This week House Bill 376 was introduced in the Ohio legislature. I call it the ‘Jesus Painting Protection Act’ but the formal name is ‘Ohio Religious Freedom Restoration Act’. It creates special rights for the ‘religious’ to avoid any law or act by the state or local governments if it is a ‘burden’ on a person’s religious beliefs. This dangerous law could leave children unprotected from abuse, allow discrimination in areas way beyond just same sex marriage, and allow Sharia Law.
One reason given for the introduction of the bill was the recent removal of Jesus paintings from two public schools here in Ohio.
Here is the text of the bill:
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 9.69, 9.691, and 9.692 of the Revised Code be enacted to read as follows:
Sec. 9.69. Sections 9.69 to 9.692 of the Revised Code shall be known and may be cited as the Ohio Religious Freedom Restoration Act.
Sec. 9.691. As used in sections 9.691 and 9.692 of the Revised Code:
(A) “Burden” means any action that directly or indirectly constrains, inhibits, curtails, or denies the exercise of religion by any person or compels any action contrary to a person’s exercise of religion. “Burden” includes, but is not limited to, withholding benefits, assessing criminal, civil, or administrative penalties, or exclusion from governmental programs or access to governmental facilities.
(B) “Compelling governmental interest” means a governmental interest of the highest magnitude that cannot otherwise be achieved without burdening the exercise of religion.
(C) “Exercise of religion” means the practice or observance of religion. “Exercise of religion” includes, but is not limited to, the ability to act or the refusal to act in a manner that is substantially motivated by one’s sincerely held religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.
(D) “State action” means the implementation or application of any law, including, but not limited to, state and local laws, ordinances, rules, regulations, and policies, whether statutory or otherwise, or any other action by the state, a political subdivision of the state, an instrumentality of the state or political subdivision of the state, or a public official that is authorized by law in the state.
Sec. 9.692. (A) State action or an action by any person based on state action shall not burden a person’s right to exercise of religion, even if the burden results from a rule of general applicability, unless it is demonstrated that applying the burden to that person’s exercise of religion in that particular instance is both of the following:
(1) Essential to further a compelling governmental interest;
(2) The least restrictive means of furthering that compelling governmental interest.
(B) A person whose exercise of religion has been burdened or is likely to be burdened in violation of this section may assert that violation or impending violation as a claim or defense in a judicial proceeding, regardless of whether the state or a political subdivision of the state is a party to the proceeding. The person asserting that claim or defense may obtain appropriate relief, including relief against the state or a political subdivision of the state. Appropriate relief includes, but is not limited to, injunctive relief, declaratory relief, compensatory damages, and the recovery of costs and reasonable attorney’s fees.
From a story in the Columbus Dispatch:
“A portrait of Jesus and prayer could return to public schools if two state representatives convince fellow lawmakers to pass the Ohio Religious Freedom Restoration Act.
Rep. Tim Derickson, a Republican from Oxford and one of the co-sponsors, called the bill introduced this morning “a preventive attempt” to block further encroachment on expression of religious freedom. He cited examples such as prohibition of prayer in schools and public places, zoning issues for churches, and public expression of religious faith, such as wearing crossing and nativity scenes.
Ohio would join 17 other states with such laws on the books.”
Rep. Bill Patmon, D-Cleveland, asked if the law, had it been in affect, would have impacted recent cases where Ohio schools were forced to remove pictures of Jesus, responded, “You would have a better opportunity of keeping Jesus up.”
Of course students wearing crosses isn’t prohibited now so I see this bill really as way to force religion into public schools and allow religious people to ignore laws. The law also uses the generic “religion” so Muslims could use it to establish Sharia Law in their communities.
The real danger in this proposed law is it demands the state interest be “interest of the highest magnitude” yet only requires the state action create a simple “burden”, even indirect, rather than “substantially burden” belief as used in the Federal Religious Freedom Restoration Act. This would have some nasty unintended consequences as Marci A. Hamilton notes about an attempt to pass a law with similar language in North Dakota:
The longer the federal RFRA was in place, the clearer it became that while the law was perhaps well-intentioned, it harbored a dark underside, for under the law, children could be abused and medically neglected simply because those who were harming them or putting them at risk were religious. Residential neighborhoods could be subjected to uses never contemplated when the owners purchased their homes; and religious actors could argue that they were not bound by just about any law governing everyone else.
The North Dakota proposal also introduces a new innovation in the seemingly endless drive by religious actors to shape the law to their views. It adds the following: “A burden includes indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.” This new language lays claim to rights to government funds, reduced fines, mandatory inclusion in government programs, and use of public facilities. In this respect, it breaks new ground.
The North Dakota RFRA initiative would add legal force to the argument that if the government funds public schools, then it must also fund private religious schools, and even force identical payments.
North Dakota’s proposed RFRA is not merely an attempt to permit religious believers to avoid the law, but also an attempt to give them more opportunities to gain government benefits. The new language in the proposed initiative states: “A burden includes indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.” This new language lays claim to rights to government funds, reduced fines, inclusion in programs, and use of public facilities
Luckily, North Dakota voters rejected the law.
We won’t be so lucky in Ohio since religious conservatives control the state legislature. We need to call our elected officials and demand they not vote for HB 376 and if it does become law we need to get it put on the ballot.
As Hamilton wrote in another column:
The Supreme Court absolutely got it right in Employment Div. v. Smith when it held that religious liberty does not mean that one can be a law unto oneself. Instead, religious believers have obligations to neutral, generally applicable laws just like everyone else. While regulating belief and engaging in discrimination is unconstitutional, religious believers are not special citizens whose allegiance to the law is optional.
Laws would become meaningless if we could opt-out of the ones that “burden” our exercise of religion. I can promise you that Rep. Tim Derickson and Rep. Bill Patmon only mean for the law to apply to Christians only.
Won’t they be surprised when it doesn’t.
*Update 2/26/2014* Bill to be pulled
The Columbus Dispatch reported on 2/26 that HB 376 was to be pulled from consideration by the bill’s sponsors because it was too similar to a law passed in Arizona this week that made national headlines. As I noted above, HB 376 would allow discrimination against not just LGBTs but anyone if that discrimination was religiously based.
The prime legislative sponsors of the “Ohio Religious Freedom Restoration Act” will work to withdraw or otherwise stop all action on the legislation because of concerns that it may discriminate against gay Ohioans.
“We never started out with some idea of giving people the right to discriminate. That doesn’t work in this country,” said Rep. Bill Patmon, a Cleveland Democrat who is joint sponsoring the bill with Rep. Tim Derickson, R-Oxford. “If anybody knows me and knows my record, they know I’ve fought discrimination.”
Patmon said some interpret the bill as allowing people in business to discriminate against someone else based on his or her religious beliefs. “If that’s ambiguous, it needs to be cleared up.”
“Maybe the language is too loose. Maybe it does need some work. We intend to do work on it and make sure it’s the right kind of bill.”
The move, Patmon said, does not change his desire to protect the faith community’s right to exhibit their beliefs.
The faith community’s right to exhibit their beliefs shouldn’t be on the backs of people who don’t share the same views. Besides the 1st amendment already offers protection for individuals. HB 376 or any of the other current bills like HB 171, 303, and 304 also sponsored by Rep. Patmon just gives extra rights to Christians.