S.D. lawmakers consider religious-protection measure

By The Associated Press

02.12.01

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PIERRE, S.D. — An effort designed to enhance religious freedom in South Dakota may be unconstitutional and could allow such things as bigamy, lawmakers were told last week.

But supporters of House Bill 1190 said Jan. 9 that it would limit government intrusion into religious beliefs and practices.

The prime sponsor of the bill, Rep. Dick Brown, R-Sioux Falls, said it would reinstate a legal test that judges must use to determine if a person's religious beliefs may be trumped by government restrictions.

Government regulations could not prevail unless they were found to be essential and the least restrictive means of protecting life, liberty, property and health, Brown said.

The U.S. Supreme Court had applied the highest standard of protection for religious freedom from 1963 until 1990, when the high court substituted the lowest standard of protection, Brown said. Congress enacted the Religious Freedom Restoration Act in 1993, which attempted to overturn that position, but the Supreme Court declared the law unconstitutional in 1997, he said.

But the high court said states may adopt their own laws, and that is the genesis of HB 1190, Brown told the House State Affairs Committee on Feb. 9, which delayed action on his bill until tonight.

"It would require that where a religious claimant demonstrates a substantial burden on sincere religious practice, then the government would have to show the burden is an unavoidable consequence ... of a compelling government interest," Brown said.

Ben Leslie, a Baptist minister and professor of theology at North American Baptist Seminary in Sioux Falls, said the Legislature should restore the higher level of protection for religious freedom, and he urged approval of HB 1190.

Religious beliefs should be regarded as a right, not a convenience, Leslie said, adding that churches across the state support the legislation. "It is a simple bill that makes good sense."

Leslie said the 1990 high court decision in Employment Div., v. Smith, which provided a lesser standard of religious freedom, was a mistake.

"It disregards the long-standing tradition in our nation of making accommodations for each other's religious beliefs and practices as a matter of right and not as a matter of convenience," he said.

But opponents said the bill could lead to such things as bigamy and allowing people to use illegal drugs because they claim it's part of their religion.

Neil Fulton, a Pierre lawyer, said the Legislature could not enact a law that was contrary to the 1990 ruling of the Supreme Court, which was based on an interpretation of the U.S. Constitution.

"You flat can't do it," he said.

If the bill becomes law, it could be found unconstitutional, he warned.

"This bill has no secular purpose," Fulton said. "Its primary purpose is to advance religion.

"You are setting yourself up [for] a serious constitutional problem," he said.

The motives behind the bill cannot be faulted, but the measure cannot supplant the amount of religious freedom already provided in both the U.S. and state constitutions, said Tom Barnett, secretary-treasurer of the State Bar.

"This bill is a solution hunting for a problem in the state of South Dakota," he said.

"Religious freedoms in South Dakota are alive and well," added Dick Tieszen, lobbyist for the state Sheriffs Association. Sheriffs worry that the bill could result in all kinds of lawsuits from inmates who have lots of time on their hands to think up ways their religious freedom is being curbed, he said.

That may happen, said Mark Tammen, a Presbyterian minister and lawyer who testified in favor of the bill. But he said even prisoners don't lose all their rights.

"It will certainly be inconvenient to accommodate religious beliefs of prisoners ... but they don't check their religious-liberty rights at the door," Tammen said. "That control should not extend to matters of their soul or spirit."