AUGUSTA, Maine — Civil liberties watchdogs, gay rights advocates and some lawmakers were already rattling sabers Thursday at the specter of a “religious freedom” bill similar to the one passed last week in Indiana, which has stoked fears that Maine could open the door to legalized discrimination.
Sen. David Burns, R-Whiting, said Thursday that he’s moving ahead with a bill similar to the one recently passed in Indiana that sparked national controversy over fears that it would legalize discrimination against lesbian, gay, bisexual and transgender people.
The outcry in Indiana over its bill spurred legislators there to make amendments this week, and Republican Gov. Mike Pence signed the new version into law Thursday evening.
The original Indiana bill, a state version of the federal Religious Freedom Restoration Act of 1993, or RFRA, said state law can’t “substantially burden” a person’s ability to follow their religious beliefs — even if the burden is purely coincidental — unless it can prove a compelling interest to do so.
There’s a lot of legalese packed in that sentence, but suffice it to say that “compelling interest” is a difficult standard to meet.
The federal RFRA was cited by Hobby Lobby in challenging a U.S. law requiring the chain to provide its employees with insurance that covered contraception. The U.S. Supreme Court sided with Hobby Lobby, ruling that the law violated the company’s religious rights.
While the federal law is still in place, the U.S. Supreme Court ruled in 1997 that it could not be applied to the states, prompting some states to begin passing their own versions of the act. Today, 20 states have their own versions of RFRA, and 15 more have such bills pending in the Legislature, according to the National Conference of State Legislatures.
While business leaders, celebrities, and advocates for LGBT people have decried the law, and national headlines have focused on Indiana for days, Burns said in a brief interview Thursday that he didn’t understand all the fuss.
“I’m not paying a whole lot of attention to them other than that you can’t turn the TV on without it being in your face,” he said. “I don’t understand what all the hoo-rah is. We have 20 years of history [with this law at the federal level]. It hasn’t been an issue, and it’s not going to be an issue here in Maine.”
Burns introduced a similar bill last year. It would have allowed Mainers to sue the state if they believed the government had placed a burden on their religious expression. The bill had wide-ranging implications, from pharmacists who may not want to distribute birth control or morning-after pills for religious reasons to any number of complaints that could be raised by individuals whose religious beliefs don’t jive with the state’s law allowing for gay marriage.
Proponents, including the Christian Civic League of Maine, said the bill was necessary to protect Mainers trying to abide by the tenets of their faith from needless government interference in their constitutional right to free exercise of religion. The bill was ultimately defeated in the Democrat-controlled Senate.
Burns said his proposal this year, the official language of which is not yet drafted, will closely mirror the federal RFRA, though he provided no details.
Still, opponents of last year’s bill lined up on Thursday to say they’d continue to fight the proposal in the new Legislature.
The American Civil Liberties Union of Maine, which joined the Democratic Party in leading the charge against Burns’ bill last year, said a “religious freedom” law in Maine could create legal chaos because the state already protects LGBT people from discrimination.
For example, if a gay couple were refused service at a hotel because the clerk’s religion disapproved of their relationship, the clerk’s action could be protected by RFRA. Meanwhile, the couple would be protected by the state’s law prohibiting discrimination in public accommodations, and the hotel would be liable for a discrimination suit.
So who would win? The answer is unclear.
“That’s one of the real problems with this law. You would have different rights coming into conflict” said Oamshri Amarasingham, public policy counsel for the Maine ACLU, on Thursday.
Amarasingham also stressed that the U.S. and Maine constitutions, as well as the Maine Human Rights Act, already protect religious people from discrimination on the basis of their faith. Other laws in the state include religious exemptions, she said, such as the provision in the same-sex marriage law that prevents clergy from being forced to perform same-sex weddings.
The fear, she said, is that RFRA would not protect people from discrimination but create a right for some Mainers to use religion as a rationale for discriminating against others.
EqualityMaine, the state’s largest LGBT advocacy group, also pledged to oppose Burns’ efforts.
The group “will strongly oppose any efforts to undermine our state’s nondiscrimination laws, which are now almost a decade old. This proposal was wrong for Maine last year, and it’s wrong for Maine this year,” said the group’s executive director, Elise Johansen.
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