Written by Don Byrd
Advocacy groups are pressuring Kentucky Governor Steve Beshear to veto a recently passed religious freedom bill. House Bill 279 is essentially a state version of the federal Religious Freedom Restoration Act, which requires the state to demonstrate a compelling government interest to maintain a substantial burden on religious exercise. A dozen or so other states have similar provisions.
In a column this morning for the Lexington Herald-Leader, religion reporter Peter Smith notes research that suggests these laws have probably not been as helpful as its proponents argue, nor as troublesome as its detractors warn.
It’s a little too soon to say conclusively that the bills themselves have much effect,” said Robert Martin, a Penn State University researcher who has done doctoral research into the U.S. Religious Freedom Restoration Act of 1993 and the state laws modeled on it.
In theory, he said, it should be easier for citizens to prevail in challenges against the government when they feel it’s infringing on their religious rights.
But Martin, in a survey of published cases in state appellate courts, found that’s often not the case — whether it comes to landlord rights, drug use, driver’s-license photos or even highway beautification.
“There’s a very low success rate of people making these kinds of claims,” Martin said. “Courts tend to be fairly deferential to the government in finding where there are compelling interests.”
From my perspective, the issue is less about how many plaintiffs win and lose. After all, there are lots of kinds of claims out there, deserving and not. The more important question is: what is the best standard for the law to employ in evaluating claims of substantial harm to religious exercise. Holding the state to a compelling interest standard, and a plaintiff to the substantial burden standard seems like a reasonable, well-balanced start. Nothing that I can see in litigation statistics suggests otherwise.
[UPDATE: Louisville Mayor Greg Fischer is also calling for Gov. Beshear to veto the measure. The Governor has until Friday to either sign the bill, veto it, or let it become law without his signature.]
