New Mexico House approves religious-liberty protection act

Friday, March 31, 2000

(Editor’s note: Gov. Gary E. Johnson signed the New Mexico Religious Freedom Restoration Act on April 12.)

The New Mexico and Alaska legislatures are nearing approval
of religious-liberty protection acts modeled after a failed federal
version. They also resemble a recently
passed Idaho bill.

Last week, the Idaho Legislature sent to the governor the
Religious Freedom Restoration Act that is intended to make it more difficult
for state officials to enforce a variety of laws, including land-use and health and safety, against those who believe their religious practices forbid

On March 29, the New Mexico House unanimously approved House
Bill 20, called the New Mexico Religious Freedom Restoration Act. Like Idaho’s bill, the New Mexico measure
says it is intended to reverse the effect of the Supreme Court’s 1990 ruling in
Employment Div., v. Smith. The
high court in Smith ruled that generally applicable laws that do not
target religious believers do not necessarily amount to First Amendment
violations. New Mexico’s measure,
however, would require government to show a “compelling interest” in
regulations affecting religious practices and that it use “the least
restrictive means of furthering” that interest. 

The bill would also allow individuals to recover damages
from the government for violating the act. 

The act, sponsored by Republican state Rep. Joe Thompson,
must now be considered in the Senate. Gov. Gary E. Johnson, who vetoed a similar measure last year, told The
Santa Fe New Mexican
that he would, with hesitations, sign this bill. “I still maintain this will lead to
less religious freedom than not,” the Republican governor said.

In 1997, the U.S. Supreme Court invalidated Congress’ 1993
version of a religious- freedom restoration act, citing separation of powers
problems. Writing for the majority in Boerne
v. Flores
, Justice Anthony Kennedy said it was not within Congress’
authority to rewrite free-exercise clause jurisprudence, which included the
high court’s 1990 Smith decision. The high court, however, did say that the states might be able to get by
constitutionally with passing their own religious-liberty acts.

Late last year the national headquarters for the American
Civil Liberties Union announced that it could no longer support bills modeled
after the federal version. The national
ACLU has maintained that the acts will ultimately be used by religious
believers to ignore anti-discrimination laws in the name of religious
freedom. State affiliates of the ACLU
are, however, free to support such legislation.

Denise Clegg, acting executive director of the ACLU of New
Mexico, said her office had lobbied for the bill and would urge the governor to
sign it. However, she added that her
group would prefer to see the bill with an exemption for state
anti-discrimination laws.

“It is possible the bill could be used to undermine
other civil liberties, and we would fight those uses,” Clegg said. “These RFRA-type acts do reinforce the
religious freedoms in the Constitution that the courts have at times weakened.”

The Alaska House Judiciary Committee is also considering a
religious-liberty protection act. House
Bill 387 states that it is intended to require “governmental entities,
including municipalities and school districts, to meet certain requirements
before placing a substantial burden on a person’s free exercise of religion.”

The Alaska Religious Freedom Protection Act, moreover,
states that “in 1990, the United States Supreme Court retreated from over
200 years of respect for the right to free exercise of religion in Employment
Division v. Smith, an opinion written by Justice Scalia, by holding that the
government no longer had to make reasonable exceptions to general laws in order
to accommodate the religious beliefs of its citizens.”

Actually, Justice Antonin Scalia, in Smith, said that
the decision did not overturn or retreat from the court’s established judicial
principles regarding the religious-liberty clauses of the First Amendment. Instead, Scalia wrote that “the record
of more than a century of our free exercise jurisprudence contradicts that
proposition.” Citing a 1940 ruling
written by Justice Felix Frankfurter, Scaila wrote that the “mere
possession of religious convictions which contradict the relevant concerns of a
political society does not relieve the citizen from the discharge of political

Scalia, moreover, wrote in Smith: “Subsequent
decisions have consistently held that the right of free exercise does not
relieve an individual of the obligation to comply with a ‘valid and neutral law
of general applicability on the ground that the law proscribes (or prescribes)
conduct that his religion prescribes (or proscribes).’ “