Controversy over religious liberty and gay rights has erupted in various state legislatures this year.  Most notably Arizona contemplated a minor adjustment to its Religious Freedom Restoration Act. Perceived as a move to protect religious believers from having to participate in same-sex weddings (as a florist or photographer, for example) the bill was widely and, it must be said, ignorantly condemned by many institutions and individuals. South Dakota had its own piece of legislation on this matter, Senate Bill 128, but it has essentially been killed. What is the impetus behind these bills?

In the 1960s, the U.S. Supreme Court held that when the government places a burden on religion it must show that it is advancing a “compelling state interest” and the means used to achieve that interest that are the “least restrictive” to religious liberty. This provided strong protection for religious liberty.

In 1990 the Court lowered this standard. The Court held that as long as a law has a “rational basis” and is “generally applicable,” i.e., the law applies to everyone and does not single out any group, one cannot avoid the law on religious grounds.  In essence, the Court said the government just needs a decent reason, not a compelling one, to burden religious liberty. This was widely held to be a significant lowering of protection for religious liberty.

In response Congress overwhelming passed and President Clinton signed the Religious Freedom Restoration Act (RFRA). This law put into federal statute the “compelling state interest” and “least restrictive means” tests. A later Supreme Court decision held that RFRA restricted only the federal government, not state and local. So some states passed their own RFRA laws.  

According to religious freedom attorney Douglas Laycock, these RFRA laws were always intended to protect groups and businesses as well as individuals. Arizona was simply attempting to codify this understanding of the law.  

But Mr. Laycock has noted in other contexts that these are dark days for religious liberty.  Because of the clear conflict between same-sex marriage and the deep religious beliefs of many Americans, religious liberty conflicts are on the rise. We are already seeing business owners being sued successfully for refusing to work same-sex weddings and people are losing their jobs because of their traditional beliefs regarding marriage and homosexuality.

There is growing concern, well founded in my view, that same-sex marriage will be used as a bludgeon to force all dissenters into conformity. There is some precedent in law that religious schools, hospitals, social service organizations, and other entities can be stripped of licensures and legal privileges (such as tax exempt status) for reasons of “public policy.” Laycock, himself a same-sex marriage advocate, notes support for religious liberty is at an unprecedented low due to the growing support of same-sex marriage over religious liberty. Increasingly the law is saying sexual liberty is more fundamental than religious liberty.  

South Dakota is one of very few states with no RFRA law either in statute or in case law.  We should pass one as soon as is practicable.  S.B. 128 was a clumsy attempt to do just that.  All that is needed is to copy the federal RFRA.  Religious liberty is losing the battle for the minds of Americans.  We must defend this most fundamental of liberties.  

Jon D. Schaff is a professor of political science at Northern State University in Aberdeen. His opinions are his own, not those of the university.

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