By K. Hollyn Hollman, BJC General Counsel
During this election season, the presidential race is the primary focus for political energy. That makes sense, given the important role of the presidency and the varied and tremendous challenges our government faces. In many states, however, there are also election efforts under way with ramifications for religious liberty specifically.
Last month we reported on a North Dakota ballot measure, Initiated Constitutional Measure 3, which supporters dubbed the Religious Liberty Restoration Amendment (RLRA). But unlike the federal Religious Freedom Restoration Act (which the BJC helped to enact) and its state counterparts, the RLRA omitted important language that courts use to balance competing state and individual interests when the government burdens religious exercise. Fortunately, Measure 3 was soundly defeated, with 64 percent of voters rejecting the constitutional amendment.
As we report this month, Missouri voters overwhelmingly passed a constitutional amendment, Amendment 2, with regrettable consequences for religious liberty. The so-called “Right to Pray” Amendment does little to expand existing religious freedom rights and appears to authorize activity that could actually harm religious liberty, such as government-sponsored prayer. The language that appeared on the ballot was a short and misleading summary of the amendment’s full text, which added nearly 400 words of new language to the Missouri Constitution. A lawsuit has already been filed challenging one provision of the amendment, and others may follow.
In November, Florida voters will decide whether to amend their constitution to repeal an important provision that prohibits direct or indirect state funding of churches and other sectarian institutions. This “no-aid” provision has been part of the Florida Constitution since 1885 and has been re-ratified three times since its adoption, most recently in 1997. After a successful legal challenge to the original version of the proposed amendment, the Florida attorney general submitted a revised ballot statement with minor changes. This version, now known as Amendment 8, will appear on the ballot.
These state initiatives deserve our attention because they illustrate efforts to fundamentally alter religious liberty in all states. They offer cautionary tales for other states that want to avoid unnecessary confusion and litigation over religious liberty rights.
The U.S. Constitution and most state constitutions protect religious liberty in at least two important ways: by prohibiting government establishment of religion and by protecting the free exercise of religion. While there are challenges in defining the tests that apply and achieving the proper balance of the two clauses, the BJC works to ensure that both are closely guarded.
By varying degrees, state constitutions also secure religious liberty in ways that complement and strengthen our federal guarantees. The federal constitution sets the floor — meaning a state can’t provide less protection than federal law affords — but not the ceiling. Many state constitutions grant broader free exercise rights or impose greater restrictions on no establishment requirements. Generally, that is a good thing. For instance, many state constitutions, like Florida’s, contain no-aid provisions limiting government funding for religious organizations even more stringently than the federal Establishment Clause. A successful no-aid repeal in Florida could inspire renewed vigor for similar efforts in other states, encouraging voucher legislation and other forms of government support of religious institutions.
Religious liberty is a precious freedom that is affected by elections, including the upcoming presidential election. Through many expressions of executive leadership, including the power to nominate U.S. Supreme Court justices, the president will influence the state of our first freedom. But the power to shape religious freedom is also alive and well at the state level and should not be overlooked. As citizens assess each candidate’s perspectives on religious liberty and other issues of personal import, voters must also stand guard and speak out on efforts at the state and local levels that involve direct threats to our most fundamental freedom.
From the September 2012 Report from the Capital. Click here for the next article.