Idaho’s governor considers Religious Liberty Protection Act

Tuesday, March 28, 2000

(Editor’s note: As expected, Gov. Dirk Kempthorne signed the Idaho Religious Freedom Restoration Act into law on March 31.)

Idaho’s Legislature is attempting to join a handful of states that have enacted laws they describe as immunizing religious practices and beliefs from government laws.

State lawmakers last week sent to Republican Gov. Dirk Kempthorne Senate Bill 1394, which “is intended to assure that burdensome state and local laws will not preclude the free exercise of religion.”

Although many constitutional law scholars and religious leaders argue that the religious-liberty clauses of the First Amendment already protect religious practices from unreasonable government intrusion, a diminished coalition of religious of conservatives has persuaded a number of state legislatures, including Texas’ and Florida’s, to approve similar legislation.

The Coalition for the Free Exercise of Religion was formed in the early 1990s to lobby Congress to pass the Religious Freedom Restoration Act. The coalition, which at its inception included an array of liberal and conservative groups, dwindled last year when the American Civil Liberties Union and other groups backed out of it, citing concerns that such legislation would actually allow religious groups to ignore state and civil rights protections in the name of religious liberty.

Although the coalition succeeded in pushing Congress and the president to enact the Religious Freedom Restoration Act in 1993, the U.S. Supreme Court invalidated it as unconstitutional in 1997. RFRA had stated that government laws and actions could not infringe on religious practices unless there was a “compelling interest” to do so and the “least restrictive” means were used. Since the high court’s ruling in Boerne v. Flores, the coalition has tried to encourage state legislatures to pass their own RFRAs.

The Idaho bill, which was introduced by Republican state Sen. Grant Ispen, would “re-establish a test” that courts must use when deciding if a person’s religious belief is infringed upon by a government action. “The test, known as the ‘compelling interest test,’ requires the government to prove with evidence that its regulation is essential to achieve a compelling governmental interest and it is the least restrictive means of achieving the government’s compelling interest,” the bill states.

The proponents of the federal RFRA also argued that that law would “restore” a constitutional test that federal courts had used before a 1990 U.S. Supreme Court decision in Employment Div., v. Smith. The high court, in Boerne, however, said that the “compelling interest/ least restrictive” means test had only been used by federal courts in employment-compensation cases and not to exempt religious observers from health and safety regulations.

In the 1990 Smith decision, Justice Antonin Scalia wrote that laws that apply to all and only incidentally infringe on religious practices do not necessarily violate the Constitution. “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate,” Scalia noted in Smith.

Although the Idaho bill passed both chambers with relative ease, a group of state religious leaders, the state chapter of the American Civil Liberties Union and some Democratic lawmakers voiced concerns about the bill’s potentially adverse effect upon state laws protecting children from neglect and laws barring discrimination against minorities by religious zealots.

The Rev. Jon Brown told The Idaho Statesman that he and other state religious leaders would this week urge the governor to veto the bill. Brown, a United Methodist pastor, said the bill “has turned into a tool for the extreme religious right to discriminate against other religions, people whose status is protected and, the biggest concern of all, children.”

Democratic state Rep. Shirley Ringo said she argued against the bill in the House. Ringo expressed concern because the bill contains no exemptions for civil rights laws or protections for child welfare.

In arguing against the act, Ringo cited a 1995 9th U.S. Circuit Court of Appeals ruling that barred a California school district from enforcing a policy against weapons on school grounds against a group of Sikh children. A central tenet of the group’s faith requires adherents to wear at all times symbols of their faith, including a kirpan (a ceremonial knife, which a U.S. District Court has described as dangerous). In Cheema v. Thompson, the 9th Circuit applied RFRA of 1993 and said the school district would have to permit the Sikh children to wear their knives to school, as long as they were dulled and “sewn tightly” to their sheaths.

Judge Charles Wiggins, the sole dissenter in Cheema, said as a result of “the majority’s ruling, the school district must allow 7, 8 and 10 year-old children to carry 7-inch knives to school, as long as the knives are worn under the children’s clothing and are sewn to their sheaths, even though: the district court originally concluded that the knives in question are dangerous; the children’s own expert testified that sewing the knives to the sheaths does not render them unremovable; the children’s expert testified that the children’s faith allows, or even mandates, that they use their knives in propagation of ‘God’s justice.’ “

The Idaho affiliate of the American Civil Liberties Union is urging the governor to veto it.

“We are concerned that if the bill passes it will grant an exemption from civil rights laws for individuals’ religious beliefs,” said Jack Van Valkenburgh, executive director of the Idaho ACLU. “While we adamantly support protection of religious liberty, we don’t think that bigotry that impacts other people’s lives in a direct way should be permitted.”

Ispen called the ACLU’s and Brown’s criticisms of the bill ‘hogwash.’

‘Fears have been expressed that this bill will give protection to abusers and will lead to trivial legal actions and discrimination,’ Ispen said. ‘These fears are unfounded. During the time the federal RFRA was in effect from November 23, 1993 to July 1, 1997, Idaho had a total of 2,146 civil cases. Only one was reported to be a RFRA case from the general public. None of the prisoner cases were based on RFRA claims. Abuse laws are well provided for in state law. Discrimination laws are well-defined in state and federal statutes. A government should have no difficulty in proving a compelling interest in such cases.’

On the federal level, the Coalition for the Free Exercise of Religion has not ceased lobbying Congress to enact a more limited version of its failed 1993 RFRA.

Last July, the House passed, primarily with Republican backing, the Religious Liberty Protection Act, which would bar any government program receiving federal dollars from substantially burdening “a person’s religious exercise.” Sen. Orrin Hatch, a longtime supporter of this type of legislation, introduced a similar version in the Senate this month. Hatch’s bill has not been marked up in a committee; it has instead been placed on the Senate calendar and could be voted on any day.

Like the House’s version, Hatch’s bill targets zoning or land-use regulations. Senate Bill 2081 states that in implementing land-use laws, “government may not impose a substantial burden on the religious exercise of a religious assembly or institution, or of a person in the person’s home, unless the government demonstrates that application of the burden” furthers “a compelling governmental interest and is narrowly tailored to further” that interest.

The bill also excludes government zoning laws from unreasonably excluding from or limiting “assemblies or institutions principally devoted to religious exercise.”

Marci Hamilton, a constitutional law scholar and professor at Yeshiva University in New York, said supporters of Hatch’s RLPA have offered “no proof that local governments have violated the (free-exercise) clause with land use or zoning laws.”

“The free-exercise clause certainly does not require an exemption for churches from zoning laws,” said Hamilton, who argued against the 1993 RFRA before the U.S. Supreme Court. “If the laws are being applied discriminatorily or if they are enacted to single out a particular religion, there would be a violation. But neutral, generally applied zoning laws are constitutional.”

Nicholas Miller, an attorney and executive director of the Maryland based Council on Religious Freedom, defended Hatch’s bill as necessary to protect religious observers from substantial government intrusion.

“It (RLPA) is not an expansion of religious rights; it is a restoration, however,” Miller said. “The test we are seeking to have restored worked for 50 years prior to 1990 when the Supreme Court contracted and diminished religious freedom and in a limited sense said the First Amendment does not protect religious exercise against neutral laws. But that view of the First Amendment is completely at odds with 200 years of constitutional tradition that Congress is trying to restore.”