John DiPippa: HB 1228 Does Religious Liberty A Disservice

Editor’s note: John DiPippa, the author of this guest commentary, is Dean Emeritus and Distinguished Professor of Law and Public Policy at the William H. Bowen School of Law at the University of Arkansas at Little Rock.

Religious liberty is at the heart of our constitutional freedoms. No government can force us to affirm or deny any religious belief, punish religious doctrines it believes to be false, impose special disabilities due to religious views or religious status, or lend its power to one or the other side in controversies over religious authority or dogma. Our constitution’s framers wanted to avoid Europe’s religious wars and persecutions by balancing the protection of individual conscience with the need for democratic tolerance. Yet in our own legislature, lawmakers are using the concerns of well-meaning individuals and the thin guise of “religious liberty” to create laws that are vague at best and harmful at worst.

In Arkansas, legislators have proposed House Bill 1228, the so-called Conscience Protection Act. This wide-ranging bill would allow anyone to sue if they believe that government action “substantially burdens” their personal religious beliefs. Bills such as HB 1228 – known as “religious freedom restoration acts” – go beyond basic legal protections for religious believers, creating a can of worms that will only result in more lawsuits, more costs, and an even more heavily burdened court system. Beyond that, they undermine the rule of law and further divide us along religious and cultural lines.

In a democracy, we live side by side and interact with people who believe differently from us. Once we make decisions through our legislatures or our courts, the law applies to everyone and everyone is expected to comply. To allow each individual to decide which laws to follow based on personal religious beliefs invites chaos.

Don’t believe me? Listen to the words of conservative Supreme Court Justice Antonin Scalia. He said that adopting the kind of test proposed in House Bill 1228 would be “courting anarchy.” According to Justice Scalia, a diverse society dedicated to religious liberty “cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. (Employment Division v. Smith, 494 U.S. 872, 889 (1990).)

The unintended consequences of such legislation could be considerable. Imagine, if you will, if a police officer could sue his or her department for requiring him to patrol a synagogue, church, or mosque. Arkansas requires childhood vaccinations but what if every school district and every school nurse and every school teacher could be sued if those requirements violate a parent’s religious beliefs? Every single decision by every single state employee, from school librarians to the governor of the state of Arkansas, could be subject to potentially costly litigation. The list is endless and breathtaking: the payment of taxes, all health and safety regulations, animal cruelty laws, environmental protection laws and regulations, child neglect laws, drug laws, traffic laws, minimum wage and maximum hour laws, laws prohibiting discrimination on the basis of race, gender, and, yes, even religion.

Furthermore, this legislation could allow government employees tasked with carrying out the law to ignore it. With HB 1228, county clerks could seek exemptions from issuing marriage licenses for same-sex couples, or for interracial couples, or divorced couples. Teachers could refuse to teach the required curriculum or government attorneys could refuse to prosecute certain cases. Even if the government might eventually win these cases, they would represent a never-ending cost and ongoing threat to government efficiency.

This turns the rule of law on its head. Instead of the law applying equally to everyone, we would allow each government employee to pick and choose which laws to enforce and which to ignore. As the United States Supreme Court said over 100 years ago, “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” (Reynolds v. United States, 98 U.S. 145(1879))

We are one of the most religious countries in the Western world. We got here following a traditional balance: religion would not be singled out, but everyone would play by the same rules and general rules would apply to everyone. Society is changing, and many people feel like the ground is moving under their feet. But we cannot confuse disagreement with discrimination. These changes don’t mean that there is an attack on religion. There are no laws preventing church attendance, nor is anyone punished for their religious beliefs. What would a true threat to religious liberty look like? There would be religious violence and forced conversion, you could lose your job if you did not adhere to official religion, or the government would mandate, sanction and support certain forms of worship. We need look no further than today’s headlines to see those societies in action around the globe.

Legislation such as HB 1228 does religious liberty a disservice. We can disagree about how best to protect the rights of religious believers but religious freedom restoration acts will not only cost the taxpayers and our government too much but they will further divide us. That does us no favors at all.