To understand the intent of Indiana’s Religious Freedom Restoration Act, ("RFRA") it is useful to view it side-by-side with earlier federal and Illinois Religious Freedom Restoration Acts.
The RFRA was passed by Congress in 1993 to protect the free exercise of religion in America. Here are the Congressional findings as to the need for the law:
1. The Famers 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, (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and
5. 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.
Congress then stated its purposes in passing the act:
1. To restore the compelling interest test as set forth in Sherbert and Yoder, 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.
Congress, then provided
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) of this section.
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.
c. 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.
In 1998, Illinois passed the Illinois Religious Freedom Restoration Act. The Illinois Legislature stated its purposes:
1. To restore the compelling interest test as set forth in Yoder, and Sherbert, and to guarantee that a test of compelling governmental interest will be imposed on all State and local ... laws ... and governmental actions ... in which the free exercise of religion is substantially burdened.
2. To provide a claim or defense to persons whose exercise of religion is substantially burdened by government.
The Illinois Legislature virtually copied the Federal Act.
“Free exercise of religion protected. Government may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability, unless it demonstrates that application of the burden to the person (i) is in furtherance of a compelling governmental interest and (ii) is the least restrictive means of furthering that compelling governmental interest.”
Then, to guarantee compliance with the act, the Legislature again copied the federal act, but added a provision for attorney’s fees to allow a person whose “free exercise” was trampled by the state to hire an attorney to vindicate his rights.
So what did the original Indiana Act say that has caused all the furor? How is the Indiana Act different from the federal act and/or the Illinois act?
Here’s what the Indiana Law provided:
“Sec. 8. a. Except as provided in subsection (b), a governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability. (b) A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity 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.
“Sec. 9. A person whose exercise of religion has been substantially burdened ... by a violation of this chapter may assert the violation ... as a claim or defense in a judicial or administrative proceeding.”
A following section allowed the victim of an undue state burden to sue for declaratory relief, injunction, compensatory damages and/or attorneys fees.
The federal and Illinois statues were passed to protect the citizen and other persons in the “free exercise of their religion” as guaranteed by the First Amendment against the enforcement of “neutral laws” that “substantially burden” the “free exercise of religion” unless there was a “compelling state interest” involved, and unless the “least restrictive means” of furthering that compelling governmental interest were employed.
When the federal and Illinois laws were passed, there was no uproar. Nobody for a minute thought that the purpose of the laws was to allow people to discriminate against anybody.
The purpose of the Indiana law was the same. But times have changed. Now a law passed for the express purpose of keeping government from unnecessarily burdening the “free exercise of religion” is viewed as allowing discrimination against certain individuals rather than as protecting religious freedom.
In my next op-ed I will explore the worrisome danger of “religious freedom” degenerating into “invidious discrimination.”
Posted: Saturday, April 18, 2015 11:00 pm, QCOnline.com
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