Religious Freedom Restoration

Gray_rocks_2012-08-03

2015-04-06 – Liberals have gotten their knickers in a bunch over Religious Freedom Restoration Acts (RFRAs) in Indiana and Arkansas, saying that they would be used to smack down LGBT rights.

Maybe they would, but since when did liberals oppose religious freedom or conservatives embrace it? I think I detect a bit of a flip flop here.

The original Religious Freedom Restoration Act was introduced by Chuck Schumer in the House (when he was a Congressman) and Ted Kennedy in the Senate. It was signed into law by Bill Clinton. The law was an attempt to overrule a decision of the Supreme Court that reduced the protection of the first amendment for religious activity.

Prior to the Supreme Court decision, government action that was alleged to infringe religious liberty was subject to a stringent test (called “strict scrutiny”). The old rules said that a law that is nominally neutral on religion can burden a religion just as much as a law intended to be a burden. Plaintiffs could come into court and be relieved of the burden unless the government showed two things: that the law they seek to enforce furthered a compelling government interest and that the government interest couldn’t be pursued in a less restrictive way.

The Supreme Court abandoned this rule and Congress acted to restore it. Talk about radical! They acted to restore the status quo ante. The Supreme Court came back and said, nyah, nyah, nyah, we’ll let RFRA stand, but only for federal laws. States are free to burden religious activity as they will.

So states began enacting RFRAs of their own. So far, so good. So far, so liberal.

A couple of things happened to turn this around.

First, some conservative lawyers figured out that RFRA could be used to strike down some liberal laws (as in the Hobby Lobby case).

Second, some legislators started fiddling with the language to give corporations “religious freedom,” whatever that means.

And third, some legislators started expanding the definition of a burden on religion so that now religious freedom encompasses the right of individuals to impose their religious views on others.

I have no problem with the first point, if we could be rid of the second two. Conservative religion is pretty much the only kind of religion that is going to be burdened. For the rest of us, it’s “whatever!” We obey the law or challenge it on other grounds. If you don’t have religion, your religion is not going to be burdened.

But let’s get rid of the idea that corporations have religion. There is no place in heaven where corporations go when they are dissolved. You might think that corporations go to hell, but they don’t go to hell either.

And most of all, let’s not use these laws to cede governmental powers to religions. The whole point of the first amendment and the untampered-with RFRAs is to keep government and religion separate. Government should not be intruding on the role of religion. And religion should not be intruding on the role of government.

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