Florida Legislature sends governor religious freedom act

Wednesday, May 6, 1998

The Florida Senate has passed a religious freedom bill similar to the federal version that the U.S. Supreme Court invalidated as unconstitutional.

The Senate unanimously passed the Religious Freedom Restoration Act late last week. A House version was approved in April. The bill now must be considered by Gov. Lawton Chiles. If he approves the act, Florida will be the first state since the demise of the federal version to implement such a law.

The law would require state courts to use a stringent legal test to determine when a citizen's free exercise of religion is violated by any state law.

For example, if a member of a religious sect that uses marijuana for worship is convicted under a state law making the drug illegal, that person could bring a suit claiming her religious liberty rights had been subverted. A state court — because of the law — would have to grant the person an exemption from the drug law unless the government could prove it had a “compelling interest” in the law and had used the “least restrictive means” possible to enforce it.

In 1993, at the behest of the Coalition for the Free Exercise of Religion, a national group of civil rights advocates and representatives of organized religions, Congress passed and the president signed the Religious Freedom Restoration Act, or RFRA, codifying the compelling-interest and least-restrictive means tests.

Last year the U.S. Supreme Court invalidated the law, ruling it was not within Congress' power to tell federal or state courts how to determine when a person's fundamental rights, as outlined in the Constitution, are violated. The court did, however, note that the individual states might be able constitutionally to implement such laws.

Rick Nelson, an attorney with the Liberty Counsel, an Orlando-based conservative religious institute that is part of the coalition, said the new act would grant greater protection for religious persons in Florida.

“As you may recall, the Supreme Court greatly minimized the protection for the free exercise of religion in 1990 and that is why Congress enacted the Religious Freedom Restoration Act of 1993,” Nelson said. “The Supreme Court struck down the act as unconstitutional, specifically stating Congress exceeded its authority.

“The court, however, did not oppose the creation of RFRA-like protection by individual states. Now that Florida has passed a RFRA to restore the compelling government interest test when it substantially burdens religion, those citizens in Florida who were in fear of government intrusion on their belief or practice are protected,” Nelson said.

First, however, Chiles must decide whether to sign the bill. Given its large margin of victory in both houses — the Florida House passed the act 114-5 — it appears a potential veto could be overridden.

Nelson said officials in Chiles' office have not given him any indication as to whether he will sign or veto the act.

“In this state it is very rare for such a broad cross-section-representing diverse philosophical and theological views-to gather in support of one bill,” Nelson said. “This bill has such support and Governor Chiles should recognize that so many citizens want this protection. It is our opinion that he has a constitutional duty to recognize the citizens' desire and to support the bill.”

When Congress passed RFRA, Florida Attorney General Bob Butterworth withheld support of the law, saying it would give the state's prisoners too much latitude to file lawsuits charging the penal system with violations of religious liberty.

Marty Moore, deputy general counsel to Butterworth, said that the attorney general's office supported efforts by the state's Department of Corrections to exempt prisoners from the state's RFRA. The national pro-RFRA coalition, however, has pressured state lawmakers to enact laws identical to the federal RFRA, which did not exempt prisoners. That pressure succeeded in the Florida Legislature, where lawmakers defeated attempts to add the exemption to the bill.

“Our office handles litigation for the Department of Corrections and our concern is that state inmates will use religion as a pretext for obtaining privileges or benefits that they might not otherwise be able to obtain,” Moore said. “What we have seen from the federal RFRA is a rise in requests by organized hate groups and groups with a propensity for violence to obtain religious exemptions. The Aryan Nations folks believe they should be put in segregated institutions.

“The 'least restrictive means' part of the test puts the burden on the state to come to court and deny requests by members of the Aryan Nations, based on religious beliefs, to be in a white-only prison. The test makes it more difficult to defend against prisoners' claims and drives up the cost of litigation,” Moore said.

Nonetheless, he said, if the governor signs or allows the act to become law, it will be the duty of the attorney general's office to defend prison regulations in accordance with the state RFRA.

Opponents of state RFRAs question the assertions by Nelson and the coalition that RFRA and state versions like Florida's merely restore protection to religious liberty.

Marci Hamilton, a constitutional law scholar and the attorney who argued against the congressional RFRA before the Supreme Court, said the Florida bill mandates a test that is unnecessary and more than likely unconstitutional.

“These bills are nothing more than power grabs by organized religions and interest groups,” she said. “I feel certain that when people find out what the legislature has done, they will work to rectify the situation.”

Hamilton also said Florida's RFRA violates the separation of church and state.

“Of course it violates the establishment clause,” she said. “It is a handout to religious persons that they have never been given before and amounts to a preference for religion that undermines … the separation of church and state.”