Saturday, January 17, 2015

Senator's Religious Freedom Restoration Act Is Mainstream Legislation Modeled After Federal and Other State Laws

This morning Sheila Kennedy, attorney, IUPUI professor. and former Executive Secretary of the Indiana ACLU takes to the keyboard to offer her almost daily rant on her blog against the notion that the right of people to hold and practice their religious beliefs should be protected against government laws that pursue what she and others believes is good public policy.

Sen. Scott Schneider
One of the targets of Kennedy and her friends on the left is Senator Scott Schneider's plan to introduce a state Religious Freedom Restoration Act.  We are told by many on the left that Schneider's bill to protect religious freedom would abe n extreme, unprecedented measure, and perhaps even unconstitutional.  Of course, to make such statements liberals completely ignore the history of similar legislation at the national and state level.

The Free Exercise of Religion Clause long required that government accommodate religious practices and beliefs in the laws it passes.  In measuring whether a law violated the Free Exercise Clause, courts employed the Sherbert test which required a court to determine:  1) whether a person has a claim involving a sincere religious belief and 2) whether the government action is a substantial burden on the person's ability to act on that belief.   If those two elements were established, then the government must prove that the law is in in furtherance of a compelling state interest and that government has pursued that interest in the least restrictive means possible.

In the landmark 1990 case, Employment Division v. Smith, the Court, in an opinion written by Justice Scalia, curtailed the Sherbert test holding that federal free exercise exemptions did not apply to generally applicable laws.  That case involved two members of the Native American Church who were fired from their jobs as  counselors at a private drug rehabilitation clinic because they had ingested peyote as part of their religious ceremonies at their church.  The Court instead urged the aggrieved party to take up its complaint with the legislature.

The Employment Division v. Smith case outraged the public, including groups on the left and right.  Over 60 civil liberties and religious organizations joined together to form the Coalition for the Free Exercise of Religion, including the American Civil Liberties Union (at the very time that Kennedy was Executive Director of the Indiana affiliate of the ACLU), the Traditional Values Coalition, the Christian Legal Society, American Jewish Congress and National Association of Evangelicals.  The Coalition supported the introduction of the Religious Freedom Restoration Act, which would reimpose the Sherbert standard on all laws that burden religion.  The RFRA which was introduced by Chuck Schumer (D-NY) who was then a House member and now is a Senator, passed the U.S. House unanimously and the Senate 97-3.  President Clinton signed it into law in 1993.

Excerpts from the Act are as follows:
Congressional Findings and Declaration of Purposes:

The Congress finds that:
  1. the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution
  2. laws 'neutral' toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise
  3. governments should not substantially burden religious exercise without compelling justification
  4. in Employment Division v. Smith, 494 US 872 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.
The purposes of this Act are
1.     to restore the compelling interest test as set forth in Sherbert v. Verner, 374 US 398 (1963) and Wisconsin v. Yoder, 406 US 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and 
2.      to provide a claim or defense to persons whose religious exercise is substantially burdened by government.
 Free Exercise of Religion Protected:
(a) In General: Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).

(b) Exception: Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person
  1. is in furtherance of a compelling governmental interest; and
  2. is the least restrictive means of furthering that compelling governmental interest.
Judicial Relief: A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.
The constitutionality of the RFRA as applied to the federal government was upheld by the United States Supreme Court in 2006.  But nine years earlier, the Court had struck down as unconstitutional federal encroachment Congress applying the federal RFRA to states.  As a result, many states adopted their own RFRAs. These states are: Alabama (by constitutional amendment), Arizona, Connecticut, Florida, Idaho, Illinois, Kansas, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas and Virginia.  No state RFRA has been held to be unconstitutional, which undermines the silly claim that Delph's RFRA proposal is unconstitutional.

In those states which have not adopted a state RFRA, such as Indiana, the holding of Employment Division v. Smith applies, providing less protection for religious freedom than the Sherbert test which the federal government and 19 other states have reimposed.  Contrary to the insistence that Sen. Delph's introduction of a state RFRA proposal is somehow extreme, it is mainstream legislation that has received overwhelming conservative and liberal support, in an assortment of federal and state venues. Nor is it unconstitutional.  No state RFRA has been declared unconstitutional by the courts.

Having discussed the legalities of the RFRA, I want to conclude with a word about political strategy. Last year, I opined how the fight against same sex marriage was a losing cause and that instead Indiana conservatives should have been focused on passing a law to protect religious freedom.  That bill, introduced last session, would have received substantial support from both conservatives and liberals.  But now with blood in the water from the same sex marriage battle, those on the far left hostile to religious freedom are emboldened while conservatives are reluctant to take up legislation that should be a slam dunk It's all about priorities and last year conservatives shot themselves in the foot.

Note:  During an earlier version of this story, I incorrectly identified Senator Mike Delph as the author of Indiana's Religious Freedom Restoration Act.  Actually news reports indicate that Senator Scott Schneider will introduce the proposal, but as of today the RFRA does not show on the state's website as one of Schneider's bills.

1 comment:

D. Amirante said...

Senator Schneider,
I think the Religious Freedom Restoration Act (RFRA) would be detrimental to the most fundamentally held tenant of our constitution that prohibits making any law respecting the establishment of religion.
There is a critical evaluation of the RFRA that I have yet to see thoroughly assessed. What happens when religious beliefs come into conflict? Would you have the courts whittle away tax dollars for a trial whose outcome can only be governmental support for one religious belief over another?
A very simple example, a married couple want to adopt a child but they’re denied the opportunity based on religious beliefs that are prejudiced against same-sex couples. The married couple take their grievance to the court, backed by their fellow parishioners and church hierarchy because they are Christians who happen to believe that the Bible holds no prejudice against same-sex couples.
Senator Schneider, would you actually allow our judicial system to hear opposing views of Christian theology and make relevant deciding factors upholding one SECT of religion over another?
Same scenario, different point of view. Someone from the State Child Welfare Services decides that adoptable children are being FORCED to accept a particular religious point of view and decides to sue on behalf of all the children. The position is that those who should be serving the children’s best interest are prohibiting their better welfare and teaching them that our government supports a morality that includes legal discrimination based on religion.
Senator Schneider, when children are at their most vulnerable, when they need the most protection from strangers, shouldn’t those children be protected FROM religious beliefs that could be causing more harm than good?
And what about the many millions in tax dollars that will be spent for courts to do religious battle. I think that’s offensive and most of all I think it would undermine a fundamentally held tenant of our constitution that prohibits making any law respecting the establishment of religion – and that is what passing the RFRA attempts to bring about.