Wednesday, February 11, 2015

Redundant State Protection of Religion not Needed

Religion is under attack Indiana, so it only makes sense that the Indiana General Assembly would take time to make sure it is protected.

Wait...did I write that?

Sorry, I've been reading right-wing talking points for too long, but, unfortunately, this is Indiana where right-wing talking points are often mistaken for solid public policy.  It appears that the Indiana General Assembly is perhaps poised to consider passing laws to protect the free exercise of religion...even though the Constitution of the United States already does so.

Redundant.  Stupid.

Of course much of this so-called need to protect religion goes back to the court decision allowing same-sex marriage.  Right-wing culture vultures point to this as the busting of society's seams.  They don't want to have to make the "gay wedding cake" if they don't want to, etc.

Here's my question...the First Amendment to the United States Constitution reads:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
 Where are the protections for those folks that DO NOT want to exercise a religion?  After all, this is who the First Amendment appears to be trying to protect.  It's telling Congress that it cannot establish a religion or prohibit someone from exercising theirs.

Seems to me that these religious folks are getting all the protection under Indiana law.  Not sure that's what our founders intended.

1 comment:

Paul K. Ogden said...

The Indiana is a state Religious Freedom Restoration Act. Congress in 1993 passed a federal Religious Freedom Restoration Act to restore the Sherbert test for interpreting the Free Exercise Clause. That test required that government have a compelling interest when passing laws infringing on religious freedom. The federal RFRA was supported by a wide coalition of liberal, including the ACLU, and conservative groups. It was sponsored by then Rep. Schumer (D-NY), passed the House unanimously and the Senate 97-3. It was signed by Bill Clinton.

The federal RFRA had a section that applied to states. The Supreme Court later upheld the federal RFRA with the exception of the application to states. The Court said federalism prevented that application and that if states wanted the RFRA, they had to pass their own.

Since then nineteen states have passed their own RFRAs. In those states, the Sherbert test is used. Indiana is not one of those nineteen. states. So in Indiana and those other 30 states, the less protective standard of Employment Division v. Smith (religious freedom is not protected if the law is a neutral law of general application) applies which provides much less protection for religious freedom.

While Indiana does pass a lot of redundant laws, this bill is clearly not one of them. It is needed legislation that should have been passed years ago.