Reflections: Do states need religious freedom legislation?



By Executive Director J. Brent Walker

Click here to read Walker’s April 1 statement on Indiana and Arkansas RFRAs.

Recently, state legislatures across the country have been making headlines for considering variously-named religious freedom bills. The proposed legislation currently attracting the most attention — particularly in Baptist life — is the so-called “Preventing Government Overreach on Religious Expression Act” in Georgia. Before judging whether these state religious freedom bills are meritorious or even necessary, it is important to understand a little history.

In 1997, the U.S. Supreme Court struck down the 1993 federal Religious Freedom Restoration Act (RFRA) as applied to the states (City of Boerne v. Flores). That is, while RFRA continued to provide increased religious liberty protection against action by the federal government, the Court decided that Congress did not have the power to require the states to follow suit. In the aftermath of that decision, many states passed their own religious freedom restoration acts or amended their constitutions to require greater protection for the exercise of religion.

So, attempts to further ensure religious liberty at the state level is not novel. What is new, however, is that the political energy fueling the recently proposed laws — in, for example, Arizona, Kansas, Mississippi and Oklahoma — seems to be an attempt to protect against various involvements with LGBT rights and same-sex marriage.

The Baptist Joint Committee, having led the coalition urging Congress to pass RFRA in 1993, believed then — and does today — that the federal RFRA embodies a delicately balanced formula by which courts can adjudicate religious liberty claims while seeking to protect important interests of society generally or the well-being of third parties adversely affected by the requested accommodation. As a general principle, the BJC has encouraged — and certainly has not discouraged — state RFRAs that parallel the careful language of federal RFRA.

The problem comes when proponents of state legislation want to change the language of their bills to promote their own policy agendas or to disadvantage that of their political opponents.

For example, federal RFRA requires a religious claimant to show that government has imposed a “substantial burden” on the exercise of religion. Some proposed state laws omit “substantial,” tilting the delicate balance in favor of the claimant. Other proposals would require the state to demonstrate a compelling interest to justify the burden by bringing forth “clear and convincing evidence” — a much stiffer burden than the usual “preponderance of evidence” in most civil cases, making it more difficult for the state to override religious claims in favor of other interests.

Finally, although the federal RFRA contains a provision saying that the free exercise protection does not disturb Establishment Clause jurisprudence, some state proposals neglect to include that important counterpart to Free Exercise Clause accommodation. Other proposed laws tend to buttress the government’s side by excluding disfavored categories of citizens — prisoners for example — from the laws’ benefits. These carve-outs are wrong too.

In our view, it is perfectly permissible for states to pass religious freedom laws if they mirror the delicate balance achieved by the federal act; we say “no” to attempts on the part of some to tilt that balance in their favor.

The formula embodied in the federal RFRA – denying substantial burdens on the exercise of religion unless the government pursues a compelling state interest in a narrowly tailored way — provides a mechanism for negotiating deep-seeded conflict and heartfelt disagreement. The religious claimants will sometimes win — certainly where the rights of third parties are not affected or where the government does not narrowly tailor its regulation pursuant to a compelling interest. But sometimes claimants will lose when the way they want to exercise their religion interferes with the well-being of society or third parties. The courts are uniquely suited to balance these equities — case by case— providing each side a fair hearing but guaranteeing neither victory in every case.

This is a proven mechanism for allowing our nation to negotiate religious liberty claims while respecting the rights and well-being of fellow citizens and society generally without legislatures playing favorites or tilting the playing field one way or another.

Doffing my lawyer’s hat and donning my pastor’s hat, I want to preach a little and suggest another way short of litigation.

To our LGBT friends: with the astonishingly rapid-dawning first opportunity to marry in our country’s 225 year history, try extending some grace to others who have religiously informed objections to same-sex marriage; and if the baker or florist does not want to provide you a cake or flowers, move down the street and give your business to ones who will. To our conservative Christian friends: with religious liberty protected in this country like no other place in the world, try loving your LGBT neighbors (not even talking about your enemies) unconditionally, and understand that providing them goods and services in the marketplace is an act of hospitality, but it does not indicate approval of their nuptial decisions or their sexual orientation. It seems to me this is a better way for good citizens and good Christians to resolve conflict in the public square.

Click here to take a look at legislation in some states on the BJC blog’s state RFRA tracker.

From the February 2015 Report from the Capital. Click here to read the next article.