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VOL. 39 | NO. 18 | Friday, May 1, 2015

Does gay marriage ‘burden’ religious exercise?

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“When is the law that is the law not the law? And vice versa.” Yeah, I know, that was last week’s column. But it’s apropos of the rash of laws that have been bandied about, and passed in some states, recently. They’re called Religious Freedom Restoration Acts.

When it came up in these parts a couple weeks back, my first thought was, “Is this necessary?” I didn’t feel or believe that my religious freedom had been diminished. At least not to the point of bringing the verb “restore” into play.

RFRA’s were originally hatched two decades ago to address some Native American rituals involving peyote. A near-unanimous Congress enacted the federal RFRA, providing in pertinent part that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”

However, “[g]overnment may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person … (1) is in furtherance of a compelling governmental interest; and … (2) is the least restrictive means of furthering that compelling governmental interest.”

Moreover, “[a] person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.”

The Supreme Court held the federal RFRA did not apply to state governments, citing the Fourteenth Amendment. City of Boerne v. Flores, 521 U.S. 507. So, as you might imagine, several states acted to pass RFRA’s of their very own.

And then, it seems, there was a lull until same-sex marriage became the hot-button issue of the day.

Regarding this concept, there are people who think and/or feel so strongly – usually based on what they’ve been taught – that a certain activity is wrong per se, that they will not be associated therewith.

To deliver certain goods and services to people who are engaged in these activities, runs the argument, is contrary to their “beliefs.”

In other words, it “burdens” their “religious exercise.”

Notwithstanding that thesauri these days virtually equate the verbs “think,” “feel” and “believe,” I still distinguish among these concepts.

People think with their brains, feel with their senses and believe with their souls.

I know what the Bible “says” on the hot-button issue. I’ve studied all the passages that are cited as being applicable.

There seems to be room for disagreement, enough that pronouncing one view right and another wrong runs counter to my reformed-tradition Presbyterian mindset.

I do sense, though, that the New Testament is trending upward. I’m in favor of not casting the first stone. Or the second.

I’ve come to think – or feel or believe – that what’s going on in society is an intangible balancing test. A certain group really wants a law to look to justify their not doing what they are not going to do anyway. Another group says, “Is this necessary?”

For what it’s worth, the Arkansas RFRA is virtually identical to the federal.

On second thought, I bet we can live with it.

Vic Fleming is a district court judge in Little Rock, Ark., where he also teaches at the William H. Bowen School of Law. Contact him at vicfleming@att.net.

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