While I was at the Ohio Statehouse on Wednesday, tiptoeing through getting a waiver for the day from their shoe rule, the Ohio General Assembly initiated an action that could unintentionally wipe it away.
So I am chortling.
You see, a Religious Freedom Restoration Act was introduced, House Bill 376. As it is currently written, it’s a particularly strong one. The juicy part, in Section 9.692, says
(A) State action or an action by any person based on state action shall not burden a person’s right to exercise of religion, even if the burden results from a rule of general applicability, unless it is demonstrated that applying the burden to that person’s exercise of religion in that particular instance is both of the following:
(1) Essential to further a compelling governmental interest;
(2) The least restrictive means of furthering that compelling governmental interest.
Actually, though, the part that makes it strong is the definitions part, Section 9.691. There, a burden is defined.
(A) “Burden” means any action that directly or indirectly constrains, inhibits, curtails, or denies the exercise of religion by any person or compels any action contrary to a person’s exercise of religion. “Burden” includes, but is not limited to, withholding benefits, assessing criminal, civil, or administrative penalties, or exclusion from governmental programs or access to governmental facilities.
In regards to the Statehouse, I would think that would not only allow one barefoot in the Statehouse (with a sufficient religious belief), but it would also remove the need to get a waiver—getting the waiver really is a burden that “indirectly constrains” doing so. If nothing else, we’ve seen that it puts a one-day delay on being able to exercise that particular freedom of religion.
Obviously, it would also apply to libraries, my bane.
Another definition is for what a compelling interest is.
(B) “Compelling governmental interest” means a governmental interest of the highest magnitude that cannot otherwise be achieved without burdening the exercise of religion.
This works to the advantage of a religious barefooter in that none of the excuses used could possibly meet that standard. Additionally, in these sorts of situations, if a government interest really is of the highest magnitude, it does not allow selective enforcement of that interest. If they really think that footwear choice impacts a compelling interest, then they would have to regulate all footwear choices.
The definition for exercising religion is also strong and in favor of a religious barefooter.
(C) “Exercise of religion” means the practice or observance of religion. “Exercise of religion” includes, but is not limited to, the ability to act or the refusal to act in a manner that is substantially motivated by one’s sincerely held religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.
Notice that the exercise of religion need not be central to a larger system of religious belief. That means, I would think, that if you are Catholic and make a vow of barefootedness, that would count.
And the definition for state action is also great fun.
“State action” means the implementation or application of any law, including, but not limited to, state and local laws, ordinances, rules, regulations, and policies, whether statutory or otherwise, or any other action by the state, a political subdivision of the state, an instrumentality of the state or political subdivision of the state, or a public official that is authorized by law in the state.
That says it even applies to pesky things like rules made by library boards of trustees, or a Statehouse board.
I have no idea whether something like this would pass the Ohio General Assembly. In the House there are currently 60 Republicans (out of 99) and in the Senate there are 23 (out of 33). They’re a pretty conservative bunch, and they’ve generally ignored the Democrats. That suggests it has a possibility.
On the other hand, Wisconsin is also pretty conservative, and they’ve had a RFRA Amendment to their Constitution, SJR 38, introduced this past May, that so far has only managed to get a single public hearing.
I really don’t think the legislators know how such a law would affect things. From what I’ve seen elsewhere, it usually seems to apply in prisons, or related to jobs. I doubt they’ve considered, or if it will even come up, how it might affect shoe rules. According to a newspaper article in the Columbus Dispatch, Bill aims to let praying, Jesus back in Ohio schools, they seem to think it will allow them to put back up in the public schools a bunch of portraits of Jesus. As far as I can tell, that is one thing is will not do. Portraits in those situations are governed by the Federal Constitution, and no state law can possibly trump that.
In my blog entry on State RFRAs, I noted that Ohio already has something similar to an RFRA, based on the Ohio Supreme Court decision, Humphrey v. Lane, 2000-Ohio-435, 89 Ohio St.3d 62, 728 N.E.2d 1039 (Ohio 05/24/2000). If this bill were enacted, it would make challenges much easier, and in fact would probably obviate the need for any sort of lawsuit (at least when it came to a shoe rule). Just threatening to invoke it would probably make a state actor fold. The bill is also a much stronger statement than what the Ohio Supreme Court ruled.
When it comes to religious expression, I think being able to ignore a state-related barefoot rule would pretty much be a slam dunk. It helps that Discalceation has a pretty long religious tradition, in a bunch of different religions. If we were instead trying to remove offensive odor rules because we were advocating smearing our bodies with sauteed garlic, I suspect it would be harder to make a religious case. But the long-existing traditions associated with bare feet would make it pretty easy to justify a religious belief to go barefoot.
It will be interesting to see how this bill proceeds.
Just nobody tell the Statehouse or any libraries what it might do.