What with all the press coverage of the Arizona “freedom to discriminate against gays if you are that sort of religious” bill, you might be surprised to hear that it was in reality a fairly minor tweak to already-existing Arizona law. Once the Arizona bill was vetoed, the similar Ohio bill was (at least for now) withdrawn.
The reason the Ohio provisions didn’t intially cause the same flap is because they were hidden in a whole new proposed statute. So while the Ohio bill looked like it could be used by some barefooters, there was more inside it.
I’ve written a fair bit about the Religious Freedom Restoration Act (RFRA) because I think it is something that barefooters, or at least some barefooters, might be able to use to provide access to governmental buildings or locations that would otherwise try to keep them out. There is both a federal RFRA (Part 1 and Part 2) and State RFRAs. Currently, there is both the federal RFRA, and 18 states have their own RFRA.
Arizona already has its own RFRA, which you can see here (this is the first section; keep hitting “Next Document” until you get to 41-1493.04). This has been in effect since 1999.
Ohio does not have its own RFRA (though there is a court ruling, very rarely used, that might have a similar effect). However, an Ohio version was introduced back in December of last year, which I wrote about here. It looked pretty much like most RFRAs, but there were a few subtle differences that I (and, I guess, nobody else) really noticed.
Until . . .
Until the flap over the Arizona bill.
The Arizona bill itself, SB 1062, amended their RFRA. This RFRA was already rather extreme, providing exceptions for people with professional licenses. That is, their professional license would not be taken away for exercising a religious belief (think, e.g., pharmacists). That’s Section 41-1493.04.
So, what was being added?
Here in Ohio the group really pushing the RFRA is Citizens for Community Values. I’ve sparred with them in the past over nudity laws. But their legislative action arm gave us a good look at what was going on. It also really tried to finesse what was going on. On this page, they link to a letter by law professors that tries to say why the Arizona changes are needed. (It was only while comparing Arizona and Ohio and trying to understand why the Ohio bill was withdrawn that I saw exactly what was happening.)
Similar to Arizona’s bill, Ohio HB 376 is modeled on and directly quotes the bipartisan federal Religious Freedom Restoration Act (RFRA) that was signed into law by President Clinton in 1993.
Under the City of Boerne v. Flores (1997), the U.S. Supreme Court instructed states to pass their own RFRA’s. The Arizona law was initiated to address two ambiguities common to current RFRA’s:
1. It clarifies individuals’ freedom from state or local violation of their religious expression.
2. It clarifies that “people are covered when sued by a private citizen invoking state or local law to demand that they violate their religion.”
The First Amendment demands tolerance for all beliefs; it’s past time in Ohio for Religious Freedom to be restored and allow people the freedom to believe and practice their faith.
First, they keep harping about how similar Ohio’s bill (and Arizona’s bill) is to the federal RFRA. Yeah, but they gloss over the substantive differences.
And they call those substantive differences “ambiguities”.
If you look at the Arizona bill, what they add to the Arizona RFRA is, first of all, a definition of “person” that includes all corporations. That means businesses, of all sorts (page 2, lines 19-21; if you go to read the bill, text to be deleted from the existing statute shows up in red with a line through it, and text to be added shows up in blue and capitalized). This allows a business to have religious beliefs.
They also add a definition of “state action”. In other RFRAs, “state action” meant actual actions by the state or government. In the revised Arizona RFRA, language would have been added saying that state action includes “the implementation or application of any law.” (page 3, lines 27-31.) This is where their “ambiguity” supposedly comes in. You see, that insures that anti-discrimination laws are now included under “state action.” Under what would have been the new law, it would have been “state action” for the state to implement or apply the anti-discrimination laws against somebody’s religious beliefs. Of course, while they were targeting gays, it could be used (and has been in the past) against blacks or women, too.
Finally, the law would have added one more provision, regarding judicial relief (that is, the kind of lawsuits that can be filed). The existing law says that you can sue the government involved (“obtain appropriate relief against a government”). What would have been the new language would have allowed a lawsuit “regardless of whether the government is a party to the proceeding.” That is the provision that would give the business standing to assert their religious defense to a claim of anti-gay (or anti-black, or anti-woman, or anti-Moslem, or anti-Jewish) discrimination.
Why is that there? Because of the New Mexico lawsuit that you may be familiar with: Elane Photography v. Willock. This is the case in which the wedding photography business refused to photograph the wedding of two gay women. New Mexico has its own state RFRA. The New Mexico Supreme Court ruled that it did not apply to the Elane Photography case because the RFRA only applies to government agencies. So, that additional language would have been added to the Arizona law to make sure that the RFRA could be used as a defense.
So now you’ve seen how the people behind Arizona SB 1062 wanted to modify the state’s Religious Freedom Restoration Act to allow people to use religious excuses for all sorts of discrimination. It was obvious and blatant because they were force to change the existing RFRA.
The situation in Ohio was different. It was a whole new RFRA, so the tricky language could be more-or-less hidden within the whole text. It also meant that the sponsors and proponents could testify about how the bill was “similar” to all the other state RFRAs, and somehow manage to neglest to mention just how it was different.
Once the Arizona bill was defeated, the Ohio bill was “withdrawn”. See, e.g., Bill sponsors agree to scrap Ohio version of Arizona’s controversial religious freedom bill. Well, yes and no. The final paragraph of the story says
Patmon [one of the sponsors] said lawmakers plan to go back to the drawing board to draft tighter language that protects religious freedom without opening the door to discrimination.
But note how CCV portrays the bill in their official response to the withdrawal:
Ohio HB 376 was modeled on and directly quotes the bipartisan federal Religious Freedom Restoration Act (RFRA) that was signed into law by President Clinton in 1993.
The RFRA restored the requirement of strict scrutiny application in religious freedom cases, the same test used by the Supreme Court prior to 1990.
Was Bill Clinton anti-gay when he signed the bill? How about Ted Kennedy, Diane Feinstein, John Kerry, Nancy Pelosi, Harry Reid or any of the other 97 U.S. Senators and 425 U.S. Representatives who almost unanimously voted to pass the federal RFRA to protect basic First Amendment rights of religious freedom of individuals?
Did they pass that bill in hate?
You can see the big difference if you look at the language of HB 376.
Here’s their definition of “state action” (I’ve highlighted the special text):
Section 9.691(D). “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.
And then there is the wording regarding judicial relief:
Section 9.692(B). A person whose exercise of religion has been burdened or is likely to be burdened in violation of this section may assert that violation or impending violation as a claim or defense in a judicial proceeding, regardless of whether the state or a political subdivision of the state is a party to the proceeding. The person asserting that claim or defense may obtain appropriate relief, including relief against the state or a political subdivision of the state. Appropriate relief includes, but is not limited to, injunctive relief, declaratory relief, compensatory damages, and the recovery of costs and reasonable attorney’s fees.
Remove those two highlighted texts, and it is quite similar to the federal RFRA. Include them, and it becomes what Arizona tried to do (but not as overtly).
I have no particular objections to an Ohio Religious Freedoms Restoration Act. It, like the other acts, seems to exclude the non-religious (which is a big problem), but it also seems to be able to encompass the spirituality of barefooters (if they are so inclined). But what CCV was trying to do was sneak one in. Interestingly, none of the proponent testimony before the Ohio House Judiciary Committee mentioned those little extras—they just focused on the similarity with the federal RFRA.
I suspect the “withdrawal” was just a strategic retreat. Maybe CCV will overreach again and try to get their extra language there. Or maybe they will decide, as a strategic decision, to go with language that really is similar to the federal RFRA and those of the 18 states with their own.
All we can do now is wait and see.