State legislatures consider religious freedom bills

Monday, February 16, 1998

Lawmakers in Georgia and Virginia have joined an expanding list of states working to enact laws similar to the federal Religious Freedom Restoration Act that the Supreme Court invalidated last year.

The efforts by Virginia lawmakers to enact a law—which they argue will strengthen religious freedoms—hit a snag recently when House members sent the bill back to a committee for further study.

House Bill No. 1, introduced last month and voted out of the House General Laws Committee the second week of February, provides that a “government entity shall not substantially burden a person’s free exercise of religion even if the burden results from a rule of general applicability.” After debating the bill Feb. 14, the House voted to send the bill back to the committee for further study.

Del. Donald A. McEachin, D-Richmond, introduced the bill, which contains language similar to the failed federal version, after a church feeding program ran afoul of a Richmond zoning ordinance.

McEachin’s proposal, however, does include some language that was not in the federal version. Specifically, language was added to the bill last week exempting state prisoners from the law.

One of the bill’s sponsors, Del. Kenneth R. Plum, D-Reston, told the Richmond Times-Dispatch the added language undermines the intent to strengthen religious liberty and that if the exemption remains in the bill he would “pause to reconsider” his support.

The committee has until Feb. 17 to finish work on the bill, the deadline for the House to act on legislation introduced by members.

Ellis West, a political science professor at the University of Richmond, has criticized lawmakers’ efforts to create a religious liberty protection act.

“In short, House Bill No. 1 would, with few exceptions, require special treatment be given to all religious persons and groups that seek it,” West claimed in a column that recently appeared in the Times-Dispatch. “It would give persons a general right not to obey any law that ‘substantially’ burdens their ‘exercise of religion’—even if the law has an entirely secular purpose, is perfectly valid, and has to be obeyed by everyone else.”

Lawmakers in Georgia’s House of Representatives have also introduced legislation that mandates “governments should not substantially burden religious exercise without a compelling justification.”

Unlike Virginia’s bill, there is no exemption for state prisoners.

The bill was introduced in late January and is now being considered by the House Judiciary Committee. The committee has yet to set a date for consideration of the bill.

Congress enacted the Religious Freedom Restoration Act in 1993 primarily to counter a 1990 Supreme Court decision. The high court held in Employment Div., v. Smith that government agencies do not have to show a compelling interest for laws, applicable to everyone, that accidentally interfere with religious liberty.

Critics of Smith formed the Coalition for the Free Exercise of Religion, which drafted the language for the federal RFRA and persuaded Congress to implement the law.

Last year the Supreme Court invalidated the religious freedom act ruling that Congress did not have the authority to overrule a court’s interpretation of the Constitution. The high court, however, left open the possibility that the individual states could create such laws.

Marci Hamilton, law professor at the Benjamin N. Cardozo School of Law and a religious liberty scholar, says laws such as the Religious Freedom Restoration Act provide unneeded and possibly unconstitutional protection for religious beliefs.

“The Religious Freedom Restoration Act elevated all religions, whether politically powerful or not, above all other social concerns and thereby placed in jeopardy the vast myriad of community and societal concerns, from environmental laws to zoning laws and matrimonial and statutory rape laws,” Hamilton told the First Amendment Center.

“The Congress engaged in a hostile takeover of the free exercise clause at the behest of the and for the purpose of serving organized religion.”

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