Maryland lawmakers hear arguments for and against religious freedom act

Wednesday, March 11, 1998

A cadre of religious leaders has urged lawmakers in Maryland to enact a religious freedom act similar to the congressional version the Supreme Court invalidated last year.

Cardinal William H. Keeler, archbishop of the Roman Catholic Archdiocese of Baltimore, told a Maryland House of Delegates committee last week the state's constitution does not provide adequate protection for religious persons from an array of state laws.

He urged passage of one of the two religious freedom bills the Assembly is currently considering. The state's senate also is considering a religious freedom bill.

Keeler, along with other religious representatives, including an executive from the state's Episcopal Diocese, pointed to state zoning laws, anti-discrimination laws and other generally applicable laws they claim place great burdens on the practice of religion.

The leaders called on the House committee to approve a religious freedom protection bill requiring the state to justify any laws that happen to infringe on a person's religious practices or beliefs with a compelling state interest. The bill would also force the state to show that the law uses the least restrictive means possible to meet the government interest.

The Assembly's bill mirrors the federal Religious Freedom Restoration Act of 1993 which was successfully attacked by a Texas city last year. The U.S. Supreme Court in Boerne v. Flores ruled that Congress did not have constitutional authority to force state courts to implement the rigorous standard on laws not meant to infringe on religious beliefs and practices. Therefore, the high court's decision let stand a lower federal court's ruling that officials in Boerne did not have to show a compelling interest in its zoning laws that prevented the expansion of a Catholic church.

Maryland is one of several states considering such bills. The various state bills are being encouraged by The Coalition for the Free Exercise of Religion, which drafted and lobbied for the federal act. The Coalition believes the Supreme Court left open the possibility that states could constitutionally pass their own religious freedom protection bills.

Marci Hamilton, attorney for the Texas city that successfully challenged the congressional act and a professor at the Benjamin N. Cardozo School of Law, suggested that such laws, if enacted, would subvert the First Amendment's principle of separation of church and state as well as individual state constitutions, like Maryland's.

“The assembly bill gives religions decisive leverage in every scenario,” Hamilton said. “They send an unmistakable message of endorsement of religion over non-religion.

“If a church wants to avoid a zoning ordinance, the government must tailor its law to the least restrictive means for the church. If a philosophical bookstore or other business wants to do the same, it does not have the same right.”

Keeler, however, told the committee that religious persons are not seeking a “special advantage,” but are simply asking for needed protection of religious practices.

Hamilton said that after her testimony several delegates suggested amendments to the bill, like an exemption for the state's ant-discrimination laws.

“My guess is that they may well enact something by the end of their session but that it will not be the bill they started with,” she said.

The Coalition, however, has been adamantly opposed to any exemptions from their proposed religious freedom bills. California's Assembly passed a religious freedom bill in January that includes an exemption for the state's anti-discrimination laws despite vocal disapproval by the coalition.

Steve McFarland, director of the Christian Legal Society and a member of coalition, in a letter to California lawmakers last month said that the exemption for anti-discrimination laws would prompt opposition from the coalition.

“If you exempt discrimination claims from the protections of [California's Religious Freedom Protection Act] you will strip the bill of its primary benefit for conservative believers,” McFarland said. “It would also dissolve the glue that has held together the disparate ideologies within the RFRA coalition.”