David Fowler President

March 9, 2009

With at least one church, synagogue, or mosque on virtually every corner, you’d think that religious liberty would be safe in Tennessee and respected by our public officials and government employees. But last week a minister in Chattanooga called when some parents complained that the teacher of their elementary school-aged children would not let them read the Bible during their free reading period. And as our other article suggests, there are other threats to the right to the free exercise of our religion pending before our legislators. Will legislators support proposed legislation that would provide protection for us all?

You may ask why a state law is needed in view of the protection offered so clearly by the First Amendment. And that would have been a good question with no good answer prior to 1990. But in 1990, in the case of Employment Division v. Smith, the U.S. Supreme Court decided that, in many types of cases, the First Amendment should only protect religious exercise from laws or regulations that were targeted at religion.

For example, under the Court’s reasoning, a law that forbids Orthodox Jews from wearing yarmulkes on government property would be unconstitutional, as it would be targeting religion. However, if the law were to forbid all people from wearing hats on state property, it would be constitutional—even though the law would require Orthodox Jews to violate either their consciences or the law in order to walk on government property. Because the law is “neutral” toward religion and “generally applicable” to all persons, the First Amendment would no longer apply, despite the very real burden the law placed on a religious minority.

In the face of the U.S. Supreme Court’s retreat, several states have enacted Religious Freedom Protection (or Restoration) Acts, not wanting to wait to see if a liberal state Supreme Court would follow the U.S. Supreme Court’s lead in interpreting their state constitution’s religious guarantees. With Tennesseans having no right to elect their own Supreme Court Justices and having no right to run against an incumbent judge who treads on our religious liberty, a state law that creates a statutory right to the free exercise of religion is imperative.

Fortunately, state Senator Dewayne Bunch (R-Cleveland) and Representative Susan Lynn (R-Mt. Juliet) have filed SB1283/HB1598 that will do just that. This bill is so important, not only for the reasons just stated, but because not every encroachment on religious liberty will come in the form of legislation that citizens can unite against.

For example, the historical practice under Tennessee law of not allowing two unmarried people to adopt was swept away by a 2007 opinion by our state Attorney General. Our legislators did not debate the impact of this change. The people had no voice in it. Consequently Christian adoption agencies that will not participate in such placements because of their religious convictions are prime targets for a discrimination lawsuit and the revocation of their state licenses. That is why we need a law that will “stand in the gap” for us, especially when the legislative process is skirted. And we need it now before our religious liberties are irreparably harmed.

SB1283/HB1598 provides that no state or local government can substantially burden a person’s free exercise of religion unless it demonstrates that application of the burden to the person is:

1. Essential to further a compelling governmental interest; and
   
   
2. The least restrictive means of furthering that compelling governmental interest.

This standard is nothing more that what the U.S. Supreme Court, prior to 1990, used to require of the government.

Ironically, the judicially fabricated right to abortion gets this level of protection under our state constitution. Should not our clearly spelled out right to practice our religion be protected at least as well?