AUGUSTA — A draft of a Maine senator’s “religious freedom” bill shows the plan is nearly identical to the Indiana law that has sparked national controversy in recent weeks from those who say it has legalized discrimination based on sexual orientation.
The draft of the bill by Sen. David Burns, R-Whiting, was obtained by the Bangor Daily News on Tuesday. The final version of the bill has not yet been printed, so changes to the law could still be made before it hits the floor in the Senate. However, several people familiar with the bill confirmed the authenticity of the draft obtained by the BDN.
Supporters say the bill would affirm the state’s commitment to the First Amendment by setting a better standard for government intrusions on religious exercise.
But critics, including lawyers with the American Civil Liberties Union of Maine, said religious rights in the state are already protected by the First Amendment, the Maine Human Rights Act and the Maine Constitution.
“People’s religious liberty in Maine is not being unduly burdened,” said Oamshri Amarasingham, public policy counsel for the ACLU of Maine, who reviewed the bill on Tuesday. “We have good laws that protect the exercise of religion. The goal of (bills like Burns’), as they’re being proposed or passed in the states now, is — if not explicitly, very close to explicitly — to let people get out of compliance with nondiscrimination laws.”
Burns declined through a spokeswoman to be interviewed for this story.
Indiana’s law drew national condemnation from civil rights groups, gay rights advocates, business leaders and politicians. Since Indiana Gov. Mike Pence signed the law on March 26, at least one business in his state has announced it will no longer cater same-sex weddings.
The national outcry was so fierce that Pence signed a fix to the bill that prevents it from rolling back anti-discrimination laws passed by individual municipalities. The fix, however, does not apply to the majority of Indiana towns and cities that have no such local laws.
While Pence has said repeatedly that the law is not about discrimination, prominent religious advocates say the anti-discrimination proposal would “destroy” the bill, according to a report in the Indy Star newspaper.
What’s in the bill?
The proposal, currently titled “An Act to Enact the Preservation of Religious Freedom Act,” is similar to legislation passed in several other states, most recently Indiana and Arizona. It’s also largely the same as legislation proposed by Burns last year, which was rejected by the Maine Legislature.
Like those, it establishes that state, county and municipal government cannot substantially burden, directly or indirectly, a person’s free exercise of religion unless it does so in furtherance of a compelling governmental interest — such as public safety — and in the least restrictive way possible.
That’s the standard applied by the U.S. Supreme Court on cases involving the free exercise clause of the First Amendment until the early 1990s, when the court adopted a less strict standard that allowed for incidental infringement on free exercise as long as the law in question applied to everybody, regardless of religion.
Congress passed a law in 1993, the Religious Freedom Restoration Act, or RFRA, which restored the stricter standard. To date, 21 states have passed their own versions of the law.
Burns’ bill is essentially a RFRA for Maine. It also allows anyone who believes their freedom of religious exercise is being burdened by the government to file a lawsuit, or to claim religious freedom as a defense for breaking a law.
The definition of “substantially burden” contained in the bill is broad, including any law that “directly or indirectly constrains, inhibits, curtails or denies the exercise of religion.” It also defines as burdensome any law that “compels an action contrary to a person’s exercise of religion.”
The latter is what has many civil rights advocates worried. Amarasingham said Burns’ bill could turn back laws that ensure equal treatment for Mainers.
That’s because it’s those laws that “compel” a bridal shop run by a conservative religious business owner to serve a lesbian couple — even if her religion frowns upon homosexuality. They also “compel” a teacher to report an instance of anti-transgender bullying, even if his religion would have him look the other way. And they “compel” municipal clerks to give marriage certificates to all couples, regardless of their religious views on who may or may not marry.
If the bill passes, those protections could unravel, but Burns said he doesn’t think that will happen. He points to the federal law, after which his bill is modeled, as evidence that fears about legalized discrimination are overblown.
“The legacy of the federal RFRA should alleviate any concerns regarding supposed repercussions this bill, as the law has never been used to sanction or allow discrimination of the kind opponents fear,” Burns said in a statement released last week.
Potential discrimination at heart of controversy
Carroll Conley, executive director of the Christian Civic League of Maine, said the bill is not about discrimination. Instead, he said, it’s about ensuring the government only infringes on religious rights when it’s absolutely necessary.
For example, Conley said, members of Maine’s Amish community are forced by Maine law to wear bright orange clothing when they hunt — even though their religion prohibits such brightly colored clothes.
Currently, if the Amish sued Maine over the hunter safety law, the state would have to clear a pretty low hurdle to continue forcing Amish hunters to wear clothing that violated their religious beliefs. But if Burns’ bill passed, Conley said, the state would have to show there was no other way to ensure hunter safety.
“The state has a compelling interest in public safety, but the Amish may provide a less restrictive way to fulfill that interest — a red color that they believe serves the same purpose as the orange,” he said. “In Maine, it’s too easy for the state to jump into that part of religious life.”
Unlike in Indiana, which has no statewide LGBT anti-discrimination law, Maine already protects LGBT residents from discrimination in employment, public accommodation, housing, credit and education.
Amarasingham said that makes Burns’ bill even more monumental than Indiana’s, or a similar law passed recently in Arizona, where “you could already fire someone for being gay. In Maine you can’t,” she said.
But Conley said the prospect of discrimination is neither here nor there. Religious freedom is already being burdened by state law, he said, and the Preservation of Religious Freedom Act would simply tell the courts how to determine whether that burden is acceptable.
“I don’t think it creates the conflict,” he said. “Those conflicts already exist. This says that when those conflicts occur, this is the standard on which they will be judged.”
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