New Jersey, Maryland consider religious freedom bills

Tuesday, March 3, 1998

Lawmakers in New Jersey and Maryland have joined a growing cadre of states contemplating religious freedom acts similar to a federal version, which was found unconstitutional.

The New Jersey Senate Judiciary Committee recently debated the merits of a proposed 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 state would also have to show that the law uses the least restrictive means possible to meet the government interest.

The law mirrors the federal Religious Freedom Restoration Act of 1993 which was successfully attacked by a Texas city last year. The Supreme Court in Boerne v. Flores found the Texas city did not have to show a compelling interest in upholding a zoning ordinance that prevented the expansion of a Catholic church.

The court found Congress did not have the constitutional authority to enforce the religious freedom act upon individual states.

In striking down the law, however, the court left open the possibility that individual states might be able to create constitutionally permissible laws giving citizens expanded religious-liberty rights.

The Coalition for the Free Exercise of Religion, which drafted and lobbied for the federal act, has encouraged state lawmakers–including those in New Jersey and Maryland–to enact such laws.

Representatives of the American Jewish Congress, a member of the coalition, urged the New Jersey Judiciary Committee to approve the religious freedom act arguing that the First Amendment no longer provides adequate protection to religious persons from an array of state laws, including zoning, housing and discrimination regulations.

Christopher Eisgruber, a New York University law professor, however, told the committee that the bill would set a high standard for government to meet when trying to enforce many of state’s laws.

The chairman of the committee said the bill will be held for work on possible amendments that would exempt certain state laws from the act.

Lawmakers in Maryland’s House and Senate will soon consider religious freedom acts. The bills are endorsed by the Coalition for the Free Exercise of Religion and require the state to show a compelling interest in laws that potentially could infringe on religious practice.

Marci Hamilton, attorney for the Texas city that challenged the congressional act and a professor at the Benjamin N. Cardozo School of Law, has sent letters to Maryland lawmakers and will testify against the bills before the Legislature.

“The bills propose a standard for religious conduct that is more favorable to religion and more detrimental to governmental interests than the standard the courts of this state have employed,” wrote Hamilton.

“Like the now invalidated federal [Religious Freedom Restoration Act
], these bills are breathtaking in scope. They apply to every conceivable law, regulation, and official action by every government entity in Maryland, past, present, and future.”

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