I keep dwelling on Religious Freedom Restoration Acts (RFRAs) because I think that they could be an effective tool for barefooters to make barefooting more acceptable. If we can go into places where there are even rules against it, and nothing bad happens, then maybe we might change some minds.
But there are also states without RFRAs in which such religious claims can be made.
I’ve written a lot about RFRAs, most recently in Bearing False Witness. That blog entry also has a list of my other entries in case you missed them and wanted to dig deeper. There are quite a few barefooters who have religious reasons, or for whom their religion is flavored by going barefoot. They may be able to continue to go barefoot in places that they might not otherwise be allowed to.
I should also make clear that a religious need to go barefoot need not be a particular sacrament of your general religion (by which I mean a large sect, like, for instance, the Methodists, or Druids). As long as you have a genuine religious practice that God (or Providence, or the Cosmic Force) wants you to go barefoot, you are probably covered. It just has to be “religious” in nature.
Keep in mind that RFRAs apply only to governments, and in particular, to the governments that have enacted the RFRA. The federal RFRA only applies to parts of the federal government (but that includes administrative bodies and courts, for instance). State RFRAs apply to the governments within those states, which include city and county governments, and administrative bodies in those states too. Yes, it should also include public libraries.
In the past, I’ve only covered the states that have had RFRAs passed by their state legislators. But if you’ve looked carefully at my map of states with RFRAs, you may have noticed another category.
There are quite a few states that have the equivalent of an RFRA due to a court interpretation of a state constitution. (You cannot really call it an RFRA, because the “A” stands for an Act of the legislature, and these are court decisions instead. But I will still use RFRA for these conditions, too.)
You will notice Ohio as one of those states. And since I live in Ohio, I will take a closer look at Ohio’s court cases on Religious Freedom.
Ohio made an abortive attempt to create an RFRA a few years ago. At that time, though, all the drama regarding the Arizona bill made the Ohio legislators withdraw their bill.
And then we got the recent Indiana flap. That caused Ohio Governor John Kasich to comment (in the April 10 newspapers) that “I think we’re doing fine in Ohio. Everbody’s opinion has to be respected in all of this and we have to strike a balance…I don’t see a reason to do any more.”
Nonetheless, there will probably be another attempt to create an RFRA for Ohio. Another recent story (April 11) noted that Representative Maag was seeking co-sponsors for some sort of RFRA. It was not clear just what kind of RFRA it was. (There are, in my view, more benign RFRAs that mainly prevent the governments from enforcing ridiculous laws that probably shouldn’t be laws in the first place, like restricting bare feet, and less benign ones that try to discriminate against the LGBT community under the guise of religious freedom.) At this time it is not clear just when that bill will be introduced or how well it will do in the legislature. For obvious reasons, these are very controversial bills these days.
The thing is, as I already mentioned, religious freedom is already protected by the Ohio Constitution, as interpreted by the Ohio Supreme Court. You never hear about this—I suspect nobody (or at least, very few people) even know about it.
The case was Humphrey v. Lane, 2000-Ohio-435, from the year 2000.
Wendall Humphrey was a Native American whose related religious belief included not cutting his hair. His employer, the Ohio Department of Corrections (Humphrey was a prison guard), had a rule against long hair on men.
In decided the case, the Ohio Supreme Court looked at the Ohio Constitution, which has in its bill of rights the following:
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. No religious test shall be required, as a qualification for office, nor shall any person be incompetent to be a witness on account of his religious belief; but nothing herein shall be construed to dispense with oaths and affirmations. Religion, morality, and knowledge, however, being essential to good government, it shall be the duty of the general assembly to pass suitable laws to protect every religious denomination in the peaceable enjoyment of its own mode of public worship, and to encourage schools and the means of instruction.
I’ve highlighted the portions relevant to this discussion.
The language in the Ohio Constitution is much more restrictive on the government that the language in the United States Constitution. As the court’s ruling says, “The Ohio Constitution allows no law that even interferes with the rights of conscience.” (Emphasis in the original.)
In addition, the Ohio Constitution is, as it says in the ruling, “a document of independent force. . . . As long as state courts provide at least as much protection as the United States Supreme Court has provided in its interpretation of the federal Bill of Rights, state courts are unrestricted in according greater civil liberties and protections to individuals and groups.”
So, because of that, the Ohio Supreme Court ruled that, quoting from the Syllabus,
the standard for reviewing a generally applicable, religion-neutral state regulation that allegedly violates a person’s right to free exercise of religion is whether the regulation serves a compelling state interest and is the least restrictive means of furthering that interest.
That is essentially an RFRA.
Subsequent court rulings have been a mixed bag. These additional cases have only risen to the appellate court level. They have found that, for an Amish man who did want to install a septic system, the state had a compelling interest in not polluting the streams.
There was also a case from 2007 in which a prisoner on supervised release (a residential treatment program) was ordered back to prison because he would not cut his hair, again claiming a Native American religion. See State v. Whitaker.
This case was more interesting because Whitaker offered no proof that he was actually Native American, so the trial court said that it didn’t count. However, you don’t need to be born Methodist to be a Methodist. Similarly, you don’t need to be born Native American to accept a Native American religion.
This particular ruling had a lot of other good commentary in upholding the claim of Whitaker.
The trial court cited no authority, and our searches reveal no authority, in support of its conclusion that appellant is required to prove a racial or ethnic heritage in order to sincerely hold his religious beliefs.
* * *
The only question which the trial court should have addressed was whether appellant’s religious beliefs were sincerely held. On this point, courts must be cautious in attempting to separate real from fictitious religious beliefs. That is, courts should not inquire into the truth or falsity of the religious tenets asserted. Courts may, however, inquire as to whether the religious practice is optional or a matter of personal choice, or whether it is a central tenet of the religion. While the truth of a belief is not open to question, there remains the significant question whether it is truly held.
(In order to make this more readable, I’ve cheated a bit and removed internal citations, as well as when the ruling is quoting other court cases.)
The sincerity of a person’s religious belief also does not hinge on how devout the person has been in the past. On cross-examination, the prosecutor asked appellant whether drinking was a part of his religious beliefs; appellant was intoxicated at the time he committed assault. Appellant replied that he had not drunk alcohol in over 14 years, and he recognized that his lapse was against his religious beliefs. The prosecutor’s question was completely irrelevant; it was akin to asking a Christian whether committing a sin is part of their religious belief, and then finding that, if the person admitted to having sinned, the person was not Christian.
Relating this to barefooters, just because sometimes you accede to society’s demands and wear shoes does not mean that you are precluded from having a sincerely-held religious belief. Whitaker won his case.
But there have been losses, too. One person, Nick Trikilis, refused to have a cheek swab done to determine paternity. He claimed a religion of “Spiritual Individualism”. The appellate court in that accepted the religious claim, but said that the state had a compelling interest in establishing paternity (so the child is properly supported) and that doing a cheek swab was incredibly minimal. So they allowed it.
Another loss is more disturbing to me. In Luken v. Brigano, another prison employee refused to cut his hair. This time, the claim was that
in accordance with his spiritual beliefs, appellant [Luken] stopped cutting his hair. Appellant maintains that his spiritual beliefs are “non-theistic,” and that he has identified his hair as a spiritual “totem.” Appellant claims that he does not cut his hair, because it symbolizes his spiritual development and serves as a reminder that he must “live simply and avoid excessive pride.” Appellant states that he has voluntarily cut his hair only once since 1980, which he claims was for charity.
The appellate court here ruled that merely having non-theistic spiritual beliefs was not enough. The Ohio Constitution does not protect any general “right of conscience”; it only protects religious beliefs:
We find that appellant’s beliefs, while sincerely held, do not rise to the level of religion as required to afford protection under the Ohio Constitution. Appellant testified in a deposition that his beliefs are “non-theistic,” which he defines as the belief that morality and conscience have to be an individual choice, without reliance on the authority of a deistic figure or figures. He describes his belief system as an “obligation of individual conscience.” His choice of his hair as his “totem” was a personal choice, and he acknowledged that his belief system allows him to choose something else as his totem. A review of appellant’s deposition and his “Statement of My Spiritual Development” reveals that appellant’s beliefs are based on his own personal and philosophical choices. Thus, we find that appellant’s beliefs do not rise to the level of “religious beliefs” required to fall under the protection of the Ohio Constitution.
So, in deciding whether a barefooter is protected by the Ohio Constitution, it depends on whether they go barefoot to please God (or Providence, or the Cosmic Force). A mere sincerely-held non-theistic belief just doesn’t cut it.
If a barefooter’s court case came up regarding this, how would it be decided? To tell you the truth, I’ve lost faith in the objectivity of the Ohio court system. I’d worry that some judge would look for loopholes: “oh, that belief is not sufficiently held.” Or that somehow the state has a compelling interest that we don’t get boo-boos on our soles.
But it is nice to know that this non-RFRA RFRA might be available to use.
And it would always be fun to get the popcorn and watch the shenanigans as it worked its way through the court system.