Tag archives: RFRA

A good and balanced law

by Cathi Herrod, President, and Josh Kredit, General Counsel and Vice President of Policy, Center for Arizona Policy

June 2, 2015

Cross-posted by permission of the Center for Arizona Policy, part of a national network of partner organizations that advance faith, family, and freedom at the state level.

Many of you likely watched the scene unfold in Indiana last month where supporters of religious freedom sought to pass a fairly simple law called the Religious Freedom Restoration Act (RFRA).

The scene was eerily similar to what played out here in Arizona with the CAP-supported SB 1062. Ignoring the facts, opponents of religious freedom falsely claimed that the bill would allow individuals to have a license to do pretty much anything, all in the name of their free exercise of religion. Or in other words, they wrongly tried to say religious freedom would become the equivalent of Monopoly’s “Get Out of Jail Free Card.”

Yet what was lost in the debate, both here in Arizona and in Indiana is the reality of how these laws actually operate in a court-setting and in real life. They don’t provide a license to do whatever illegal activity somebody wants to do. Rather, they provide the court with a well-established and longstanding legal balancing test for analyzing competing interests.

To provide some background, Arizona has had a state-version of RFRA since 1999, and a nearly identical federal law has been in place since 1993. More than 20 states also have state RFRAs.

In a nutshell, RFRA ensures the government cannot force someone to violate their religious convictions unless the government meets a strict legal test. For the strict legal test, the government must show it has a really good reason for the law and that the law is narrowly tailored to achieve that objective. If the government does that, then the RFRA defense fails and the government law or action stands.

Although Indiana’s original version of RFRA was heavily amended after big business bullied the governor and legislature, the remaining law is still set to take effect on July 1, 2015.

This brings us to a recent story out of Indiana and a perfect example of how RFRA works. Calling his newly formed church the First Church of Cannabis, founder Bill Levin plans to break the law and openly smoke marijuana. If he is cited or arrested, he says he will claim Indiana’s RFRA for protection.

Unfortunately for Mr. Levin, this same ploy was attempted in Arizona already, and Arizona’s RFRA operated just like it’s supposed to.

In 2005, Danny Hardesty was arrested for possession of marijuana, and in court he claimed that the use of marijuana was a sacrament of his church, the Church of Cognizance. This case reached the Arizona Supreme Court in 2009, and in a unanimous ruling the Court ruled against Hardesty.

Even assuming Hardesty had a truly sincere religious belief to smoke marijuana, the Court found that the government has a good reason to prohibit marijuana use (the fact that it poses a real threat to individual health and social welfare, in addition to the public safety concern posed by unlimited use, particularly by those driving motor vehicles), and that “no less restrictive alternative [ ] would serve the State’s compelling public safety interests and still excuse the conduct for which Hardesty was tried and convicted.”

So there you go, RFRA is not a “Get Out of Jail Free Card,” and it does not provide a license to do whatever illegal activity someone wants. Rather, it is a time-tested and just law that allows for courts to acknowledge when the government overreaches and burdens someone’s free exercise of religion, and to balance that against the reasons for the government action.

Please watch for the launch of the 3rd edition of The Policy Pages later this fall, which will include a brief devoted solely to explaining how laws like the Religious Freedom Restoration Act work.

 

Think Progress implicitly endorses Texas RFRA

by Travis Weber

December 12, 2014

Think Progress reported yesterday on a decision by the city of Dallas to revise regulations on feeding the homeless. These revisions, which made it easier to feed and care for those living on Dallas streets, were motivated by a federal court ruling last year in favor of several religious ministries desiring to take food to the homeless and feed and care for them wherever they are found.

Years ago, Dallas had cracked down on feeding the homeless and placed restrictions on how it could be done, and several Dallas area ministries and individuals who were impacted by these changes sued. The Think Progress report discusses these events:

After Big Hart Ministries Association and Rip Parker Memorial Homeless Ministry sued the city, six years passed before a judge ruled that the law violated the charities’ religious liberties under a Texas statute. Wednesday’s City Council vote carries the judge’s logic further, softening the rules charities face and effectively ending Dallas’ effort to clamp down on on-the-street feeding programs for the indigent regardless of religious affiliation.” (emphasis added)

Big Hart Ministries Association, Rip Parker Memorial Homeless Ministry, and William Edwards had sued under the Texas Religious Freedom Restoration Act (“RFRA”). The Texas RFRA states that (1) sincere religious practices (2) cannot be substantially burdened by the government unless the government (3) has a compelling interest which it is (4) advancing by the least restrictive means possible. In their lawsuit, the plaintiffs had alleged that – in violation of the Texas RFRA – they had a sincere belief that their religion requires them to care for the homeless, and that the city was substantially burdening that belief by making it impossible to carry out with heavy regulations on feeding the homeless. Early in 2013, a federal judge ruled that the plaintiffs religious beliefs were indeed substantially burdened, and the city did not have a compelling interest in its regulations – thus, they violated the Texas RFRA. Finally, this past week, in response to this ruling, the Dallas City Council approved changes to regulations on feeding the homeless.

Think Progress does not refer to the Texas RFRA by name – but that’s the law which has benefitted the homeless in this situation. This is exactly what RFRAs – whether in Texas or elsewhere – are meant to accomplish: protect the exercise of sincere religious faith, in recognition of the valuable role it plays in society and benefits it brings to people around us. Furthermore, and contrary to many popular claims, RFRAs do protect religious exercise “regardless of religious affiliation.” A quick search of how the laws have been used in court will reveal that they have protected religious exercise for a variety of faiths.

It would be nice (and intellectually consistent) for Think Progress to extend this logic to other situations implicating RFRA. Indeed, the beauty of law is that it is blind to political preferences. This is why having RFRAs passed into law is so important to protecting religious freedom today. When religious freedom is diminished and made part of a political game, everyone suffers.

At Family Research Council, we fully support RFRA and what it stands for – protecting the exercise of faith for all in the face of often overreaching and too powerful governments.

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