Many of the people who have come to this country have done so in order to obtain religious freedom.

In fact, the Constitution explicitly protects religious freedom in the First Amendment, which states in relevant part that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …” The Wisconsin Constitution also protects the religious freedom of its citizens in Article 1, Section 18. Recently, Rep. David Craig, R-Town of Vernon and Sen. Joe Leibham, R-Sheboygan, have introduced the Religious Freedom Amendment, which would amend the Wisconsin Constitution if approved in two consecutive legislative sessions and then approved by voters in a statewide referendum. Although proponents of the Religious Freedom Amendment argue this amendment would only codify existing Wisconsin precedent, proponents of the amendment could use it in court to substantially change Wisconsin’s current Constitution.

It is true that the U.S. Constitution protects people’s free exercise of religion from governmental interference. But it is equally true that the Constitution prohibits a person’s religious expression from undermining the democratic state. As the Supreme Court noted in Cantwell v. Connecticut, “[T]he [First] Amendment embraces two concepts — freedom to believe and freedom to act. The first is absolute, but, in the nature of things, the second cannot be.” The Supreme Court has struggled for years with ascertaining the precise point when a government regulation impermissibly and unconstitutionally interferes with a person’s free exercise of religion.

During the 1970s, the Supreme Court applied the Sherbert-Yoder test; In order for a government action that substantially burdened a person’s religious exercise to be constitutional, it had to (1) serve a compelling governmental interest and (2) be narrowly tailored for that purpose. In 1990, the Supreme Court backed away from the Sherbert-Yoder test in Employment Division v. Smith. There the Supreme Court emphasized that “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”



As a result of the Smith decision, Congress passed a statute called the Religious Freedom Restoration Act. The RFRA tried to codify the Sherbert-Yoder test and apply it to the actions of all government bodies. Although the Supreme Court eventually decided that this statute did not apply to individual states (because the law exceeded Congress’ enforcement powers under the 14th Amendment), many states enacted their own versions of the RFRA. In addition to the many states that passed their own RFRAs, state supreme courts also interpreted their state constitutions in a manner that essentially adopted the Sherbert-Yoder test, such as Wisconsin.

Rep. Craig and Sen. Leibham’s proposed Religious Freedom Amendment is drafted with the intent of codifying something similar to the RFRA, but with the caveat that this isn’t a statute, but instead a constitutional amendment — meaning its effects can’t easily be undone. Not only is the RFA a proposed constitutional amendment (meaning it will be essentially permanent) it is also written in much broader terms than the RFRA. The RFRA protects a person’s free exercise of religion from governmental action by requiring that state action pass the Sherbert-Yoder test when the government’s action has a “substantial burden” on that person’s religion. In contrast, the RFA only requires that a government action have a “burden” on a person’s religious exercise for that action to be subject to strict scrutiny.

The indeterminacy of the RFA’s possible effects is troubling. As the Baptist Joint Committee said in regard to a provision that is similar to Wisconsin’s RFA, which was proposed in Kentucky: “Without the substantial burden requirement, nearly any state law or regulation could be subject to exemption challenges, effectively making religious liberty an automatic trump card. Under RFRA’s more measured approach, courts seek to balance personal religious liberty interests with other important government interests.”



The RFA would create uncertainty in Wisconsin’s relatively settled case law on religious liberty and, in theory, could permit state employees to refuse to dispense birth control or grant marriage licenses to people if doing so would violate the employees’ religious beliefs. This would allow a person’s religious conviction to supersede the legitimate goals of secular government. Currently, Wisconsin’s legal standards for adjudicating religious freedom claims under the Wisconsin Constitution are working. There is no need to enact a constitutional provision that could disrupt this delicate balance and allow religious belief to preempt the legitimate goals of democratic government.

Aaron Loudenslager ([email protected]) is a second year law student.