Rep. John Tilley, chairman of the House Judiciary Committee, will soon be given the opportunity to show his constituents in Christian and Trigg counties how he views religious freedom. House Bill 279 “The Religious Freedom Act” will be presented to his committee sometime within the next two weeks.
You may be scratching your head wondering why this is an issue. After all, the First Amendment of the U.S. Constitution already guarantees us religious freedom. The Establishment Clause guarantees us that there will never be an established, preferred American religion (denomination). In the Founding Fathers’ minds, the Free Exercise Clause guaranteed that basic Biblical principles and values would be present throughout public life and society. Both clauses restricted the actions of the federal government, but neither restricted the actions of citizens.
To understand why HB 279 is important to our way of life in Kentucky, we must become familiar with two terms that explain how religious freedom cases are handled before the courts: strict scrutiny and rational basis. Strict scrutiny was the legal standard for all religious freedom cases prior to 1990. The government first had to prove that there was a “compelling interest” and then once proved, it could use only the “least restrictive means” to protect that interest. In other words, an issue had to have an undeniable basis for action before government could act to curtail religious freedom. Rational basis means the government only has to have “a reason” to restrict religious freedom.
In the early 20th Century, the U.S. Supreme Court affirmed and established strict scrutiny as the legal test that issues had to pass before government could restrict religious freedom. But in 1990 the court downgraded the protection of religious freedom when it ruled that government only needed “a reason” to limit religious freedom. This became known as the rational basis standard. Congress responded to the court’s decision in an overwhelming way in 1993 by passing the Religious Freedom Restoration Act.
RFRA restored the original strict scrutiny standard, which meant the federal government had to prove it had an authentic “compelling interest” before it limited anyone’s religious freedom. That meant that once again the burden of proof fell upon the federal government and not the citizen.
It now is up to each state to reestablish the Strict Scrutiny standard for all matters regarding religious freedom. Twenty-six states have done so. The Kentucky legislature has not.
Unfortunately, the Kentucky Supreme Court decided on Oct. 25 to use the rational basis standard instead of the strict scrutiny standard when it interpreted the Zook et. al. vs. the Commonwealth of Kentucky case. This involved nine Amish men who would not display the required orange triangle on their buggies. They appealed the court to allow them to use an alternate method that would not violate their strongly held religious beliefs.
Justice Mary Noble wrote the majority opinion. The majority concluded “the statute is presumed constitutional unless there is no rational basis for (the statute.)” Thus the majority upheld the decision to restrict religious freedom.
In the dissenting opinion, Justice Will T. Scott explained, “Employing a rational basis standard renders inconsequential Kentucky’s free exercise guarantee in that virtually any asserted government interest could justify laws ... substantially burdening individuals’ religious liberty.”
The Kentucky Supreme Court’s decision selected rational basis as the test to use when deciding religious freedom cases. It is now up to the legislature to act to re-establish the strict scrutiny test as the basis for deciding religious freedom cases that come before state and local courts in the commonwealth.
We are your cheering section, Rep. Tilley. Do the right thing. Your constituents expect it. Please allow the Religious Freedom Act to come out of committee and be voted upon by the whole House and then sent to the Senate.
Constituents can express their opinion to Tilley by calling the legislative message line at 800-372-7181. The receptionist can also copy a message to House and Senate leadership.
WILLEE COOPER is a former teacher and military spouse. A Hopkinsville resident, she is past president of the Kentucky Federation of Republican Women. Her column runs on the first and third Friday of each month. Reach her at firstname.lastname@example.org.