So states pass religious protections — then what?

By Jeremy Leaming
First Amendment Center

Potential legal problems of state RFRAs

Will state legislatures be able to command their courts to make it as tough as possible for government to do anything that might accidentally curtail someone's religious practices? That's one big question about the movement to pass state versions of Religious Freedom Restoration Acts, or RFRAs.

Another one: Will such strict legal tests unconstitutionally give greater advantage to religious people seeking exemptions from an array of state laws and actions?

Those two concerns permeate the discussion on the potential effects of state RFRAs. Both pertain to the "establishment clause" of the First Amendment, which says, "Congress shall make no law respecting an establishment of religion." This is the clause that keeps church and state separate, and that courts have interpreted as requiring government to maintain a neutral position on religious matters.

Indiana University law professor Daniel Conkle, a constitutional-law scholar, believes "it is conceivable, but doubtful, (that) establishment-clause problems" would arise under state religious-freedom protection bills.

"I assume that all of them will contain language — like the federal version — saying that nothing in the act is to subvert the establishment clause," Conkle said.

Rhode Island and Connecticut enacted in 1993 religious-freedom protection acts employing the "compelling interest" and "least-restrictive means" tests to any government law or action affecting religion and its practice. Both states' bills contained language saying the acts were not to be interpreted as constituting any preference for religious-based actions.

The fact that the two New England state laws remain intact, however, does not mean all other state religious-freedom protection acts will survive potential constitutional challenges, some observers say.

Keeping church, state separate
Vanderbilt University law professor Tom McCoy said state RFRAs might indeed raise separation of church and state problems. State initiatives, he said, "are creating a preferred treatment of religion that is not required under the free exercise clause.

"Preferred treatment for religion that goes beyond the parameters of the free exercise clause end up violating the establishment clause," McCoy said.

Marci Hamilton, who successfully argued against the federal RFRA in the Supreme Court, says state RFRAs will "open a Pandora's box of unimagined problems."

Such acts, according to Hamilton, will subvert the First Amendment's principle of separation of church and state; undermine the duty of state courts to interpret law; and interfere with numerous government health and safety initiatives.

She adds that state RFRAs will "displace the Smith standard of review in every case and controversy involving claimed burdens on religious conduct and to replace it with a standard that gives religion significantly more leverage benefit to religion."

(Smith was the 1990 case that gave government more leeway to make decisions for the public welfare even if they affect some religious practices.)

Offering an example of potential RFRA-induced trouble to Maryland lawmakers, who are currently considering a religious-freedom protection act, Hamilton said that if a church wants to avoid a zoning ordinance, the government "must tailor its law to the least-restrictive means for that church. If a philosophical bookstore or other business wants to do the same, it does not have the same right."

North Carolina case: preview of RFRA problems?
Here's an example of the kind of legal wrangles that state RFRAs could unleash. It involves secular objections to laws that seem to favor religion — the sorts of challenges that could well crop up under state RFRAs, even though North Carolina isn't considering one.

The North Carolina Supreme Court ruled the week before last that a state statute providing tax exemptions for religious nonprofit groups operating retirement homes subverted the state's constitution and the First Amendment's establishment clause.

Two nonprofit North Carolina corporations were denied the tax break because they were not religiously affiliated — a requirement to be excluded from taxes on real property under the state statute. The corporation sued the state arguing that the statute had the effect of advancing religion in violation of the state's constitution and the establishment clause.

The majority in In re Springmoor agreed with the nonprofit organizations and ruled that the state's tax law created a class of exemptions purely on religious lines. Citing a 1989 U.S. Supreme Court decision in Texas Monthly, Inc. v. Bullock, the court concluded that the state law was "narrowly divided so as to prefer religion over non-religion" and that there is "no legitimate secular objective sufficient to justify this preference."

Justice Brennan, writing for a plurality in Texas Monthly, ruled that the statute violated the separation of church and state primarily because it gave a tax break to religious publications but not secular ones. The disproportionate treatment violated the Supreme Court's two-part test used to determine when government actions run afoul the establishment clause.

Marci Hamilton maintains that this test — which requires courts to determine whether a law or government action purposely and actually advances or inhibits religion — will ultimately prove fatal to state RFRAs.

Michael McConnell, a University of Utah law professor and religious-liberty scholar, however, disagrees with the assertion that religious-freedom protection acts could potentially subvert the separation of church and state.

"When I last looked, the separation of church and state had two components: a protection for free exercise of religion and from the establishment of religion," McConnell said.

"We have gotten a little out of kilter because no longer is there serious protection for the free exercise of religion," he said. "To restore that balance can hardly be said to undermine the separation of church and state."

Religious knives in public schools
Testifying before the California assembly regarding the state's proposed religious-freedom protection act, Eugene Volokh, a UCLA law professor, said the act "would make it harder for the government to control its employees, its public school students, its property, and its prisons."

Volokh offered the following situations as potential problems regarding government employees:

"Say a police officer, for religious reasons, refuses to guard abortion clinics, or that a government mailroom worker refuses to deliver materials that he considers sacrilegious. Under the proposed act, this would give rise to a religious freedom claim — a claim that the employee might well win.

"This 'compelling interest' test is an intentionally toothy requirement," Volokh said. "Mere administrative convenience, or avoidance of costs to the government, isn't enough to pass muster. So the government might well have to let police officers choose their beats, let mailroom workers choose what they deliver, and hire — at considerable expense and cost to morale — more officers and mailroom workers to take up the slack."

Volokh also mentioned a 1995 federal court case in California that resulted in a RFRA victory for three elementary school children who claimed a central tenet of their Sikh religion required them to wear at all times long hair, sacred underwear, steel bracelets and ceremonial knives.

The children's parents sued the school district after officials barred the children from wearing their knives to school. School officials cited a districtwide policy banning all weapons, including knives. Officials also pointed to two state statutes making it a crime to carry a knife with a blade longer than 2½ inches on school property.

Even though the state had a compelling interest in keeping children safe at school, and despite evidence that the children's faith mandates they use the knives to propagate "God's justice," possibly violently, the federal appeals court found that the state could not overcome the rigorous standards of RFRA. Therefore the court allowed the children back on school grounds with their knives.

Even under RFRAs, religions could lose cases
Ira C. Lupu, a George Washington University law professor and author of numerous law reviews and articles regarding RFRA, questions the uproar over the Smith decision. He also wonders whether state religious-freedom protection acts will significantly change the way religion is treated when it runs up against government laws and actions.

"Smith did not 'gut' religious liberty," Lupu said. "It is fair to say that Smith watered down the promise of protection for religious liberty. But that promise had been diluted prior to the Smith decision."

After RFRA was enacted in 1993 and before its demise in 1997, Lupu says there were a "couple hundred judicial decisions under RFRA, and religions lost many, many more times than they won under the act."

Lupu attributed the poor showing for religious claims under RFRA to the fact that "judges tended to dilute the meaning of the act."

Moreover, he suggests, individual state religious-freedom protection acts will raise establishment clause and separation of powers problems.

"I think it is a mistake to enact these bills," Lupu said. "You cannot reduce religious liberty to a simple formula; you can't codify religious liberty and make it work.

"I think you should let state courts work out religious-liberty claims under their own constitutions and over time, a richer, fairer body of religious liberty law will emerge."