State legislatures advance RFRA, other religious freedom legislation

by | Mar 19, 2021

In Montana, the state senate passed a version of the Religious Freedom Restoration Act (RFRA). The bill (SB 215) would bar state and local governments from imposing a substantial burden on the free exercise of religion unless necessary to further a compelling government interest. (According to religious freedom scholar Douglas Laycock, Montana courts have ruled that state laws already provide a similar level of protection guaranteed by RFRA.) The governor has reportedly endorsed the bill and is expected to sign it if it passes. BJC has supported state RFRA legislation that mirrors the federal law of the same name, but is wary of variations like SB 215 that stray from the federal language, tilting its careful balance.

Meanwhile in South Dakota, Gov. Kristi Noem signed a RFRA bill into law, making South Dakota the first state in several years to enact a new Religious Freedom Restoration Act. This version comes with a twist. In addition to standard RFRA language creating the substantial burden/compelling interest framework for adjudicating disputes between religious free exercise and government action, South Dakota’s law also responds to the current controversy surrounding COVID-19 restrictions. SB 124 makes it unlawful for state or local governments to:

Treat religious conduct more restrictively than any secular conduct of reasonably comparable risk; or Treat religious conduct more restrictively than comparable secular conduct because of alleged economic need or benefit

Oklahoma and South Carolina have also advanced legislation designed to limit the ability of government to restrict houses of worship during public health emergencies.

South Carolina House Bill 3105 (“South Carolina Religious Freedom Act”) provides that religious services are “deemed an essential service during a state of emergency and must be allowed to continue operating throughout the state of emergency.” The bill passed the state house on a 73-39 vote and now heads to the state senate.

In Oklahoma, Senate Bill 368 amends that state’s RFRA law to add a similar provision:

No governmental entity… shall declare or deem a religious institution and any activity directly related to the institution’s discharge of its mission and purpose to be nonessential. No religious institution shall be subject to a closure or restriction for the purposes of health or security that is greater than that imposed upon any private entity facing the same or similar health or security conditions.

The bill passed the state’s senate and is now under consideration by the state house.