North Dakota citizens will vote on June 12 on an incredibly dangerous ballot initiative. If passed, it would allow people to claim that their personal religious beliefs give them the right to break non-discrimination, health, safety, and child protection laws.
I wish the law allowed me to punch whoever suggested this.
I don't have a problem with this.
All this does is extend
strict scrutiny (or something very much like them; realistically it restores the
Sherbert Test) protections to religious liberty. Prior to 1997 any religious freedom case was decided under that level of review. In 1990 this was reduced by the courts (
Employment Division v. Smith), removing the requirement of a compelling state interest. To quote the majority;
What it produces in those other fields [of race and free speech] -- equality of treatment, and an unrestricted flow of contending speech -- are constitutional norms; what it would produce here -- a private right to ignore generally applicable laws -- is a constitutional anomaly.
The takeaway from this was that states
may exempt people from laws for religious reasons, but didn't have to, even if there was no compelling interest. Instead the standards required only that a law not single out a religious group. So a blanket ban on a particular activity would be uniformly applied to all religions no matter their beliefs on that matter.
In response the
Religious Freedom Restoration Act was passed with strong support on the left and right, the ACLU, various religious and conservative groups, unanimous consent from the House and 97 Senators. This simply restored the Sherbert Test.
However, in 1997 the court
held that the RFRA was unconstitutional in it's application to state law, broadly because Congress may not dictate to the court how to interpret the constitution. The act was amended to only apply to federal law and upheld in 2006. That is to say, on the federal level the Sherbert test applies.
Individual states have been implementing their own versions of the RFRA since then, essentially bringing state law in line with federal law.
It's worth noting two main points about these laws;
1) It primarily defends minority religions. During the three years that the RFRA applied to the states, 18% of claims were made by Jews, Muslims, and Native Americans, at the time making up around 3% of the religious population of the US.
2) Even strict scrutiny isn't that strict in religious freedom cases.
This review suggests some 59% of laws restricting religious freedom and challenged under such standards are upheld by the courts. I'd recommend reading the relevant part of that paper (page 66 onwards). In particular they note that laws challenged under statutes like the RFRA are upheld a full 71% of the time. They then split the cases between discrimination cases and free exercise exemption cases. Discrimination cases are
never upheld; 15 of 15 laws were struck down. Free exercise exemption cases were upheld 74% of the time. So even under the strongest standards only 3/4's of challenges are upheld. And this number has decreased significantly since the 80's, when a far wider range of exemption cases could be brought forwards.
The argument made to explain this goes back to the quoted passage above. The courts can not truly apply strict scrutiny in the broadest fashion without creating gross inequalities - themselves likely constitutional problems - or entirely invalidating otherwise perfectly valid laws. I very much doubt that this is going to change into the future without an absolutely huge sea change in enforceable constitutional interpretation.
Overall I don't see this making much of a difference. Some more religious exemption cases can be brought forwards, but then there are some interesting border cases that probably deserve a solid hearing. Under modern judicial standards it's very unlikely that religious exemptions are going to get much broader. It only brings state law in line with federal law (not to mention other states) without realistically creating any new rights.
The intent behind the law might well be a pile of steaming bullshit, but I don't much care about that or who the sponsors are. The effect looks fairly minimal and, well, fair enough.
Fakedit: Really need to do less reading and writing to post in this thread... I swear this was on topic when I started.
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Topic: Calm and Cool Progressive Discussion Thread (Read 1245355 times)