Professor Hamilton: No doubt about it! These extreme RFRAs threaten the vulnerable
Critics fear ‘religious freedom’ bill would allow legalized discrimination
AUGUSTA — Sen. David Burns, R-Whiting, says Mainers need protection from state laws that may impede their religious freedom. But the law he proposes to achieve it is drawing fierce criticism from those who say his bill would create an open door to legalizing discrimination.
Burns said his proposed legislation, LD 1428, would codify into Maine statute a 1993 federal law called the Religious Freedom Restoration Act, which turned back a Supreme Court decision that said laws that could infringe on religious activity are constitutional as long as they didn’t single out any particular religion.
Instead, the Religious Freedom Restoration Act looked to former court precedent, ruling government must show a “compelling” interest if it “substantially” burdened anyone’s freedom of religious exercise. Then, in 1997, the Supreme Court ruled that the Religious Freedom Restoration Act applied only to the federal government, not the states. Since then, 18 states have adopted their own laws similar to the Religious Freedom Restoration Act.
Burns’ bill would institute a similar standard in Maine: It would restore the “compelling interest” test and provide a claim or defense to a person whose exercise of religion is burdened by state action or law.
In other words, anyone claiming a legitimate religious belief could sue the state if they thought a state law burdened their religious exercise. One could also claim religious belief as a defense in court. The legal burden would be on the state to justify its law or action.
Burns, who is a member of the Judiciary Committee, which heard testimony from dozens of people for and against the bill Thursday, told the panel that the law was essential to protecting Mainers’ First Amendment rights.
“Without sufficient protection for this right, citizens are never more than one judicial opinion away from losing their religious freedom,” he said.
Burns’ bill differs from the Religious Freedom Restoration Act in providing claim or defense for any “burden” on religious exercise — substantial or otherwise.
The term is legally significant, said Zachary Heiden, an attorney with the ACLU of Maine, who said any minor inconvenience could be considered a “burden.”
Heiden joined a coalition of opponents to Burns’ bill, who said the law would elevate religious belief to a level that legally protected discrimination, and put one person’s religious beliefs ahead of laws meant to protect all Mainers.
For example, Oamshri Amarasingham, a lawyer with the American Civil Liberties Union of Maine, said a provision of the bill that creates a defense or claim in court “regardless of whether the state or one of its political subdivisions is a party to the proceeding,” is aimed squarely at Maine’s Human Rights Act. That law protects Mainers from discrimination based on race, color, sex, sexual orientation, disability, religion, ancestry and national origin.
“LD 1428 would also pit religions against each other, leaving the state and courts in an impossible position,” Amarasingham said. “In a case where a store owner of one faith refuses to serve a customer of a different faith, who would win? It is hard to imagine how a court would resolve such a dispute without running afoul of the First Amendment.”
Another opponent, Apollo Karara of Portland, said he fled Rwanda during the conflict that saw the genocide of ethnic Tutsis in the 1990s. Karara said he was a Christian, and that he was glad to have the freedom afforded to practice his religion in America. Still, he said he worried Burns’ bill would start Maine down a “slippery slope.”
“I know firsthand how dangerous it can be to decide that your personal beliefs entitle you to break laws that protect us all,” he said in written remarks.
Arguing for Burns’ proposal, Carroll Conley, executive director of the Christian Civic League of Maine, said the bill would not guarantee an outcome in court one way or the other, but would simply make the state prove that it had good reason to infringe on anyone’s religious liberty.
In written testimony, Jeremiah Gys, an attorney with the Liberty Institute, a religious advocacy group, said that’s not too much to ask.
“Asking the state to move cautiously and compellingly is a small price to pay when religious liberty is at stake,” he wrote.
The Judiciary Committee will consider the bill during a work session on Jan. 23, at which time they could make amendments and vote on whether to recommend that the full Legislature pass or reject LD 1428.
Supporters and opponents of the bill poured into the State House for the hearing. Each side held rallies before the hearing to advocate for their positions.