Wednesday, January 6, 2016

Indiana Senator Proposes Protections for Constitutional Rights

One thing that has always baffled me, and was going to be the subject of a future column, is the bizarrely uneven approach courts take to constitutional rights, particularly those found in the First Amendment.   

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
religious freedom is protected by the First Amendment, that freedom can be limited by the adoption of a simple statute - as long as the legislative body has some legitimate reason for the adoption of the law and it is applied evenhandedly.  Yet courts don't take that same approach to free speech.  Our free speech rights can't be limited by legislative bodies passing a law which, for example, outlaws speech that promotes hate, racism or bigotry.  Yet, using the Employment Division v. Smith test those limitations on free speech would survive a court challenge.

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 McKinney School 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. 


Anonymous said...

Repeal RFRA and leave the Indiana Constitution as it is written. I agree that picking out these few rights over others would create a two-tier system. We do not need to improve on the language of the US or Indiana Constitutions when it comes to our God-given rights which apply to everyone equally and are meant to be protected by the government equally and for everyone. It is ludicrous to think any words need to be added or deleted from the original.

Besides, government has no business telling private businesses how they must operate, who they must serve, what they must create or produce, or any of a number of others things that government is constantly telling citizens they must do. The People created government for the purpose of serving the people, not to control them.

Why can't we get this right today when the Founders were so very clear? Our education system is sorely lacking when most citizens no longer know what their rights are, what the purpose of government is, and what liberty means. It's time to get back to it.

Paul K. Ogden said...

Anon 11:12,

Regarding paragraph #1, you're completely overlooking that the actual words of the Constitution have no meaning if courts are going to render them a mere nullity in court decisions regarding how they're applied. In Employment Division v. Smith that's exactly what the United States Supreme Court did with regard to the Free Exercise Clause - said that's what the words in the Constitution says, but if legislative bodies come up with rights via statute they deem superior, religious freedom has to take a back seat. That is what made necessary federal and state RFRAs to make the courts interpret the Free Exercise Clause with some actual teeth.

Regarding paragraph #2, RFRAs have nothing to do with this as courts have long ago said RFRAs are subordinate to any legislation. It was always a farce that RFRAs had to do with allowing someone to not serve someone . That latter issue has always depended on the how the civil rights law of that municipality or state is written.

Regarding paragraph #3, the interpretation of the Free Exercise Clause has changed over the years. I do think it's clear that the Founders intended to elevate religious freedom. But many courts have decided otherwise and reduced religious freedom to the level of ordinary statutes. It's those black robed judges that need to be educated. Of course there are many who know otherwise, but think that they have a right to ignore what the Founders intended in order to make "good law" from the bench.

Anonymous said...

There is no such thing as God-given rights. God is a fictional character. Grow up people. Do you still believe in Santa too?

Anonymous said...

This bill is a great idea. Courts need to be told what to do, pushed around, threatened, given orders, and kept in line by the other branches.

Courts have been an unchecked branch for too long. This is a great step in getting courts back to being a subordinate branch and putting the legislature back in charge.

Anonymous said...


You fool. If rights don't originate in a source outside man, then there are no such things as rights, only laws. Laws can change from day to day.

I know that's what you Marxists want. You want to destroy any notion that government is not the final authority and that government is subject to authority beyond itself.

Without an external God, morality, decency, etc. to confine government, you Marxists want the ability to take control of government and become unaccountable tyrants, the sole source of law and power.

Veracity said...

Mike Young apparently has not read Article 3 of the Indiana Constitution which provides for separation of powers. Article 3 provides that the courts cannot pass legislation and the legislature cannot interpret statutes. If this bill is passed, it is inviting a showdown with the Indiana Supreme Court.

Paul K. Ogden said...


Legislative bodies have always been free to specify how their statutes and constitutional provisions are to be interpreted. RFRA does exactly that by requiring the courts to return to using the Sherbert compelling interest test in Free Exercise clause cases, a test that was thrown out in Employment Division v. Smith. No separation of powers argument has ever been used to defeat Congress or the state legislatures from doing what they did in adopting RFRAs.