I’ve lived in the south my entire life. I’m a southerner and proud of it. I love the heat and humidity, the occasional March snow flurries that take us by surprise, the abundance of trees even in our cities. I love sweet tea and fried chicken and lazy summer afternoons watching children play in sprinklers just to take the edge off the steam. As southerners we have an identity. One we share with each other and our families, and if we encounter a Yankee transplant we immediately share with them everything we can about living in the Bible Belt and try to convince them that our way is better and they should come along for the beautiful ride.
We love our churches. There is one on every corner and they are as vibrant and diverse as Georgia’s sunsets. Anyone with a mind to look will almost surely find a faith community that fits their spiritual needs. So when people talk about religious freedom we tend to nod and say “Amen”. We forget how diverse our faiths are. We forget that we must be cautious when it comes to laws that govern our religious freedoms and our personal freedoms. We forget that we’ve made a promise in this country to perhaps not love our neighbors but to always respect their personal rights. We forget that some people may use any lever they have to circumvent the laws that allow us to be part of our great nation. Because quite frankly how could anyone be against religious freedom in a nation where so many of our ancestors were fleeing religious persecution. That is also precisely why we must be vigilant.
About a year ago Georgia’s state Senate and House introduced bills that were promoted as religious freedom bills. They are called Religious Freedom Restoration Acts or RFRAs. At that time I decided to do some research into the legal history of these kinds of bills. What I found was concerning. The legal language in RFRAs sounds harmless but legal language has meaning built upon decades of premise in court rulings. So our common sense interpretation of the language in a RFRA may vary starkly from the actual legal meaning in the bill. Legal language matters and it is not something most of us are familiar with. There is a reason why we southerners are wary of lawyers and politicians.
There are two big legal language problems with Georgia’s RFRA. The first is the use of a legal term called “compelling government interest”. Georgia’s RFRA asserts that no law can be enforced upon someone with a religious objection unless the government has a compelling interest. In legal history the compelling government interest standard is called strict scrutiny and is reserved for government intervention only in the most extreme matters such as those affecting national security, preventing the death of multiple people or at times from preventing discrimination against large groups recognized by the government as minorities. (Sorry people with tattoos are not a recognized minority, nor are gays for that matter.) It is quite literally the highest form of judicial review. This does not extend to protecting the daily personal rights or property rights of your average Joe. It also doesn’t extend to most nuisance laws, zoning laws, environmental laws or animal protection laws that your average citizen would, without question, abide by.
As US Supreme Court Justice Scalia (a very conservative religious republican white guy) put it when in calling into question the wisdom of using compelling interest as a standard for religious exceptions to the law
“If“ ‘compelling interest’ really means what it says . . . , many laws will not meet the test. . . . [The test] would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind – ranging from … the payment of taxes, … to health and safety regulation such as manslaughter and child neglect laws,… compulsory vaccination laws, … drug laws, … traffic laws, … to social welfare legislation such as minimum wage laws, …. child labor laws, … animal cruelty laws,… environmental protection laws, … and laws providing for equality of opportunity for the races.” Justice Scalia – Opinion of the Court – Employment Div. v. Smith.
“We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” Justice Scalia – Opinion of the Court – Employment Div. v. Smith
I have no doubt that Supreme Court Justice Scalia, the author of this opinion of the Court, is qualified to interpret the legal meaning of compelling interest and the consequences of applying it broadly to religious freedom.
Justice Scalia is not the only Supreme Court Justice to have written an opinion of the Court that warns of such broad application of the law. Justice Kennedy echoes Scalia’s concerns below.
“Laws … would fall under RFRA without regard to whether they had the object of stifling or punishing free exercise.” Justice Kennedy – Opinion of the Court – Boerne vs Flores
“RFRA is not designed to identify and counteract state laws likely to be unconstitutional because of their treatment of religion. In most cases, the state laws to which RFRA applies are not ones which will have been motivated by religious bigotry.” Justice Kennedy – Opinion of the Court – Boerne Vs Flores
“RFRA applies to all federal and state law, statutory or otherwise, whether adopted before or after its enactment. RFRA has no termination date or termination mechanism. Any law is subject to challenge at any time by any individual who alleges a substantial burden on his or her free exercise of religion.” Justice Kennedy – Opinion of the Court- Boerne Vs Flores
The Supreme Court’s interpretation of religious freedom laws subject to the compelling interest standard sounds pretty clear and damning if the laws are legislated as written. Georgia’s RFRA is not the only RFRA to have these problems. That’s why SCOTUS has been so wary of them. In general it has been found that many states with RFRAs don’t actually legislate the laws as written. They apply the kind of common sense most of us would apply with religious freedom. SCOTUS has already said that these laws are so broad that they carry with them the likelihood of invalidation. This means that RFRAs will eventually be found to be unconstitutional if they are enforced as written. What happens if Georgia’s proposed bills and others like it in our country are enforced as written? Enforcing the proposed Georgia RFRA as written would be a very big deal and could potentially affect all of us no matter our religion, race or orientation.
Which brings us to the second big problem with Georgia’s RFRA, the type of religious freedom protected under the bill.
In the bill, “‘Exercise of religion’ means any exercise of religion, whether or not compelled by, or central to, a system of religious belief,”. So the protection of religious liberty in this bill extends to personal religious preferences and not just tenets of faith. That is a very broad category. Personal religious preference varies widely. Beliefs about the environment, property rights, healthcare and the proper roles of women and children can all be influenced by religion, and we all know people who don’t share our views on these topics. The list of actions that can be framed as exercise of religion is nearly endless under such a broad definition.
What’s more, the courts can’t use standards like common western practice or science to evaluate the validity of an individual’s or even a corporation’s beliefs. It’s not the court’s role to tell someone their beliefs aren’t valid only to judge whether they are sincere. The court can’t interpret the law one way for Christians and another for Muslims, Buddhists, Wiccans or even Satanists. The Supreme Court literally says so right here:
“it is not for us to say that their religious beliefs are mistaken or insubstantial. Instead our ‘narrow function… in this context is to determine’ whether the line drawn reflects an honest conviction’”. Justice Alito – Opinion of the Court – Burwell Vs Hobby Lobby
The authors of Georgia’s RFRA are honest to goodness dyed-in-the-wool lawyers. They would know the implications of the bill better than anyone. One would assume they know how it can be used if enforced as written since the most qualified legal minds in this nation, the Justices of the Supreme Court of the United States, have already quite literally spelled it out for them. If they don’t want the bill to be exploited, why don’t they change the legal language to prevent exploitation? Why would they want the bill to be enforced as written for Georgia’s citizens, any of Georgia’s citizens, no matter their creed, color or orientation?