to cover reproductive rights.

But there are also concerns over what was left out. The Senate language that received the support of all 34 DFLers and nine Republicans did not include abortion access but did include both “age” and “creed.” Both words are missing from the House version.

Sponsors have said throughout the session that creed is not well defined in state law and the freedom of religious expression is already in the state constitution’s Article 1, Section 16.

“It didn’t get stripped out,” said Rep. Kaohly Vang Her, in response to assertions that the word “creed” had been removed from the House version. “Minnesota’s constitution has already included strong protections against discrimination on the basis of religion,” Her told the House Rules Committee last week. “Religion and religious beliefs are already offered the highest of constitutional protections in Minnesota.”

The House proposal also contains this sentence:  “This section does not limit or narrow existing rights in​ this constitution.”

But faith leaders and many Republican legislators are worried. If “creed” was deemed necessary by Senate DFLers when they wrote their version, why wouldn’t it remain — perhaps replaced with the better defined religion — in the House version? That it wasn’t leaves them left to speculate whether there was a reason.

“I can’t speak to why it got taken out. I have no idea. It doesn’t make sense,” said House Minority Leader Lisa Demuth, R-Cold Spring. “If their excuse is that it is already covered then there should be no problem with keeping it in.

“I can’t speak to their motive but I believe everything done by the majority is very intentional,” Demuth said. She noted that DFL legislators and attorneys for advocacy groups have been wordsmithing the amendment for months. 

To be clear, the same legislators and faith groups oppose the House version of the ERA for other reasons — specifically the inclusion of abortion rights and the more-detailed gender identification protections. Some of the people at a midweek press conference calling for inclusion of “religion” in the House language said they would oppose it even if the word was added. Several termed it the “so-called ERA,” and attorney Rene Carlson said it could force religious groups to “acquiesce to the government’s near-liturgical worship of gender ideology and abortion or choose to violate the law.”

But they point out that the Senate version that included protections for creed and gender identity but lacked the abortion and pregnancy provisions, received nine GOP votes last May.

“Comparing the language from what was in the Senate would have a better chance than what is being proposed to have bipartisan support,” Demuth said. 

RELATED: Minnesota supporters of Equal Rights Amendment optimistic despite Senate turmoil

Jason Adkins is the executive director of the Minnesota Catholic Conference. At a press conference Wednesday Adkins said that his concern is that taking religion out is intentional so that the rights listed “will supersede any claims of religious freedom and religious protection.”

“It is very troubling that legislators are considering depriving Minnesotans of an important legal remedy against religious bias by failing to include religion in the list of identities and classes protected by the proposed Equal Rights Amendment,” Adkins said. “The practical effect of this omission is it communicates as a matter of our fundamental law that protecting people from religious discrimination — whether they practice a religion or not — is not a compelling governmental interest.”

Adkins said he worries that claims of religious discrimination by governments will receive less judicial scrutiny than claims of discrimination against other groups and identities in the amendment. 

Rabbi Avigdor Goldberger of the Minneapolis Community Kollel said that if he had to pick an adjective to describe how he feels as a Jew, it would be “grateful” and that if he had to pick an adjective to describe how he feels as a Minnesotan, it would be “concerned.”

“As a Jew I am grateful that democracy is an inclusive and ever-evolving process where mistakes and oversights can be corrected,” Goldberger said. “As a Minnesotan I’m concerned of the consequences should we fail to make those corrections. So, as a grateful and concerned Jewish Minnesotan, I call on the state Legislature to fix this amendment to assure that religion is still able to be practiced freely while protecting the civil rights of all people.” 

Backers of the House language have also said that the term “creed” as included in the Senate version, lacks definition in state law and has less case law around it. Adkins agreed, saying he prefers that the word “religion” be included in the amendment rather than creed.

“Religion is broader than creed,” he said. “It speaks to a whole variety of practices. It has a whole line of jurisprudence in the case law. It matches up with words in our law and case law. Religion has a stronger legal pedigree than creed.”

‘Religion’ amendments on House floor Monday

The proposed amendment, which still does not have signoff from DFLers in the Senate, is set to be debated in the House Monday. 

House Majority Leader Jamie Long, DFL-Minneapolis, said DFLers “have worked really hard on the language to try to get it right.” 

“We’re gonna be passing it on Monday. It’s gonna be a really important step forward for our state to finally enshrine equal rights into our constitution and to make sure that we are including reproductive rights in our constitution.”

Regarding the Senate, Long said: “We’re hoping that at the end of the day, they’ll be able to accept and concur.

Senate Majority Leader Erin Murphy didn’t commit to that result.

“We’ll see if they take it up and send it over our way,” the St. Paul DFLer said Thursday. “And when we get it we’ll take the next steps.” But Murphy said she wasn’t certain whether the Senate would accept the House version or push into a House-Senate conference committee to find agreed-upon language.

Demuth said House Republicans will be ready with amendments Monday, and there were some two dozen proposed amendments posted for Senate File 37, including one placing the word “religion” back in the measure.

There is a similar amendment proposed by a DFL member — Rep. Dan Wolgamott of St. Cloud.

Demuth also has submitted an amendment that would replace all of the proposed House DFL constitutional amendment language with one sentence: “Equality of rights under the law shall not be denied or abridged by the state the the political subdivisions of the state on account of sex.”

Long has proposed an amendment that would add: “a law of general application, which is neutral on its face to religious belief or conduct is not invalid because the law incidentally infringes on a religious practice.”

Long said Monday that while he doesn’t expect the amendments adding religion to the language will pass, he said his amendment will be offered if it does. His amendment would place some limitations on potential court interpretation of the word.

Strict Scrutiny

“Any action by the state that denies an individual’s equal rights shall be invalid unless,​ at a minimum, it is the least restrictive means of achieving a compelling governmental​ interest.” That sentence is contained in the House DFL proposal to be clear to the courts that the highest standard of scrutiny should be applied to any future laws that implicate the amendment, sponsors say.

Strict scrutiny is the legal test that the U.S. Supreme Court has created over time to say that certain fundamental rights need maximum protection. According to this legal dictionary from the Legal Information Institute at Cornell Law School, when a government action is alleged to violate fundamental rights, the court requires the government to show that it had a “compelling governmental interest” in doing so and that the action was narrowly tailored to achieve that interest.

Due to its presence in the First Amendment to the U.S. Constitution, freedom of religion is a fundamental right. In Minnesota, drafters of the ERA amendment have said it has similar standing in the state constitution.

“We have strong protections in our constitution already for the free exercise of religion, and this ERA does not restrict those rights at all,” said Rep. Kelly Moller, DFL-Shoreview, before adding that “an individual’s right to practice their own faith does not include the right to impose their beliefs on others.”

Adkins said that the current constitutional language is “necessary but not sufficient.”

“It’s not sufficient in this context where we’re giving the highest level of protection to claims of pregnancy discrimination, gender identity etc., which some people hope will supersede other interests,” Adkins said.

The new ERA language was heard the same week that the Legislature approved an amendment that makes clear that religious organizations and religious schools cannot be legally challenged for discriminating against transgendered people. The state Human Rights Act already allows such an exemption for sexual orientation. But a change in the definition for discrimination protections based on gender identity did not include a similar exemption. Faith groups and GOP lawmakers raised the issue this session. And while DFL leadership at first resisted the change, it was added to state law in an amendment to an omnibus bill now headed to Gov. Tim Walz.

But that exemption would be in statute, something that can be changed and could be found in violation of the constitution should the proposed House language of the ERA be approved by voters in 2026, the faith leaders said.

“In a quick about-face by the Legislature, the pluralism that is recognized in the religious exemption is in peril,” said Greg Johnson, a vice president at the University of Northwestern.

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