Written by Don Byrd
An editorial in the University of Wisconsin-Madison’s Badger Herald argues the state’s proposed Religious Freedom Amendment – a state version of the Religious Freedom Restoration Act – would disrupt the balance of religious freedom protections already in place. Quoting the Baptist Joint Committee’s Nan Futrell commenting on a state RFRA proposal similar to Wisconsin’s, law student Aaron Loudenslager warns that the Wisconsin threshold for claims under the amendment may be too permissive.
Not only is the RFA a proposed constitutional amendment (meaning it will be essentially permanent) it is also written in much broader terms than the RFRA. The RFRA protects a person’s free exercise of religion from governmental action by requiring that state action pass the Sherbert-Yoder test when the government’s action has a “substantial burden” on that person’s religion. In contrast, the RFA only requires that a government action have a “burden” on a person’s religious exercise for that action to be subject to strict scrutiny.
RFRA strikes a helpful balance by requiring a “substantial burden” on a person’s religious exercise before shifting the burden to the government to demonstrate the necessity of that burden. Restoring the strict scrutiny standard is an admirable goal, but widening the net to catch every “burden” may be an unbalanced way of doing it. Kudos to Mr. Loudenslager for recognizing this subtle but important distinction.
