State legislatures continue push for more religious protection of citizens

Wednesday, January 20, 1999

Since the U.S. Supreme Court invalidated the Religious Freedom Restoration Act of 1993 more than a year ago, state legislatures, urged on by a large national coalition of religious and civil rights groups, have worked to enact their own laws granting extra government protection for religious practices.

Last year three states successfully provided a strict legal standard for their courts to use when deciding when a citizen’s free exercise of religion is violated by a state law or action intended to apply to everyone.

Both the Illinois and Florida legislatures passed religious-freedom protection acts. Those acts mandate that the state or local government show a “compelling interest” in any law or action that substantially infringes on a person’s free exercise of religion. Moreover, the government must show that its action or law is applied in the “least-restrictive means” possible. If it cannot meet the standards, then some religious people may be exempt. Several U.S. Supreme Court justices have described the “compelling interest” test as the most rigid of constitutional law standards, and therefore the toughest to meet.

Alabama voters amended their state’s constitution to mandate that their courts use the test. The Alabama amendment does not even require a substantial burden on free exercise before the test is triggered. Instead any incidental burden from any law could prompt a state judge to apply the strict legal standard.

The Coalition for the Free Exercise of Religion, the national coalition urging states to pass religious-protection laws, also helped draft a new federal version that is currently mired in U.S. House and Senate judicial committees. The new version, called the Religious Liberty Protection Act, is much narrower than the 1993 RFRA or those considered by state legislatures.

The coalition, however, argues that the constitutional guarantee of free exercise of religion has been weakened by the Supreme Court’s 1990 holding in Employment Div., v. Smith, and that the religious-protection laws are therefore needed on both the federal and state level. In Smith, the high court ruled that not all government actions and laws that happen to infringe on a person’s religious liberty would automatically amount to a constitutional violation. Therefore, the coalition argues, the strict legal standard of RFRA is needed to help strengthen religious rights.

Marci Hamilton, a constitutional law scholar and professor at Yeshiva University in New York, said that while the coalition was successful in three states, it faced setbacks in three others.

“There were three states that have decided to use the rejected RFRA standard, but RFRA proposals in Maryland, California and Arizona were not advanced,” Hamilton told

California’s battle for a religious-protection law highlighted what portends continuing problems for the acts.

First, California’s Legislature became bogged down in trying to determine whether its religious-protection law should trump the state’s numerous civil rights protections. The Legislature eventually passed an act with ambiguous language regarding the act’s relation to the state’s interest in quelling discrimination of all kinds.

After the religious-protection act was passed, however, the state corrections department lobbied then-Gov. Pete Wilson to veto it, arguing it granted too much protection to state inmates. Wilson vetoed the act after the Legislature had adjourned, effectively killing it.

California state Sen. Joe Baca is trying to build support for another attempt at enacting a state religious-protection law.

Last week the Texas Legislature introduced a religious-protection bill that has already been endorsed by the state’s popular Republican governor, George W. Bush.

In endorsing the bill, Bush said that court decisions “have made it easier for government to encroach on people’s religious rights, one small action at a time,” and such actions were “unacceptable in Texas.”

Hamilton, said that Bush’s and the coalition’s arguments that religious-protection laws would restore a once-used legal standard were specious.

“I’m deeply concerned about the misinformation the coalition and its supporters have aired regarding the legal standard for free-exercise jurisprudence,” said Hamilton, who also successfully argued before the high court that RFRA of 1993 was unconstitutional. “The notion that the standard in RFRA was ever in place and used with consistency is simply wrong.”

The arguments over whether the standard outlined in state RFRAs was actually ever used by the judiciary and how it could be used in the future also have caused slight friction with the coalition itself.

Christopher Anders, legislative counsel for the national American Civil Liberties Union, told that its state affiliates were free to decide whether they should join the movement for state-RFRAs or not. Moreover, he said the national ACLU was concerned that some state-RFRAs could be used to trump other civil rights laws.

“At the federal level, we are working on efforts within the coalition to ensure that whatever laws are passed to protect religious liberties will not be used to defeat other civil rights claims,” he said.

Anders said he was not sure whether other members of the coalition were receptive to the ACLU’s concerns. He did say that the national ACLU remains committed to passage of a federal law that would “restore some of elements of a standard of increased protection for religious liberty.”

The Human Rights Campaign, a Washington, D.C.-based group that advocates equal rights for gays, said it would begin to urge state lawmakers attempting to pass religious-protection laws to consider adding language to ensure that other state civil rights laws would not be adversely affected by the laws. According to The Washington Blade, a weekly gay and lesbian newspaper in Washington, D.C., other gay-rights groups have said the religious-protection bills could undermine local civil rights laws that ban discrimination based on a person’s sexual orientation.

Tom McCoy, a constitutional law scholar and Vanderbilt University professor, told that he remained worried that the coalition’s push for religious-protection laws is terribly flawed.

“I don’t think this problem lends itself to a legislative solution,” McCoy said. “These state RFRAs use a ‘compelling interest’ standard that the coalition believes was struck down by the Supreme Court in (Employment Div., v. Smith) as the test that any state law would have to pass if that state law accidentally interfered with religious practice. Free-exercise jurisprudence prior to the Smith decision, however, did not embody that ‘compelling interest’ test. The test used was more a balancing test based on the circumstances before the court.”

McCoy said that the coalition may not be serving the First Amendment well by advocating a statutory fix to a constitutional problem that should be addressed by the Supreme Court. He also noted that the laws could raise separation of church and state problems by giving preferential treatment to religion.