HB 279 restores judicial review of laws affecting freedom of religion

By Rep. David Floyd
50th District State Representative

Thursday, March 27, 2013, 11:55 a.m. – Governor Beshear vetoed HB 279, the bill that seeks to restore judicial scrutiny of laws, ordinances, and regulations that might infringe on a person’s constitutional right to freedom of religion.

Our freedom of religion is based on the First Amendment to the U.S. Constitution, and also in Sections one and five of the Kentucky Constitution.

Judicial decisions regarding religious liberty in the United States have long been informed by what is called “strict scrutiny.” That is, the government must prove that it has a “compelling interest” before it acts to limit an individual’s religious freedom. (Furthermore, if the compelling interest was present, government could act in only the least restrictive way.) This approach was wise, since it struck a balance between government acting to regulate the conduct of its citizens while preserving the right of the people to freely practice their religion.

However, in 1990, the US Supreme Court moved away from that “strict scrutiny” to what is called a “rational basis.” This meant that they decided that the government only needed a reason – any reason – to limit religious freedom. There are so many ways that governments affect our lives now, more than any other time in our history. How, then, to protect minority religious groups from government interference with their religion?

The 1990 decision was a wake-up call for religious liberty in America, and the U.S. Congress enacted the “Religious Freedom Restoration Act” (RFRA) in 1993. I believe only 3 of 100 U.S. Senators opposed it; President Clinton signed it into law.

That worked for four years. But then the Supreme Court, in another decision, essentially freed states to use “rational basis,” primarily because they said that the federal law would apply only to federal cases. And so the battleground moved to the several states.

In 2011, the Kentucky Supreme Court used rational basis in deciding a case against the Amish, which prompted us to undertake the RFRA in Kentucky. I’m not sure how many other states have done the same thing, but it’s at least twelve; let it suffice to say that we are not the first.

Some have characterized HB 279 as an “endorsement of discrimination and hate” and say that those who support it are full of “ignorance and hate.” Yet we note that the federal courts are using strict scrutiny in federal cases, and we have not suffered as a nation as a result of this. Some states have enacted the RFRA; in those places, all alarms have been proven false, no civil rights have been infringed.

As an example: government has a compelling interest in the education of children. But if an Amish parent doesn’t want her child to attend a public school (because it results in excessive exposure to “the world”) the government must prove a substantially compelling interest in removing that child from the home. They have tried in the past to do so, but “religious freedom” prevented their doing it when the courts used strict scrutiny as the basis for their decision.

Here is the HB 279 in its entirety:

“Government shall not [substantially] burden a person’s freedom of religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be [substantially] burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A “burden” shall include indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.” (Note: “Substantially” was inserted (2 instances) in the House via floor amendment.)

Of 138 legislators in your General Assembly, only 13 voted against HB 279. We returned this week to conclude the business of this session, and that includes consideration to override any gubernatorial vetoes. On Tuesday, the house voted to override the governor’s veto. The Senate is expected to follow suit.

Religious freedom is one of the constitutional rights that distinguish America from the rest of the world. Every right was hard fought and is worth preserving. When polity is not influenced by this, the result is tyranny.

The best part of my job is hearing from you, so please call me at home or leave a message at 1-800-372-7181. Our final “Coffee with Dave” for this session is Saturday, 10:00, in Fairfield at Joy’s Grocery. This year’s coffees have been the best ever, and I hope to see you there.

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