Saturday, March 8, 2014
By Jeremy Dys
PLANO, Texas — Lawyers and politicians are infamous for parsing words. But one word shouldn’t stop Maine legislators from passing the state’s proposed “Act to Preserve Religious Freedom” (L.D. 1428). That word is “burden.”
Jeremy Dys is senior counsel at the Liberty Institute, an advocacy and legal defense organization in Plano, Texas. He testified in favor of L.D. 1428 last week in Augusta at the Judiciary Committee’s public hearing on the bill.
L.D. 1428 simply states, “A government may not burden a person’s exercise of religion ... .”
Yet opponents of L.D. 1428 wrongly contend that unless the legislation puts conditions on the term “burden,” that word alone would instigate a flood of litigation by people who were more miffed than truly burdened in the exercise of their religious freedom.
They needn’t worry.
First, the history of such claims in courts of law clearly demonstrates that they are rarely frivolous. The vast majority show a genuine burden upon religious liberty by the very government charged with protecting it. For example:
• Emma Anderson, an 82-year-old woman, was marched off her Metrorail train by privately employed transit police in Miami last March for the high crime of singing hymns and spirituals in public.
• While giving his commencement speech to his peers last June, Joshua (Texas) High School’s valedictorian, Remington Reimer, had his microphone turned off by the school when he made a religious comment of which they disapproved.
• A pastor named Scott Rainey was forced to submit his prayer to the government for approval before praying at the interment of a veteran in Houston National Cemetery in 2011.
These are representative of “burden” claims – and should soothe all concerns about L.D. 1428. Maine stands on safe ground.
Second, even Webster’s understanding of the word “burden” suggests that more is required than a slight annoyance.
Third, L.D. 1428 takes pains to define “burden,” with no fewer than five distinct explanations to make clear to judge and jury that any claim alleging one’s religious liberty has been burdened must rise above the level of mere discomfort.
Nonetheless, it is a fair question to wonder why the proposal says “burden” rather than “substantial burden,” like the federal Religious Freedom Restoration Act (after which it was modeled). The answer is strikingly simple: “Burden” is the preferred language of the Supreme Court of the United States.
In 1981, in the case of Thomas v. Review Board, the high court explained how government would unconstitutionally burden religious liberty:
“Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.”
Thomas had been settled law for well over a decade by the time the federal Religious Freedom Restoration Act was decided, so there was no need to insert a definition in the law.
Instead, the drafters chose to reflect what at least a decade’s worth of jurisprudence had already made clear to federal courts by adding, “substantial” to qualify “burden” in federal law. Of course you see the phrase “substantial pressure” in the language by the court in Thomas, but its use only gives certain clarity to what constitutes a “burden upon religion.”
One who carefully reads both Thomas and the proposed definition of “burden” in L.D. 1428 easily sees that the definition has been very carefully crafted to guide the court’s evaluation of any claims brought to it.
This is a needed law – too needed to be stalled by minutia. Though religious liberty seems secure and the guarantees of the First Amendment obvious, religious liberty is in constant need of defense and security. It should never be compromised without proof that the government has acted with significant restraint for a very compelling reason.
L.D. 1428, “An Act to Preserve Religious Freedom,” is a good and necessary restraint on Maine’s ability to meddle with religion.
— Special to the Press Herald