Illinois Legislature passes religious freedom protection act

Wednesday, May 20, 1998

The Illinois Legislature has sent Gov. Jim Edgar a bill that supporters claim will give greater protection to the free exercise of religion.

Modeled after the Religious Freedom Restoration Act of 1993, which the Supreme Court struck down as unconstitutional, the Illinois bill would require state courts to use a stringent two-part legal test for any law that substantially interferes with a citizen's religious practice. The Illinois Senate passed the bill in early spring and the House unanimously approved it yesterday.

Local zoning laws, for example, are often challenged by religious organizations seeking to build or expand churches or to run homeless shelters. Religious organizations often view such laws as a substantial infringement on their First Amendment right to practice religion. If the bill becomes law, a state court would be bound to grant the religious organizations exemptions from zoning laws unless the government could prove it had a “compelling interest” in the law and had used the “least restrictive means” possible to enforce it.

The Religious Freedom Restoration Act of 1993 would have required all courts in every state to use the test, but the Supreme Court invalidated the law, stating Congress did not have the constitutional authority to tell the judiciary what test to use when deciding free exercise of religion cases. However, the court ruled that the individual states might be able to implement such laws constitutionally.

An unusual group of representatives of organized religions and national civil rights groups—the Coalition for the Free Exercise of Religion—urged Congress to pass RFRA and since its demise has called on states to pass similar bills.

In early May, the Florida Legislature also passed and sent to Gov. Lawton Chiles a religious freedom protection bill identical to Illinois' and RFRA. Like Chiles, Edgar has not said whether he will sign the bill. John Webber, a spokesman for Edgar, said that the governor will make a public announcement regarding the bill after he reviews it. Nonetheless, both state legislatures overwhelmingly approved the bills, making potential vetoes of them appear useless.

Steffen Johnson, a Chicago attorney and spokesman of the Illinois Coalition for Free Exercise of Religion, lauded the Legislature's passage of the bill as “great victory” for religious liberty in Illinois.

“Laws that are ostensibly neutral toward religion—that do not discriminate against religion on their face—can have a dramatic impact on religious practice,” Johnson said. “In 1990, the U.S. Supreme Court said that all the First Amendment requires is that government [laws and actions] not specifically target religion. That standard is clearly not enough. Prior the 1990 Smith decision, the government had to justify all interference with religious liberty.”

Not all lawyers or constitutional scholars familiar with the Supreme Court's 1990 decision in Employment Div., v. Smith, believe that it undermined protection of religious liberty.

The Smith decision upheld an Oregon state unemployment law that prevented drug users from obtaining state unemployment compensation. Several American Indians challenged the law after they were fired from their jobs for smoking peyote, which they said was used for worship. They sued the state, claiming the law substantially burdened their right to freely exercise their religion.

Justice Antonin Scalia, writing for the majority in Smith, ruled against the American Indians, noting that the free-exercise clause of the First Amendment has never been interpreted to mean “that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”

Marci Hamilton, a constitutional-law scholar at the Benjamin N. Cardozo School of Law and the attorney who argued against the congressional RFRA before the Supreme Court, said that before Smith the courts used a less rigid test to determine religious-liberty violations.

“The notion that these laws are replacing a standard prior to Smith is a myth being perpetuated by a variety of individuals and groups—and it is certainly not accurate,” Hamilton said. “Before 1990, the court employed a wide variety of tests, depending on the context. I think the groups making the claims against the 1990 decision are doing so in good faith—but without an understanding of the history of the free-exercise clause.”

Hamilton also said the state laws would subvert the separation of church and state.

“They are a clear establishment clause violation,” she said. “The laws are overreaching by religious groups.”