April 3, 2013 | Posted in Legislation, Religious Freedom | By

SB1119, the Religious Freedom Restoration Act (RFRA) affirms the traditional interpretation of “free exercise of religion” under the U.S. Constitution and the Arkansas Constitution. It provides legal recourse for individuals whose religious freedoms are infringed and prescribes penalties for filing frivolous or fraudulent lawsuits.

  • The RFRA reaffirms that individuals have all the religious liberties identified in the U.S. Constitution and the Arkansas Constitution.
  • Under a 1990 U.S. Supreme Court ruling[1], the legal emphasis of free exercise of religion changed from the act of doing something—for example, going to church—to believing something—for example, believing in God. This is a major shift in the way our country treats religious expression, because it relegates religion to a mental exercise instead of including physical activities as well.
  • Prior to 1990, if the government passed a law that interfered with a person’s free exercise of their religion, the government had to 1) Present a compelling governmental interest served by the law and 2) Demonstrate that it restricted the exercise of religion in the least intrusive manner possible. The U.S. Supreme Court changed those requirements in 1990. However, individual states may restore the definition of “free exercise of religion” for their citizens. The RFRA does that for Arkansas.
  • It states that individuals have the right to practice religion without being burdened by the government. It mandates that no government can burden the exercise of religion without proving that doing so is “In furtherance of a compelling governmental interest; and the least restrictive means of furthering the compelling governmental interest.”
  • If a person’s exercise of religion is burdened by the government, they may file a lawsuit. The court may award relief deemed necessary to make up for the offense. If a person files a frivolous or fraudulent lawsuit, they may be liable for the government’s court costs.
  • Similar bills passed in Tennessee in 2009[2]; Texas in 2005[3]; and Oklahoma in 2000[4]. Missouri passed an RFRA in 2010[5], but it did not include civil remedies.
  • Altogether, 16 states have passed Religious Freedom Restoration Acts. Twelve more have state constitutional amendments affirming the free exercise of religion in a similar manner.[6]
  • Arkansas is currently one of 17 states with no RFRA or similar law or amendment explicitly affirming the free exercise of religion.[7]

Q&A

Why is the RFRA necessary?

Answer: A U.S. Supreme Court ruling in 1990 changed the legal interpretation of “free exercise of religion” from an action (i.e. the act of practicing your religion) to a belief (i.e. the belief in a religion). This distinction could create situations in which religious discrimination on the part of the government is justified due to the fact that a rule or law only affects a person’s ability to engage in religious activity, not their ability to believe something. The RFRA restores the pre-1990 interpretation of the concept of “free exercise of religion”.

Religious liberties are insured by our constitution. Why do we need a law giving us what we already have?

Answer: The RFRA restores the legal concept of freely exercising one’s religion to the pre-1990 interpretation—that is, the interpretation that existed from the time of the Founding Fathers until 1990.

Will this bill give religious extremists a license to disrupt our public schools, public gatherings, or the safety of our public buildings?

Answer: No. The RFRA allows the government to infringe on a person’s religious practice to the extent that doing so 1) serves a compelling governmental interest, and 2) is done in the least restrictive manner possible. Public education, public gatherings, and public safety are all well-documented governmental interest. Courts have ruled repeatedly the government has legitimate jurisdiction in these areas. Any lawsuit brought against the government over one of these issues would likely be dismissed as frivolous or fraudulent.

Will this law enable adults to abuse children as a part of their religious practices?

Answer: Absolutely not. The protection of children is a well-documented “compelling governmental interest” that would supersede any religious teaching to the contrary.

Will this law protect religious cults that abuse their members?

Answer: No. If the government did not have the right to prohibit theft, abuse, fraud, and other crimes, the courts would have proven it long ago. Governments have the right to outlaw criminal behavior, and religious freedoms do not exempt a person from abiding by the law (See Reynolds v. United States, 1878). The RFRA changes nothing, in that regard.

Will this law protect a Catholic Priest or other clergyman who abuses a child?

Answer: No. As said before, the protection of children is a well-documented governmental interest. The RFRA could not be used to justify child abuse.

Will this law allow Muslim extremists to stone or dismember people who violate religious laws?

Answer: No. Killing or hurting another person has never been accepted as a legal religious practice in America. That would not change under this bill.

Could this law complicate matters in public schools where Muslim students might want to wear traditional Muslim attire in violation of the school’s dress code?

Answer: It’s already legally questionable whether or not a school can bar students from wearing religious attire without cause. A carte blanche prohibition on traditional Muslim attire would almost certainly be interpreted as discriminatory by a court, with or without the RFRA. However, if the school can present a compelling interest for prohibiting certain forms of attire—such as a fear that long robes, trench coats, and similar clothing might be used to smuggle prohibited items into a classroom—then such a dress code would probably have a good leg to stand on in court. However, it’s doubtful the RFRA would increase the incidence of lawsuits against school officials over dress code, because that has not been the case in other states.

Will this bill put Arkansas law in conflict with federal court rulings against prayer in public school?

Answer: No. Even with the RFRA, schools will still have to abide by federal laws and court rulings. No part of the RFRA requires government institutions to engage in religious activity.

Will this bill lead to frivolous lawsuits against public school teachers or other school officials?

Answer: The RFRA specifically deals with frivolous or fraudulent lawsuits. Any suit that lacks merit will be dismissed under the RFRA, and the person who filed it may be liable for the Defendant’s court costs. If anyone does file a frivolous lawsuit under the RFRA, the person against whom it is filed should have nothing to fear.

What if a public school student’s practice of his or her religion is disruptive to the school environment?

Answer: Conducting public education in a peaceful and orderly manner is a compelling governmental interest. As such, the school would be entirely within its legal right to stop any disruptive behavior.

Will this bill force public schools to make their facilities available for use by all religious groups?

Answer: No. We are not aware of any cases in which a state’s RFRA has been used to force public schools to allow private religious groups to use their facilities. If someone did try to use the RFRA as grounds to sue a school in order to use its property for a religious function, the school would most likely have little trouble demonstrating that the way in which their property is used represents a compelling governmental interest.

Will this law impact attendance at schools or places of employment, if students or employees wish to miss school or work to celebrate their own religious holidays?

Answer: This bill does not affect private employment. The government has a compelling interest in school attendance and state workplace attendance, and should have little trouble demonstrating so, if the need ever arose in court. This issue has rarely been litigated in the past, and would probably not become any more prevalent once the RFRA is adopted.

What good have these types of laws accomplished anywhere they’ve been passed?

Answer: In Texas, a Religious Freedom Restoration Act was used to protect a growing church’s ability to build on its property. The church was denied a building permit by the local government, despite the fact that it was properly zoned, had the necessary property, and no known objections from neighboring property owners. The Texas Supreme Court ruled that the city government had no right to burden the church’s free exercise of religion by denying them a building permit without cause. Under the post-1990 interpretation of “free exercise of religion,” this ruling may have been very different, because denying a building permit in no way affects a person’s ability to believe something; however, because of the state’s RFRA, the courts ruled that denying the permit burdened the free exercise of religion for that church, and granted them the permit they needed to build additional Sunday school classrooms and facilities onto their existing church building.

Will this law protect parents who deliberately withhold medical treatment of their children based on their religious beliefs?

Answer: No.  All existing laws that apply to child abuse, neglect, or maltreatment will still apply.

If this law had been in place in New York City, would a state or city officials have been able to halt the construction of a Mosque at Ground Zero?

Answer: The RFRA would have had little impact on that situation. The City of New York would still have been forced to demonstrate a clear, legal reason for denying or approving the permit to build on that location.  If the City had denied the permit without explanation, the RFRA might have provided some legal recourse for proponents of the mosque, but such was not the case.

 


[1] Employment Division, Oregon Department of Human Resources v. Smith, 494 U.S. 872 (1990)

[2] Tenn. Code Ann. § 4-1-407

[3] Tex. Civ. Prac. & Rem. Code § 110.001 et seq.

[4] Oklahoma Statutes, Section 251 of Title 51

[5] RSMo §§ 1.302 and 1.307

Jerry is the founder and president of Family Council. He began Family Council in 1989 after a successful effort to amend the Arkansas Constitution to prevent the use of public funds for abortions. He and his wife reside in Little Rock. They have four sons.