By David Bossie
The Religious Freedom Restoration Act (“RFRA”) signed into law by Governor Mike Pence is hardly new legislation. It’s modeled on a federal law that was enacted in 1993. The public outcry Indiana’s new law has inspired is as misleading as it is misguided.
In 1993 then-Congressman Charles Schumer sponsored legislation to apply a higher standard of scrutiny to actions by the government that may impact religious practices. The companion bill was carried by the late Senator Edward Kennedy. These liberal leaders were part of a broad, bi-partisan coalition of legislators and leaders who supported the legislation which eventually passed the House of Representatives on a voice vote, and passed the Senate with a resounding 97 votes. To say this legislation was not controversial is an understatement.
Congress passed the original RFRA in response to a 1990 Supreme Court decision in Employment Division v. Smith which crafted a new legal test for whether laws that impact religious practices would be upheld. Oftentimes when constitutional rights may be infringed upon the court system applies a legal construct known as “strict scrutiny” to determine whether the action or legislation meets constitutional muster. This is the highest level of scrutiny that the courts may apply, and poses the biggest hurdle for those wishing to restrict constitutional rights or principles. In Smith the Court applied a lesser standard, thus allowing laws which impacted Native Americans right to practice their religion to remain intact. Regardless of your beliefs, it is a core tenant of our American way of life that you should be free to worship as you see fit, without any intervention from the government.
Passing legislation to correct this anomaly in constitutional jurisprudence was a no-brainer. Then Vice President Al Gore identified numerous instances of the government restricting the freedom of worship: “Those who want churches close to where they live have seen churches zoned out of residential areas. Those who want the freedom to design their churches have seen local governments dictate the configuration of their building.” He even highlighted the fact that “Those whose religion forbids autopsies have been subjected to mandatory autopsies.” Instances of government prohibiting the free exercise of religion must be met with a swift and overwhelming rebuke. The passage of RFRA did just that. Today we still see heavy handed attempts by the government to interfere with religious convictions and practices. One prominent example is the Obamacare contraception mandate.
Since the federal passage of RFRA, 20 states had adopted similar provisions. Indiana brings that number to 21. Even President Obama’s home state of Illinois enacted a state-based version of RFRA, which then State Senator Obama voted for.
Today, liberals are up in arms over Indiana’s passage of similar legislation. Let’s be clear, the bill passed by the Indiana legislature and signed into law by Governor Mike Pence closely tracks the federal legislation that was championed by Charles Schumer and Ted Kennedy. In the twenty years since RFRA’s passage the only thing that has changed is politics. Liberals are seeking to use Indiana’s passage of RFRA as a thinly veiled attack on a conservative leader, Governor Mike Pence. They seek to demagogue and distort an idea that once all Americans agreed upon, government should not have any say on how we practice our faith.
At the ceremony where President Bill Clinton signed the federal Religious Freedom Restoration Act into law he remarked: “The power of God is such that even in the legislative process miracles can happen." In 1993 a broad coalition of legislators from across the political spectrum stood together in defense of religious freedom and constitutional principles. Sadly, Indiana’s recent embrace of RFRA was marked with hatred, division, and venomous speech from those on the Left who are more focused on political grandstanding than protecting fundamental rights and religious freedoms.