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Opinion: What would Utah’s version of the Religious Freedom Restoration Act look like?

This bill would create a strong framework to deal with unforeseen religious freedom conflicts

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Michelle Budge, Deseret News

The Utah Legislature is considering a state version of the federal Religious Freedom Restoration Act in the form of SB150, sponsored by Sen. Todd Weiler. Lawmakers should enact this legislation because it will create a strong framework to deal with unforeseen religious freedom conflicts, and criticisms of the Religious Freedom Restoration Act have not materialized in practice.

In 2019, Sutherland Institute hosted a conference of religious freedom scholars in Salt Lake City. One of the presentations, by Howard Slugh of the Jewish Coalition for Religious Liberty, ought to shape the way we view religious freedom conflicts. He explained that we need comprehensive legal protections of religious exercise because government officials are often unaware of religious practices that their policies might burden.

This is particularly true of religious minorities whose beliefs and practices are often unfamiliar. In a companion essay, Slugh and co-author Josh Hammer gave examples, including religious views guiding diet, clothing, physical appearance (e.g., beards) and buildings.

Of course, it is always ideal for legislators to avoid conflicts by ensuring laws do not infringe on religious practice. A recently enacted Utah law allowing students to wear religious apparel in schools is a good example of this. But that ideal is not always possible, so nearly half of the states — following the example of the national government — have enacted RFRA laws similar to the one that SB150 would establish.

These laws state that government actions must not impose a “substantial burden” on the religious exercise of a religious organization or person of faith except when doing so is necessary to ensure a “compelling government interest” is protected (e.g., protecting the life, health or safety of other people). If the government asserts that a burden on a religious practice is compelling, it will also have to show that its restriction on religious exercise is not unnecessarily broad.

In other words, the state can’t limit religious exercise unless it is clearly necessary, and then only to the degree necessary. If there is a way to avoid creating the burden, the state must do so.

Congress enacted the national law in 1993, which applies only to the federal government, with bipartisan support. But some who previously supported the federal religious freedom law no longer do. Their concern, also expressed in testimony on SB150 earlier this week, is that “the law could allow individuals to claim their religious beliefs give them the right to ignore laws.”

SB150 clearly and strongly addresses that possibility by ensuring that any compelling governmental purpose may still burden a particular religious practice. Protecting children or spouses from abuse or preventing illegal discrimination are clearly compelling interests that would justify limiting harmful religious practices.

Examples given of how protecting religious exercise “harms” anti-discrimination laws are sometimes more perceived than real. They involve situations where a government claims it can only protect third parties against discrimination by compelling people of faith or religious organizations to endorse messages with which they disagree, in violation of the Free Speech clause, or ignoring an alternative policy that would avoid the religious conflict altogether. In neither of these situations would an RFRA limit protections from discrimination.

SB150 will create a strong framework for addressing unforeseen religious freedom conflicts when they arise, while still ensuring that the state can enforce laws that are necessary to protect the lives, health and rights of everyone. It gives clear direction to government entities — so that many potential conflicts can be avoided — and to state courts about how to resolve the conflicts if they do arise. This means it will likely prevent unfair burdens on religious practice altogether and make their redress simpler when the conflict cannot be avoided.

William C. Duncan is the constitutional law and religious freedom fellow at Sutherland Institute.