Two Ohio lawmakers want to ensure the state courts are equally protective of a person’s religious freedoms as the federal courts and introduced last month a state version of the federal Religious Freedom Restoration Act.
And if passed by the General Assembly, and signed into law by Gov. John Kasich, Ohio would be the 18th state to pass such a bill.
House Bill 376, introduced by Reps. Tim Derickson, R-Hanover Twp., and Bill Patmon, D-Cleveland, on Dec. 4, is designed to tell the courts that it must use the standard test of strict scrutiny — which the legislators say had always been done except in one Oregon case in 1990 — in order to assure individual freedom of religion rights. The bill has more than 40 co-sponsors before Judiciary Committee hearings start later this month and the support of several religious-based organizations.
“The First Amendment affords us the right to express our religious freedom. The challenge here is in the courts: do we as individual have religious rights? Or is it the flip side of that, do our rights apply to the whole and not the individual?” said Derickson. “I would suggest that up until 1990, that it does indeed allow the individual to practice their faith.”
While there is significant support for the bill, the American Civil Liberties Union of Ohio isn’t sure a state law can outdo what’s spelled out in the Constitution.
“Whatever a piece of state legislation does, it’s not going to trump the U.S. Constitution,” Nick Worner, communications coordinator for the American Civil Liberties Union of Ohio, told The Columbus Dispatch last month. “Individual religious freedom is extremely important, but it’s never been a free pass to impose your religious beliefs on other people.”
Patmon said he’s “fairly comfortable” this bill will be on Gov. Kasich’s desk to sign by the end of the first quarter of the year. He said this is important legislation to ensure a fundamental principle in the founding of the country is followed at the state level.
“I’m deeply concerned about my country as a whole and how we go about governing on a day-to-day basis, living. Religion is a big part of it,” Patmon said. “How do you have a democracy without some morality?”
The legislators said the House Bill 376 will assure what happened in Oregon doesn’t happen in Ohio. In Department of Human Resources of Oregon Employment Division vs. Smith in 1990, the court ruled saying that the use of peyote in part of a religious Native American ritual was not protected under freedom of religion. Unemployment benefits were denied because to two Native Americans because they could not pass a drug test.
Derickson, who isn’t condoning the use of peyote, said the standard of strict scrutiny — which means there must be a compelling government interest in order to burden a person’s religious rights — was not applied in this case. This case eventually prompted Congress to draft and pass the Religious Freedom Restoration Act of 1993, which was signed into law by President Bill Clinton.
In a 1995 speech, Clinton said about the freedom of religion: “Religious freedom is literally our first freedom … We have more than 250,000 places of worship. More people go to church here every week, or to synagogue, or to a mosque or other place of worship than in any other country in the world. More people believe religion is directly important to their lives than in any other advanced, industrialized country in the world. And it is not an accident. It is something that has always been a part of our life … This is a remarkable country. And I have tried to be faithful to that tradition that we have of the First Amendment. It’s something that’s very important to me.”
However, in 1997, the U.S. Supreme Court ruled this act could not be applied to state-level court cases, and states started to adopt the state version of the act. To date 17 states have adopted a version of the act and another 11 have tightened its religious freedom laws.
“What we’re hoping to do is to put in statues that’s already in place and other states and the federal level already has. We’re always being challenged,” Derickson said. “We have such diversity in religious views and religious differences, why not put into statues what we’re already practicing in the courts.”
Tom Smith, Ohio Council of Churches public policy director, said the bill simply re-emphasizes that religious orders “should be independent and operate with a certain degree of freedom in terms of their belief.”
“Our belief is if you don’t protect one portion of religious freedom, you endanger other parts of religious freedom,” he said.
This bill is more about religious accommodation than anything else, said Rabbi A.D. Motzen, the national director of state relations in Ohio for Agudath Israel of America, a national Orthodox Jewish organization.
“It’s restoring the protection that existed and was interpreted until 1990. What we’re talking about is restoring the First Amendment that has kept our country strong for the last 200-plus years. It doesn’t prejudge any case. It gives us our day in court.”
The bill has been assigned to the Ohio House Judiciary Committee. Derickson said the bill will likely get a hearing in the committee near the end of the month.