Center for Arizona Policy: A Good and Balanced Law

By Cathi Herrod, President, Center for Arizona Policy

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.

The True Facts About Religious Freedom Laws

By Sarah Torre, Heritage Foundation

The mainstream media has launched an all-out blitz over a new law that protects the fundamental freedom of Indiana citizens from unnecessary and unreasonable government coercion.

The media’s gross mischaracterizations of the Indiana Religious Freedom Restoration Act ignore the truth: Religious Freedom Restoration Acts prevent government discrimination against religious free exercise and simply provide a way to balance religious liberty with compelling government interests.

Religious liberty isn’t an absolute right. Religious liberty doesn’t always trump. Religious liberty is balanced with concerns for a compelling state interest that’s being pursued in the least-restrictive means possible.

The First Amendment Partnership, an organization whose mission is “to promote and protect religious freedom for people of all faiths,” created the below infographic separating myth from fact on Religious Freedom Restoration Acts:

As Ryan T. Anderson and I explained Thursday, the Indiana law is good policy. Like the federal Religious Freedom Restoration Act, Indiana’s new law prohibits substantial government burdens on religious exercise unless the government can show a compelling interest in burdening religious liberty and does so through the least restrictive means.

These protections for religious freedom provide a commonsense way to balance the fundamental right to religious liberty with compelling government interests.

By passing its Religious Freedom Restoration Act, Indiana joins the 19 other states that have implemented such laws. Eleven additional states have religious liberty protections that state courts have interpreted to provide a similar level of protection. These commonsense laws place the onus on the government to justify its actions in burdening the free exercise of religion.