In Employment Division v. Smith (the infamous 1990 case that led to Congress and state legislatures having to pass RFRAs to protect religious freedom), the Court took the bizarre position that, although
|Sen. R. Michael Young|
In short, courts have taken the position the Free Exercise of Religion is not only a subordinate right to a constitutional right like Free Speech, but is basically on the same level as a statute. Bizarre
Apparently State Sen. Mike Young has recognized the intellectual inconsistency with the courts' approach to constitutional rights. Republican Senator Young, who is an attorney, has introduced a bill that certain fundamental rights guaranteed by the federal and Indiana constitution have to be applied evenhandedly. The Indianapolis Star reports:
A year after the controversy, some Republican state lawmakers are ready to throw out Indiana's Religious Freedom Restoration Act — and try again.
Sen. R. Michael Young, R-Indianapolis, is proposing repealing RFRA and putting in new protections of fundamental rights.
"The purpose of this chapter," reads Senate Bill 66, "is to provide a concrete guarantee to the citizens of Indiana that their fundamental constitutional rights will be recognized, preserved, and protected."
The legislation specifically names six constitutional rights that are to be "treated with the greatest deference" by the government:
- the right to worship;
- the right to free exercise and of conscience;
- the right to freedom of religion;
- the right to freedom of thought and speech;
- the right of assemblage and petition; and
- the right to bear arms.
"We want those protected at the highest standard," Young told The Indianapolis Star. "It protects our freedom."
Even though those rights are written into Indiana's constitution and the federal Constitution, Young said his legislation would still be needed to shield individual rights through the strictest judicial standards.Senator Young is absolutely correct. Our fundamental rights found in state and federal constitutions mean nothing if they are rendered subordinate via judicial decisions. Employment Division v. Smith effectively reduced the Free Exercise Clause to the level of a statute that can be overridden by the enactment of another statute.
The article goes on to quote a law professor's response to Sen. Young's bill:
... Indiana University
McKinneySchool of Law [at Indianapolis] professor Robert Katz questioned why the bill would pick out just six of 37 sections in the state constitution's bill of rights, including several religious rights — and leave out other inalienable rights, such as the right to equal privileges and immunities.
"It would effectively amend the Indiana Bill of Rights to create a two-tiered system of rights," Katz said.The bill is set to be heard on January 20th at 9:30 am in Room 130 of the Indiana Statehouse.