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.
Updated: States with Increased Religious Protections
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.)
In addition,
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.
Ahcuah 
Luke 22:35-6 Jesus recommends barefeet, but for me it is not about “pleasing God”, but about bringing present awareness to connection with Creation. In Luke 10:17 the 72 barefooters found demons fleeing before them. Our favorite barefoot saints (St Francis, St John of the Cross, St Teresa of Avila) barefooted to reduce separation, and increase connection. I would venture most barefooters feel connection, but of course would only be protected in Ohio if they did it for religious reasons, like our saints, and the 72 protected from demons.
Bob, how do you think secular humanism would go over?
I believe that the human body and mind are the most complex and advanced technology on the planet. I believe we do not yet fully understand how they work, and we put ourselves at great risk of physical and psychological harm when we artificially interfere with their natural function, as shoes distinctly do to feet. In addition, it holds deep personal meaning to me because I believe the function of our bodies and minds is what ties us all together as a species and an earthly community. Wearing shoes causes me fear and anxiety by contravening what I feel is a necessary human condition for optimal physical and earthly life, and I am only willing to accede to footwear when I personally feel my wellbeing would be compromised more by doing not so.
I believe that feet in full sensory contact with ground while walking and running, natural actions of our bodies, is an indispensable component of physical health. I find it fundamentally important for me to maintain at all times unless my own sense of personal safety is compromised (due to weather, discomfort, or job security), for the irreplaceable benefit I believe it confers upon my sole earthly life. While not enforced upon me by some conscious theistic presence, I believe it is decreed by the fundamental laws of nature and evolution. It could not be replaced by any alternative totem because it is integral to physical human function in normal daily activities, in addition to what symbolic meaning it holds for me.
I.E., being asked to wear shoes interferes with my ability to lead a secular life because of my belief in our individual responsibility for our limited and only earthly existence, in which our physical health and thereby much of our life experience is directly contingent upon our efforts to use our natural body according to its natural design.
Stephanie, this is exactly why a lot of people (ever before the LGBT blowup) did not like RFRAs. They were only available to the religious, leaving atheists and the secular out in the cold, and seeming to give special privileges only to the religious. (On the other hand, so many laws are so stupid that giving anybody a way around the stupid ones may not be a bad thing. 🙂 )
It is not clear to me whether secular humanism would count. A lot might depend on the judge (as is so true in a lot of other cases). In the case I cited above, we saw that “spiritual humanism” didn’t work for that one prison guard. (On the other hand, the Ohio Constitution talks about serving Almighty God.) The way you described it above for you, I would not be optimistic (but would love to be wrong).
On the gripping hand, there was a recent court case, American Humanist Association v. United States, in which secular humanism was declared a religion for purposes of the First Amendment, so a prisoner could have a study group. It’s not clear whether that would apply to an RFRA which really specifies protecting religion. Don’t forget that RFRAs are additional rights beyond the First Amendment, so the First Amendment jurisprudence would not necessarily apply.
However, if one were in the position to invoke an RFRA and was not too specific about one’s beliefs, it might work (as long as it didn’t have to go to court).
All of this overlooks one thing. While they may look clean and such, the health department is taking in to consideration what might be tracked in on the bottom of the feet. This could be anything from any place and for places that prepare food in front of customers this can be a general health danger as unless one is willing to scrub there feet before entering such a place, there is no way to know what is tracked in that could spread to food and create health problems for everyone there. NOTE this is not discrimination against ones religion or the like. It is simply common sense, and there are tons of religions out there that acknowledge this and accept it as part of there lives. They accept that for the community health issue that some things have to be done that might be against the religion. And yes every one of them has some kind of concern that they accept. As a example jewish people are supposed to have long thick beards, all the time However the US Health department says no to it, as loose hair in food and what might be aught in faical hair like that might be a issue. The jewish people understand and accept this and understand it is not against there relgion in this slightest. They even work with it on a daily basis. ANd others like buddists, muslims, hindu, even natice americans and those still practicing aztec belifes do the same. It’s a world wide thing, not just local to one country. So with al of this, I can see this new age religion as it is one, that supports bare feet, being able to acknowledge this fact and be willing to understand that such rules and such are not ment to insult thiers or anyone elses religion. So unless medical evididance can be prooven in court that bare feet are not a issue, there is no way to win any court case to allow bare feet anyplace in the long run where it might be a issue. Also I looked at the related court cases the guy behind this site lost over and over again. This here that I mentioned is the one detail he is overlooking and needs to be addressed if he is ever to win a court case where bare feet would be welcome in places he has been told to leave from. Let alone anyone else. Now before you think I am noting this as hate, please note i am not, only tring to help by pointing out information that has not been noted here. Nothing else.
Typhoon, it is common sense that feet track in things that shoes don’t? When people mostly shower daily and wash their shoes never? Hair can get in food, so you wear a hair net. Feet or shoes don’t get in food, that doesn’t even make sense. Do you live in an area where people frequently put gloves on their feet and use them to prepare your food?? Because if not this just sounds like the absurd rantings of somebody living in a fantasy world.
And just so you know, the health department doesn’t ban bare feet for food workers or customers in any setting whatsoever, nor do they have any reason to, shoes are always more dirty than feet.
The *only* bans on bare feet come are on workers and come from OSHA, and only in situations where they might pose a danger to the worker, not so the worker doesn’t pose a danger.