Dr. Barry Hankins is professor of history at Baylor University, and the co-author, with Thomas Kidd, of the new book Baptists in America: A History. He recently wrote about the controversy over Indiana’s Religious Freedom Restoration Act, at the Waco Tribune-Herald.
What’s really at stake with the Indiana religious freedom law? Before forming conclusions, a little history might help.
In the infamous 1990, so-called “peyote case” out of Oregon, the U.S. Supreme Court eliminated its own “compelling interest” test. The compelling interest test said that whenever the government infringes on religious freedom, the government must show a “compelling interest” for having done so. The law or regulation also had to be tailored in the least intrusive way possible. Without the compelling interest test, any “generally applicable law” would be constitutional no matter how much it infringed on religious practice.
After the Oregon case, all the government needed to show was that the law was not aimed specifically at a religious group.
The elimination of the compelling interest test was alarming because it meant that religious individuals and groups no longer had any claim of exemption from otherwise neutral laws that in fact discriminate against religious free exercise. Out of that concern arose probably the most bipartisan law passed in my lifetime (and I’m 58 years old) — the Religious Freedom Restoration Act (RFRA). This act restored the compelling interest test, putting the burden of proof back on the government whenever its laws and regulations infringe on religious freedom.
But the Supreme Court gutted the part of RFRA that applied to states. In response, many states, including Texas, passed their own RFRAs. These mini-RFRAs say that whenever a governmental law or regulation infringes on religious freedom, the burden of proof will fall on the government agency to show a compelling interest for the law. By way of example, it’s not very hard for the government to show it has a compelling interest in disallowing a religious practice that requires infant sacrifice or racial discrimination.
Now to Indiana… [read the rest at the Waco Trib website]