Written by Don Byrd
Proposed legislation in Maine would make the state the 18th (or so, depending on how you count) in the nation to enact a Religious Freedom Restoration Act. Such laws prohibit the state from burdening a person’s religious exercise unless a compelling government interest requires it. A federal law – which is 20 years old this year – similarly constrains the federal government.
Writing in the Bangor Daily News, bill sponsor David Burns defends the law against charges the law would undermine same-sex marriage. Instead, he says, the purpose is to roll back “attacks” on religion.
In recent years, there has been a flurry of attacks on religious liberties around the U.S., such as demands that Christmas trees not be placed on public property and school plays make no reference to religion. Here in Maine, an elementary school was forced to drop the “Blessing of the Fleet” portion of its annual boat launching ceremony after being threatened with a lawsuit by a Washington special interest group. In Bar Harbor, the town council recently voted to remove a memorial to World War II veterans from a public park. Why? Because the memorial consisted of lights on a Christmas tree.
The common thread in all of these cases is an unprecedented attack on religious liberties in which those affected have no legal recourse.
The aim of my religious liberty bill is to join those other states in adopting religious freedom guidelines to prevent the government from being able to easily infringe on citizens’ rights to freely exercise their religion
But would those examples be covered by the bill? RFRA protects a person’s right to exercise religion. A “person” may or may not include corporations, but RFRA is not intended to protect an exercise of religion by government itself. Indeed, RFRA language, including the Maine bill explicitly indicate that the law “does not affect, interpret or in any way address those portions of the United States Constitution, Amendment I or the Constitution of Maine that prohibit laws respecting the establishment of religion.”
The examples presented by Representative Burns involve questions of government endorsement of religion, through official school events and public park memorials. RFRA, however, is designed to protect individuals burdened by actions of the government, not protect government entities from potential Establishment Clause problems. RFRA is a helpful and appropriate law in protecting religious freedom, just not in the way he suggests.
But there’s another, more troubling, problem with the Maine RFRA proposal. Federal RFRA and most state RFRAs specify the compelling interest test comes into play only when a person’s religious exercise is “substantially burdened.” Mr. Burns’ proposal for Maine (see bill text here) requires only that the exercise is “burdened.” If even an insubstantial burden triggers that high threshold, the law’s protections are potentially out of balance. Similar language recently proposed in North Dakota was opposed by the BJC (which supports RFRA legislation with “substantial burden” requirements) and was defeated at the ballot box.
If the Maine proposal similarly lowers the threshold it should be defeated as well.
