State legislatures are going berserk.
Arizona’s legislature recently passed H.B. 1062, the
controversial amendments to the state’s Religious Freedom Restoration Act. The bill would have allowed businesses to
invoke religious freedom claims to refuse to serve gays and lesbians.
And the Virginia General Assembly just passed S.B. 236 giving
students the right to pray or engage in religious activities or religious
expression before, during, and after the school day – essentially to turn public
schools into Christian schools.
The good news is that Arizona Gov. Jan Brewer vetoed H.B.
1062 yesterday and Gov. Terry McAuliffe’s office has said that the governor will
veto S.B. 236.
Admittedly, I have over simplified both bills. And some would argue grossly exaggerated them. As an advocate for religious freedom and a
student of constitutional law for over four decades, I deny the latter.
What proponents of the so-called religious freedom bills
ignore is the harm to others. In Utopia,
we would be able to do whatever we wanted and no one would be harmed. But that is not reality.
Religious freedom is not absolute.
We are all generally aware that the Supreme Court has held
that public schools cannot lead students in school prayer or reading of Bible
verses. Consider the following three
examples to help understand why the right is not absolute.
Tennessee outlaws possession
of poisonous snakes. Unlike the previous
eight times Rev. Jamie Coots, pastor of Middlesboro, Kentucky’s Full Gospel
Tabernacle in Jesus Name had been bitten, on February 15th Coots died of a
rattlesnake snake bite. No need to charge Coots with possession of a
poisonous snake.
Some parents believe that through prayer God cures illness. Based on their sincerely held religious
beliefs, they refuse medical treatment for themselves and their children. Their child gets sick. The child’s illness is commonly cured by antibiotics
or a blood transfusion. The child dies
for want of medical care. The parents
could be charged with negligent homicide.
A drug on the (regulated by the Controlled Substance Act) is
used in group’s religious rituals. Members believe that using drugs enables them to commune with nature or
experience their inner self. To prosecutors,
the church was founded to enable its members to get a weekly (if not daily)
high. The members could be charged with
possession of a controlled substance.
In 1990, the Supreme Court held in Employment Division, Department
of Human Resources of Oregon vs. Smith, 494 U.S. 872, that Oregon
could deny unemployment benefits to a person fired for violating the state’s
prohibition on the use of peyote, even though the use of the drug was part of a
religious ritual. Under Supreme Court
precedent, states have the power
to accommodate otherwise illegal acts done in pursuit of religious beliefs, but
they are not required to do so. Importantly, the Court in Smith held that a neutral law of general
applicability does not violate the Free Exercise Clause of the First Amendment.
Justice Scalia, writing for the majority,
said: “To permit this would be to make the professed doctrines of religious
belief superior to the law of the land, and in effect to permit every citizen
to become a law unto himself.”
Subsequently, the federal government and a number of states enacted
Religious Freedom Restoration Acts (RFRA) to circumvent the Smith decision – essentially to arm
individuals with a sword (or automatic weapon) to defend all sorts of acts in
the name of religion.
Fast forward 24 years.
In the name of religious freedom, more than fifty lawsuits have been filed in the last couple of years challenging contraceptive mandate under the
Affordable Care Act. To permit
businesses and institutions to deny employees contraceptive coverage as part of
a medical insurance package under the guise of religious freedom would put them
above the law.
Returning to Arizona’s and Virginia’s bills, to allow
Arizonans the right to discriminate in the name of religion or Virginia
students to turn public schools into churches would be a perversion of freedom
of religion. While we have a right to
believe whatever we want, we don’t have the right to act in a manner that causes
harm to others.
