Kentucky Legislature Passes Religious Freedom Restoration Measure

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On March 11, 2013, the Kentucky Legislature has passed a measure (HB 279) which will  prevent  the state government from substantially burdening an individual's freedom of religion. The bill is on its way to Gov. Steve Beshear for signature.

The bill states:

Government shall not substantially burden a person's freedom of religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A �burden' shall include indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities."

Despite claims from civil rights groups that the legislation could lead to discrimination against minorities, proponents argue that the bill will simply restore the legal standard that prevented the state government from infringing on a person's religious freedom that was changed in October 2012 in a Kentucky Supreme Court decision. The case involved an Amish group, the Old Order Swartzentruber Amish, whose members were jailed for several days after refusing to put orange safety triangles on their horse-drawn buggies for modesty reasons, the court had ruled that all the state had to do was prove that (1) the law had a rational purpose, in this case road safety, and was (2) generally applicable to everyone who drove a slow-moving vehicle. If the state met those two requirements, the state would not need to make further efforts to accommodate religious beliefs and could penalize and even incarcerate offenders.

Although lower courts had found reflective tape was not the standard orange triangle and was not as safe, the General Assembly later passed a law that would accommodate the Amish group by allowing them to use reflective tape instead of the triangles. Under this process, one would expect that the legislature would need to pass legislation to accommodate for any religious beliefs that were at variance with generally applicable law, a task that the legislature is apparently trying to avoid in passing HB 279.

This bill will require the government to demonstrate that if a person has a (1) sincerely held religious belief and(2) a law substantially burdens that religious practice, the government must (1) have "clear and convincing evidence" of a compelling governmental interest, and (2) demonstrate that it used the least restrictive means to achieve its purpose before the rights of freedom of religion could be burdened. In other words, the government of Kentucky will need to look for ways to accommodate religious beliefs before throwing religious people in jail.

The Kentucky bill is the latest in a string of efforts to pass state-level and federal legislation that will repair the damage done in the U.S. Supreme Court case of Employment Division v. Smith (1990) which removed the compelling governmental interest test in favor of the rational basis test, and limited the effect of the free exercise clause. This bill closely follows the language of the Religious Freedom Restoration Act (RFRA) that was passed by Congress in 1993, which the  Supreme Court found only applied to federal actions.

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Track the Progress of HB 279 here.

Read the Kentucky Supreme Court decision upholding the rational basis test here.