New Mexico House approves religious-liberty protection act
Jeremy Leaming
The Freedom Forum Online
03.31.00
(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 compliance.
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 responsibilities."
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).' "