A good and balanced law
Many of you likely watched the scene unfold in Indiana
last month where supporters of religious freedom sought to pass a fairly simple
law called the Religious Freedom Restoration Act (RFRA).
The scene was eerily similar to what played out here in
Arizona with the CAP-supported SB 1062. Ignoring the facts, opponents of
religious freedom falsely claimed that the bill would allow individuals to have
a license to do pretty much anything, all in the name of their free exercise of
religion. Or in other words, they wrongly tried to say religious freedom would
become the equivalent of Monopoly’s “Get Out of Jail Free Card.”
Yet what was lost in the debate, both here in Arizona and
in Indiana is the reality of how these laws actually operate in a court-setting
and in real life. They don’t provide a license to do whatever illegal activity
somebody wants to do. Rather, they provide the court with a well-established
and longstanding legal balancing test for analyzing competing interests.
To provide some background, Arizona has had a
state-version of RFRA since 1999, and a nearly identical federal law has been
in place since 1993. More than 20 states also have state RFRAs.
In a nutshell, RFRA ensures the government cannot force someone to violate their religious
convictions unless the government meets a strict legal test. For the strict
legal test, the government must show it has a really good reason for the law
and that the law is narrowly tailored to achieve that objective. If the
government does that, then the RFRA defense fails and the government law or
Although Indiana’s original version of RFRA was heavily
amended after big business bullied the governor and legislature,
the remaining law is still set to take effect on July 1, 2015.
This brings us to a recent story out of Indiana and a
perfect example of how RFRA works. Calling his newly formed church the First
Church of Cannabis, founder
Bill Levin plans to break the law and openly smoke marijuana. If
he is cited or arrested, he says he will claim Indiana’s RFRA for protection.
Unfortunately for Mr. Levin, this same ploy was attempted
in Arizona already, and Arizona’s RFRA operated just like it’s supposed to.
In 2005, Danny Hardesty was arrested for possession of
marijuana, and in court he claimed that the use of marijuana was a sacrament of
his church, the Church of Cognizance. This case reached the Arizona Supreme
Court in 2009, and in a
unanimous ruling the Court ruled against Hardesty.
Even assuming Hardesty had a truly sincere religious
belief to smoke marijuana, the Court found that the government has a good
reason to prohibit marijuana use (the fact that it poses a real threat to
individual health and social welfare, in addition to the public safety concern
posed by unlimited use, particularly by those driving motor vehicles), and that
“no less restrictive alternative [ ] would serve the State’s compelling public
safety interests and still excuse the conduct for which Hardesty was tried and
So there you go, RFRA is not a “Get Out of Jail Free Card,”
and it does not provide a license to do whatever illegal activity someone
wants. Rather, it is a time-tested and just law that allows for courts to
acknowledge when the government overreaches and burdens someone’s free exercise
of religion, and to balance that against the reasons for the government action.
Please watch for the launch of the 3rd edition of The Policy Pages later this fall, which
will include a brief devoted solely to explaining how laws like the Religious
Freedom Restoration Act work.
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