by Travis Weber, J.D., LL.M.
February 27, 2015
Down in Arkansas, opponents of individual rights and personal freedom are doing what they can to defeat H.B. 1228, the state Conscience Protection Act, a freedom-loving bill which is designed to ensure that individuals’ consciences and beliefs cannot be easily trampled by intrusive government regulation.
Human Rights Campaign proudly points to a statement by Apple in which the company opines on a religious rights bill it apparently does not understand—for H.B. 1228 does not diminish “equal treatment under the law” for anyone, certainly not based on their sexual orientation. The only thing it does is keep a powerful government in check. The idea that the company is demeaning the religious beliefs of the citizens of the same state whose business opportunities it is taking advantage of is apparently lost on Apple.
Here and elsewhere, opponents know they can’t defeat the bill by simply showing their hatred for anything religious. So here and elsewhere, some put forward religious figures as their “spokespeople” against the bill, trying to use religion for their ends. Meanwhile, these poor individuals don’t realize they are opposing a bill which would support their own individual rights and liberty when the government comes calling for them in the future.
Others don’t even pretend to focus on the actual issue, claiming “the point of the bill is to prevent equal treatment of gay people, even if it has no effect on anyone’s beliefs,” and implying H.B. 1228 would allow a gay person to be “denied a hamburger, an apartment or a job because of his or her sexuality.” Anyone who actually takes the time to understand how the bill works would know it does no such thing. It is precisely the “effect” on “beliefs” that has so many seeing the urgent need for such bills as forced conscience violations under penalty of law increasingly emerge elsewhere.
Enough about the misinformation on H.B. 1228. Let’s review the facts, for truth’s sake:
What does the bill actually do?
H.B. 1228 protects sincere conscientious objectors of all religions from over-intrusive government regulation burdening their religious practice, while winnowing out those using religion as a pretext to escape application of general laws. Neither the Conscience Protection Act nor similar laws protecting religious exercise would allow businesses to “turn away” customers or engage in “discrimination” as they see fit.
How does the bill actually work?
H.B. 1228 allows a person to appeal to their religious beliefs as a basis for their claim or defense in a judicial proceeding.
Under the bill, an individual first has to prove they have:
(1) A religious belief, and
(2) Which is also sincere, and
(3) Which has been substantially burdened by the government action in question. Only then can their claim move forward.
Only if the person making the religious claim satisfies those three elements does the claim move to the second stage. At this stage, the government must show that:
(1) It has a compelling interest in burdening the religious practice, and
(2) It has only burdened the practice in the least restrictive way possible.
If the government can make both of these showings, its law or regulation is allowed to infringe on the religious practice—even under H.B. 1228. However, if the government fails to make both of these showings, the religious claim will prevail, and at that point the person is entitled to legal protection for their religious beliefs and practices. Even then, the person must look to the court’s application of similar laws; in no cases would H.B. 1228 simply allow people to appeal to religion to act as they wish apart from judicial involvement. It is important to remember that just because someone brings a religious rights claim does not mean that the claim will win in every case.
This is a legal standard known as “strict scrutiny.” It has been used in constitutional law for decades, and has been applied to religious claims for over 20 years under the federal Religious Freedom Restoration Act (“RFRA”)—all without any “discrimination” or pattern of abuses such as those claimed by the opponents of H.B. 1228.
This RFRA framework does not permit anyone to automatically do anything in the name of religion; they have to jump through all the hoops discussed above. RFRAs and laws like H.B. 1228 merely protect those of all faiths whose sincere beliefs are in danger of being unnecessarily burdened by the government, while winnowing out those using religion as a pretext to escape application of general laws. For all these same reasons, claims that the Michigan RFRA will “let EMTs refuse to serve gay people” and that the Arizona and Mississippi RFRAs from previous years are “right-to-discriminate” bills are completely misleading. When people are provided with a proper understanding of strict scrutiny’s application to religious claims, they can see that opponents of these bills are engaging in baseless fabrication.
Who needs the bill’s protections?
Everyone with religious beliefs and a conscience—regardless of their religion, political views, the content of their beliefs, or how they apply those beliefs.
Religious freedom laws like H.B. 1228 never used to be (and still should not be) a partisan issue, as they protect those of all faiths and political persuasions. Indeed, when the federal RFRA was passed in 1993, a coalition of groups from across the religious, political, and legal spectrum—from the Southern Baptists to the ACLU—came together to support restoring strong protections for free exercise claims. A review of RFRA and free exercise case law going back decades clearly shows its benefit to everyone from Muslims to Jews, Christians to Santeria adherents, and Native Americans to more obscure sects, as they seek to protect their beliefs and consciences in the face of ever more intrusive government. Moreover, these laws are not political—they cut across racial and social lines, and apply in a variety of factual scenarios, such as property disputes, social welfare (just this past year, the Texas RFRA served as protection for those seeking to care for the homeless), conscience objections to abortion, and restrictions on using controlled substances in religious ceremonies. H.B. 1228 and RFRAs like it are not fact-specific. They are not race-specific. They are not religion-specific. And they are not political party-specific.
Americans of all political persuasions and religions who care about individual freedom from government coercion should get behind H.B. 1228. The bill’s text and our established practices for analyzing religious claims show that H.B. 1228 will merely support conscience rights for all in the face of ever larger and more intrusive government—it does nothing more, and nothing less. That’s something all Americans can support.