The U.S. Constitution, the Maine Constitution and the Maine Human Rights Act all provide strong protections for the freedom to practice religion. But are they strong enough?
Not according to state Sen. David Burns, R-Whiting, whose bill, L.D. 1428, would give recourse to Mainers who believe a state law is in any way infringing on their religious freedom, and put the burden on the state to justify that infringement.
But the burden should be on Burns and other supporters of the bill to show that the laws now in place are not sufficient in protecting religious freedom. So far, they have not done that. In fact, there is ample evidence that the bill would not stifle discrimination, but encourage it.
The bill, which is similar to others that have been proposed to varying degrees of success in other states, is part of a national effort to turn back the clock on the country’s religious freedom laws. Until a 1990 Supreme Court decision, states had to show that laws imposing a “substantial” burden on religious freedom did so in pursuit of a “compelling” public interest, such as safety or health, and that the burden was the least restrictive way to meet that interest.
The 1990 decision, however, said states no longer had to prove that justification unless the law singled out a specific religion. The Religious Freedom Restoration Act passed in 1993 ultimately restored that necessity for federal law, but another court decision left state changes up to the states themselves.
A number of states have effectively reverted to the pre-1990 standard. Others have gone further. The proposal in front of the Legislature, for instance, removes the need for the burden to be “substantial.” It also very broadly defines “burden” as any action that “directly or indirectly” impedes a person’s religious freedom.
That seems to open the way for the refusal to provide health care, lodging or any number of other services under the guise of practicing religion. Under a similar law in Texas, a public bus driver filed a lawsuit after he was fired for refusing to drop off a passenger at a Planned Parenthood along his route, arguing that the organization provided abortions, a procedure that went against his religion.
It’s also unclear how the bill would interact with contradicting Maine laws. For instance, could a landlord refuse on religious grounds to rent an apartment to a same-sex couple, or would that be in violation of the Maine Human Rights Act?
According to Burns, incidents that show that religion needs additional protection include the elimination of a blessing from a South Bristol elementary school’s annual boat-launching ceremony as well as the removal of a Christmas tree from a memorial in a public park in Bar Harbor.
Some may see this as political correctness run amok, but in both cases the First Amendment was being violated, and in neither case was someone’s right to practice their religion impeded. Prohibiting someone from saying a prayer at a public school ceremony is not the same as prohibiting that person from saying a prayer altogether.
As it is written now, the bill would solve a problem that doesn’t exist while likely creating many others.