State RFRAs

The last two days we’ve looked at the federal Religious Freedom Restoration Act. In Part 1 we saw a bit of history, noted how it ended up applying only to the federal government, and how it started out being ineffective. In Part 2 we saw how the Supreme Court put teeth back into it and then we looked at the components of the Act and how they were applied by the courts.

There is one more piece to this. Many states passed their own Religious Freedom Restoration Acts.

The Religious Freedom Restoration Act passed by Congress only applies to units of the federal government. Thus, its protections to religious barefooters, while quite strong in that context, are rather limited, since it is state and local governments that we probably react with more frequently.

However, after Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 US 872 (1990), many states started passing their own Religious Freedom Restoration Acts. That is still going on, with Kentucky having just passed theirs earlier this year.

As of right now, as far as I can tell, there are 17 states with a Religious Freedom Restoration Act. That includes Alabama, which actually put it into their Constitution.

There are some differences between the state versions and their federal counterpart. Part of that is that sometimes they use difference language; another part of it is that each state Supreme Court might interpret the language a bit differently (though they will undoubtedly look to the U.S. Supreme Court for guidance).

You may recall that the Federal Act say that government may not “substantially burden” the free exercise of religion. That’s what most of the state’s do, too. However, a few leave out the word “substantially”, saying that it simply cannot be “burdened” (at least, not without applying the compelling interest test). When I’ve looked for court cases, though, it doesn’t look as if that really matters.

A few other states say that government cannot “restrict” the free exercise of religion. For instance, here’s what the New Mexico statute says:

28-22-3. Religious freedom protected; exceptions.

A government agency shall not restrict a person’s free exercise of religion unless:

A. the restriction is in the form of a rule of general applicability and does not directly discriminate against religion or among religions; and

B. the application of the restriction to the person is essential to further a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.

I really haven’t found too many state court cases in which governmental actions are challenged under the state’s RFRA. From what I’ve seen, they’ve tended to be a bit weak, just as the federal cases were before the U.S. Supreme Court ruled in O Centro. A lot depends on whether each individual state’s Supreme Court has ruled on such a case.

I should also add that I’ve not seen a single case that is anything near what would be a barefooter’s case. Most of them are related to zoning churches (or other similar things, like a religiously-motivated pre-school), drug use, or prisoner claims. So I have no idea how a court would react to a barefooter claiming a religious right to go barefoot in the face of a governmental prohibition (say, for instance, libraries or transit systems, the two worst governmental offenders).

While there are 17 states with an RFRA, there are more than that with increased protections, however. All states have their own freedom of religion statements in their state Constitutions. In many of those states, their Supreme Court has said that those constitutional provisions provide greater coverage than its federal counterpart.

For instance, in Ohio, here is part of its Bill of Rights:

All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience. No person shall be compelled to attend, erect, or support any place of worship, or maintain any form of worship, against his consent; and no preference shall be given, by law, to any religious society; nor shall any interference with the rights of conscience be permitted.

In Humphrey v. Lane, 2000-Ohio-435, 89 Ohio St.3d 62, 728 N.E.2d 1039 (Ohio 05/24/2000), the Ohio Supreme Court, an American Indian prison guard was allowed to keep his long hair despite a regulation against it.

As the Ohio Supreme Court put it:

The Ohio Constitution allows no law that even interferes with the rights of conscience. The federal Constitution concerns itself with laws that prohibit the free exercise of religion.

     *     *     *

We adhere to the standard long held in Ohio regarding free exercise claims—that the state enactment must serve a compelling state interest and must be the least restrictive means of furthering that interest. That protection applies to direct and indirect encroachments upon religious freedom.

This actually looks pretty strong. However, there aren’t a lot of court cases since then that apply it, so we really don’t know how they might react to a barefoot claim. There are some cases, though, that make clear that, in Ohio at least, it’s not good enough for what one calls a religious practice to be merely “spiritual” or a “way-of-life”. Since the Bill of Rights mentions “Almighty God”, the practice must be in furtherance of that sort of worship.

When you count them all up, more than half the states have some sort of strong religious protection that might be used by a barefooter.

Here’s a map that shows where things stand (as best as I could determine).

States with Increased Religious Protections

I’m still not sure I completely like RFRAs. As I’ve mentioned before, they carve out a special “get-out-of-jail-free” card that applies only to the religiously motivated, and not to, for instance, atheists. If you are an atheist, you’re out of luck. Also, often even “spirituality”, because it is not as well-defined as “religious”, is not good enough.

I also think that they discriminate against those who are not generally outward with their religion. For some people, their religion is an intensely private affair, and to have to share that in order to get this special exemption would be quite distasteful.

And when it comes to barefooting, we shouldn’t have to do this. Rules and regulations requiring footwear are based on myths, misconceptions, and downright governmental arrogance. We shouldn’t have to even consider our religious beliefs to try to get the governments to apply higher scrutiny like the compelling interest test.

Finally, just the fact that the governments will allow these exceptions based on a religious belief demonstrates to me that those laws or regulations shouldn’t be there in the first place. If an exemption to the law doesn’t really matter to society as a whole, then probably the entire law doesn’t really matter at all.

On the other hand, these RFRAs can be a credible threat to governmental entities that insist on maintaining footwear rules. Just mentioning the RFRA might make a government official decide it’s not worth fighting over something as trivial (to them) as bare feet.

But if they don’t go along, your only remedy is to take them to court. So it’s a balancing act.