Written by Don Byrd
The House Judiciary Committee of Kentucky approved legislation that would require the state to have a compelling interest to place any burden on religious exercise. This standard is even higher than federal and state RFRA bills (Religious Freedom Restoration Act) that require the burden on religion to be “substantial.” According to the Lexington Herald-Leader, lawmakers hope this legislation would protect religious groups from unnecessary prosecution.
If Kentucky had such a law in recent years, a fight between the state and the Amish community over the appropriate signage for horse-drawn buggies would have been avoided, [Rep. Bob] Damron said.
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The Republican-led Senate approved a proposed constitutional amendment last year that contained similar language about religious freedoms. The measure, which would have required voter approval, died in the Democratic-led House.Damron said Monday he doesn’t think a constitutional amendment is needed to enact the religious freedom protections outlined in HB 279.
The question remains, does this protection go too far? While the BJC led the fight for the 1993 federal Religious Freedom Restoration Act, the group last year opposed a North Dakota measure because, like this bill, it lacked the “substantial burden” requirement included in standard RFRA language. Nan Futrell wrote:
Without the substantial burden requirement, nearly any state law or regulation could be subject to exemption challenges, effectively making religious liberty an automatic trump card. Under RFRA’s more measured approach, courts seek to balance personal religious liberty interests with other important government interests.
The full text of Kentucky’s HB 279 as reported by the Herald-Leader is below:
Government shall not burden a person’s or religious organization’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 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.
