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Text of Document: Tennessee’s Religious Freedom Restoration Act and Its Stifling Effect on Local Government Police Powers
By Josh Jones
This year the General Assembly passed Public Chapter No. 573 which purports to preserve religious freedom. With such a stated objective, it is not surprising that the legislation passed with little opposition. That is of course because the people of the United States cherish religious freedom and provide constitutional protections for those freedoms surpassing any in history. Upon closer examination, however, Public Chapter No. 573 is less about protecting religious freedom than it is about excusing otherwise unlawful practices when done pursuant to professed piety.
When two Oregon drug counselors tested positive for peyote, were fired and subsequently denied unemployment benefits, no one imagined these events would strike fear in religious organizations nationwide and set the stage for decades of legislative and judicial frenzy. The case was Employment Division v. Smith, where the U.S. Supreme Court ruled that despite the users’ claim that the psychedelic cacti were taken as part of a religious rite, the state nonetheless was justified in denying the benefits based upon a state law of general application. Employment Division v. Smith, 494 U.S. 872 (1990).
The court in Smith also recognized that the state is never justified in passing legislation that directly inhibits the free exercise of religion. However, a believer cannot gain exemption from neutral laws of general applicability based on an indirect curtailment of free exercise. To rule otherwise, the court wisely states, places “the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."Id.
The backlash from Smith resulted in the Religious Freedom Restoration Act (RFRA) 0f 1993. This federal law applied a strict scrutiny test on federal, state and local governmental entities when a petitioner claims a violation of the Free Exercise Clause of the First Amendment. Commonly referred to as the Sherbert Test, strict scrutiny requires a court to determine whether the petitioner’s claim involves a sincere religious belief and whether the government action is a substantial burden on the person’s ability to act on that belief. If those prongs are met the government must then prove that it is acting in furtherance of a compelling state interest and that it has used the least restrictive means to achieve that interest. Sherbert v. Verner, 374 U.S. 398 (1963).
This standard caused difficulties for state and local governments until the law was challenged in Boerne v. Flores. 521 U.S. 507 (1997). In this case, a church was denied a building permit to expand on the basis that the 1923 mission style church building was regulated under a local historic preservation ordinance. The archbishop of the church sued, alleging that his free exercise of religion was burdened by the denial. The court wisely found the RFRA unconstitutional in its application to state and local governments and temporarily things returned to normal. That, however, was not to last.
Religious activists worked nationwide after Borne to enact state RFRAs, legislatively imposing strict scrutiny. This year, Tennessee became the sixteenth state to adopt a RFRA. Tennessee state and local governments will now face an uphill battle in upholding laws of general applicability when someone claiming religious offense cries foul. Other states with RFRAs have seen the unintended consequences of these laws in zoning, public safety and other areas of regulation. I posit just a few examples here.
This July the U.S. Court of Appeals for the Fifth Circuit ruled that a Euless, Texas ordinance prohibiting the sacrifice of animals within the city limits was unconstitutional under the state RFRA. When the Santeria priest brought suit, the city was unable to show that they used the least restrictive means of implementing a compelling state interest. Merced v. City Kasson, et al., WL 2343172 (C.A.5 Tex, 2009).
Last year in the District of Columbia a regulation prohibiting facial hair for firefighters was declared unconstitutional under an RFRA, despite ample evidence showing the danger it can cause. Potter v. Dis. Of Columbia, No. WL 2892685 (D.C. Cir. Sept. 28, 2007). Justice Robertson noted the difficulty in reaching this conclusion as it places courts in the position of having to balance religious liberty against governmental interest, which “is precisely the sort of police power matter that is best entrusted to the politically accountable branches.” Nonetheless that is what an RFRA requires.
Finally, in Barr v. Sinton, also applying the Texas RFRA, the court found a zoning ordinance prohibiting two-halfway houses for ex-convicts was unconstitutional because the facility was proposed by a preacher. Barr v. City of Sinton, No. 06-0074 (Tex. Jun. 19, 2009). Not only did the court find that the city failed to expend all possible alternatives, shockingly the court ruled that zoning enforcement was not a compelling state interest. Had the proprietor of the halfway houses not been a man of the cloth, the city’s ordinance would not have been judged by strict scrutiny. This shows the fundamental unfairness of RFRAs. They judge persons unequally under the law. As Justice Stevens states in his concurrence in Bourne, RFRAs provide “the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment...” Bourne.
The new standard created by the RFRA will undoubtedly create liability for municipal governments. It will also diminish the authority of local governments to regulate land within their jurisdiction through zoning, direct the behavior of on-duty employees and protect the health and safety of its citizens. The full scope of the ramifications is limitless as any action that someone can claim is religious can be used to challenge even the most neutral and prudent law.
Tennessee’s RFRA should worry all local government officials and employees and anyone in the state who values law and order, equal protection and both religious prongs of the First Amendment. If the ability of local governments to regulate dissipates at even the most tenuous claim of religious offense, small sects will be able to hamper rational, safe and publicly-beneficial policy. The beauty of true religious devotion and the good works it inspires is sacred, hence its protection in the First Amendment. However, the assumption that every ecclesiastical entity is always well intentioned is not only unwise, it is unsafe. That, however, is our current lot. So as cities pass new policy, they must be mindful of the heavy burden and possible liability looming over every ordinance they may pass.