In the wake of court decisions legalizing same-sex marriage, 2015 has seen many state legislatures take up bills that would restrict LGBT rights, including so-called "religious freedom" laws. (Map: Human Rights Campaign)

Why NC's 'religious freedom' bill is worse than Indiana's

Indiana Gov. Mike Pence (R) ignited a national firestorm last week after signing into law the Religious Freedom Restoration Act, which critics argue provides a "license to discriminate" against gay people and others. Angie's List, Apple, Yelp and other companies condemned the move and even threatened to nix expansion projects in the state, prompting the governor to say he wants lawmakers to "clarify the intent" of the law.

But just as Indiana's law was gaining national infamy, North Carolina lawmakers introduced matching Religious Freedom Restoration Act bills in the state House and Senate -- and according to legal scholars, the legislation introduced last week could pose an even greater threat than Indiana's to civil rights.

As in Indiana, proponents of the North Carolina Religious Freedom Restoration Act (RFRA) argue the legislation is modeled on a 1993 law passed by Congress and signed by President Clinton. The federal law proclaimed that the government cannot pass laws that "substantially burden" people's ability to follow their religion, unless the state can prove there's a "compelling interest" in doing so and has no other way to meet that compelling interest. 

In 1997, the U.S. Supreme Court ruled that the federal law applied only to the federal government, spurring a number of states to enact their own RFRA laws -- a trend that has grown in the wake of debates over gay civil rights and marriage equality.

However, the measure proposed by North Carolina lawmakers differs from the federal law -- and "religious freedom" laws in most other states -- in at least one key respect: It makes it easier for individuals to claim a law or policy is a threat to their religious beliefs, and to sue to opt out of complying.

Under the 1993 federal statute and most similar state laws, the person using RFRA has to show that obeying a law -- for example, complying with a local ordinance preventing housing discrimination for a gay couple -- would pose a "substantial burden" to following his or her religious beliefs.

But the proposed North Carolina bill dilutes that language, requiring that those  claiming their religious liberty is at risk prove only that obeying the law is a "burden" -- substantial or not.

Of the 19 other states with RFRA laws, only two -- Alabama and Mississippi -- omit the word "substantial." In the South, existing laws in Florida, Kentucky, Louisiana, South Carolina, Tennessee, Texas and Virginia all include the "substantial burden" standard, as does a proposed (and hotly-contested) measure in Arkansas.

That small change in wording could have big legal consequences. As conservative legal scholar Eugene Volokh notes, while it's clearly difficult to define what constitutes a "substantial" burden, several courts have used the "substantial burden" test in deciding whether challenges under state and federal RFRA laws are valid.

Others say that the weak language in bills like North Carolina's sends a dangerous message that such laws can be deployed as a "trump card," allowing religion to be used as a reason to disobey the law. In 2014, the Baptist Joint Committee for Religious Liberty, which supports "religious freedom" laws, sent a letter to state legislators in Georgia condemning a bill (HB 1023) for omitting the "substantial" provision:

HB 1023 … differs in significant ways from the version of RFRA that the BJC has supported. These differences raise concerns about striking the right balance when religious liberty interests conflict with other important governmental interests, including the prohibition on government establishment of religion. Notably, HB 1023 just says government cannot burden religion -- it doesn't include the important modifier that the burden must be substantial. . . . Without the substantial burden requirement, nearly any state law or regulation could be subject to exemption challenges. While religious liberty is one of our most precious rights, it is not an automatic trump card. 

The North Carolina bills include other language that favors those who claim their religious rights are being infringed. While the federal law and Indiana's state that there must be a "compelling governmental interest" for infringing on religious beliefs, North Carolina's goes a step further, stating there must be a "governmental interest of the highest magnitude" (emphasis added) to justify overriding religious beliefs. While "highest magnitude" isn't defined, the Baptist Joint Committee notes this is a "hurdle" not required in the federal law.

The future of N.C.'s Religious Freedom Restoration Act is unclear. Gov. Pat McCrory (R) has expressed skepticism about the bill. As The Washington Post notes, the vehement reaction against Indiana's measure points to changing public attitudes that make passing such laws more difficult -- and the political fallout more damaging.

As Chris Sgro of the advocacy group Equality North Carolina said after the North Carolina bills were filed:

Nobody wants to see this. You've got a handful of legislators that are pushing this on the state of North Carolina. It shows ... how out of touch the General Assembly is with North Carolina.

Image: 
<p>In the wake of court decisions legalizing same-sex marriage, 2015 has seen many state legislatures take up bills that would restrict LGBT rights, including so-called "religious freedom" laws. (Map: Human Rights Campaign)</p>

In the wake of court decisions legalizing same-sex marriage, 2015 has seen many state legislatures take up bills that would restrict LGBT rights, including so-called "religious freedom" laws. (Map: Human Rights Campaign)

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!6th. Century-Style Religious "Freedom"

When religion is law people are enslaved and entire nations are destroyed. We have seen this occur throughout history. It happened in the Americas in the 16th. century and is going on today in places like Iran, Libya and parts of Syria and Iraq. Religious zealots are trying to do the same thing in the US. RFRAs are nothing but bad laws created with the sole objective of circumventing good ones. They are the equivalents of Sharia laws in Moslem countries. They are purposely misnamed, misconstrued, and dishonest. RFRA bigots are trying to push the US back into the 16th. century.

RFRA

Found your article interesting and it caused me to do some more reading. When I actually compared the HB348 and SB550 to the 1993 bill signed by Clinton the definitions of burden and substantially burden are exactly the same. While I agree there is a significant difference in the words when looking at Webster but when I look at the legislation which defines the meaning of burdens and substantially burdens they are the same. When discovering this I am not sure I can draw the same conclusions and outcomes

NC Ilegal religious freedom bill and downfall of it's economy

Obviously NC and it's arrogrant lawmakers learned nothing from Gov. Pence and the sad state of IN. If you pass this bill to discriminate do you really think you can intice companies like Volvo or any other major employer to come to your state. Major Corporations hire employees that are diverse because they know it works for the better for the conpany. Passing laws permitting discrimination against any grouo of people for any reason is a violation of the Bible, the Word of God, and the Teachings of Jesus Christ. Germany had a man that came in to power and passed laws similar to these. His name by the way was HITLER. We all know how well that turned out. So it comes down to this dear citizens of NC, do you want to be known as a progressive state or the first NAZI State? You as citizens have the power to decide.

If all else fails, Volvo TN has several major car manufactors in TN who love it here. We would love to have you here in the family.

Religious Freedom Is Stymied by Beliefs Imposed on Others

My understanding is that the intent of the federal law in 1993 was to prevent one entity (specifically the federal government) from telling another entity (individual citizens) how to practice their chosen religious views. The recent state bills turn this principle on its head, supporting the right of one entity (fundamentalist Christians, primarily) to impose their chosen religious views on another entity (anyone who disagrees with them). It's a scary precedent because it essentially says that everyone gets to establish a set of values/rules that they are allowed to impose on others. If a restaurant owner is allowed to refuse service to a single mother because his preacher says that women with children should be married, this goes way beyond the belief that the restaurant owner has a right to make decisions for himself. Conservative doctrine is paradoxical, professing that citizens should be allowed to make their own choices--as long as the choices are conservative. And this paradox leads to a strange feeling of being restricted when they aren't allowed to restrict others. Liberals, on the other hand, tend to crave novelty, value diversity, and trust that one individual's choices won't impede the ability of others to make their own choices, as long as the choices aren't damaging to others. After all, if a conservative Christian couple is required to rent an apartment to a gay couple, the existence of the gay couple doesn't prevent the Christian landlords from practicing their religion. On the other hand, if people and communities are allowed to openly discriminate based on differences in religious views--punishing and coercing those who think differently--that does make it difficult for people to decide for themselves how to practice religion, which is the opposite of religious freedom.

RFRA legislation in North Carolina

Tthe ultimate irony is that we will eventually need Government to intervene in the legislative agenda of fundamentalist religion. Otherwise, we are eventually headed for war between Religions. Southern Baptists don't seem to see the implications of passing these laws and how it sets presidents for allowing Islam, Buddhism and Druidism to pass similar laws if there enough of these practitioners in a community of any given state.
Can't fundamentalists see this is why we left Europe for America?!

Well done! The Abraham of

Well done! The Abraham of 21st century only has to choose a mountain in NC; then he can kill Isaac without worries, knowing that the legislators support his act. After all, disobeying a direct order of your god is clearly a burden to your religion.

NC RFRA

NC's proposed NFRA is particularly heinous because it allows individuals to interpret the law for themselves without benefit of established legal precedent or upon the judiciary for clarification. Decidedly, the law is aimed specifically at Christians, encouraging them to act according to their "faith". Lawmakers didn't take into account the multicultural nature of NC. What if a Muslim business refused service to a female because she was not appropriately attired as directed by the precepts of the Islamic faith? I think then that the heads of our lawmakers would spin around.

We hate Big Government unless it's us

I just looked over the bill, and the current text allows the government of North Carolina to be a "burden" to your freedom of religion if "it is demonstrated that applying the burden to that person's exercise of religion in this particular instance: Is essential to further a compelling governmental interest". Apparently there doesn't even need to be a highest magnitude now, just a compelling one.

I, too am horrified by these

I, too am horrified by these bills, and believe that if this bill goes through,all of us here in NC need to join the Boycott NC group. Until business leaders get on board and force the issue, the Legislature is going to think that they can intrude on our personal lives in every way. We need groundswells from the community about this bill because it can be used to discriminate broadly. This is not funny.

So as long as my religious

So as long as my religious beliefs include drinking & driving, I'm okay? Or maybe 14 year-olds...

Well, yes, as long as you

Well, yes, as long as you tell them it was communion! They can't call you a liar because how dare they accuse you of doing something that is against your religion. Have fun with that! I am moving to an anti-hate state. Pennsylvania, I think they have enough room!

It is against my religious

It is against my religious beliefs to pay state taxes so if I disobey this law am I allowed to be sued?

"Nobody"

The quoted comment from Chris Sgro starts with a sentence that is, at face value, incorrect and it results in a self-contradictory paragraph. He states, "Nobody wants to see this..." Then he notes there are a few legislators that do want this, and we all know as empirical fact that they represent a minority of narrow-minded NC voters - who also want this law.
I just wish the folks representing my progressive views would stop using absolute terminology. Unless stated conditionally, absolute terms are almost never true and thus do not accurately describe a situation. I want progressive voices to be clear, accurate, and convincing!
Talking in false absolute terms is a hallmark of right-wing demagoguery and I want our views to better than that.

Religious Freedom Restoration Act

Now Volvo is considering NC, SC, KY. to build an car plant. What will the Swedes say about narrow minded laws? After all Sweden like all northern European countries (which include down to Belgium and Germany) are peaceful secular. Polite people do not talk there about church or politics.

NCRFA

shameful example, once again of the radical agenda of North Carolina's far right extremist agenda. What is next? Refusal to serve mixed race couples? Refusal to serve Muslims, Buddhists, unmarried couples? Does this give the Ku Klux Klan permission to claim that they can discriminate against minorities?
These laws set a very dangerous precedent for discrimination.

You do understand that, while

You do understand that, while this Bill was created out of the deep discontent the right's have for gay's, this is an all out right to discriminate. This Bill does not discriminate who people can "practice religion" (discriminate) against. If you are not their color, they believe "God" separated the continent's for a reason; so they can discriminate. If you are a woman, they believe a man is to be the head of the home and woman should be seen and not heard; women also cannot have final rights to her body because it was made for a mans pleasure; a woman cannot have an abortion if raped, because her sole purpose is to have children, not to "murder" them; they will discriminate. And, of course, you are fowl being if you are gay, because they cannot help but picture every couple having sex; they will discriminate. If it is Sunday/Saturday/Friday, which ever is the Sabbath for the individual they cannot work, they must go home and play on their X-Box, because they must worship on that day. Any questions?

Religious Freedom Act.

Religious freedom, or SELECTIVE religious freedom?.. will this new bill also exclude service by these "Christians" to adulterers, blasphemers, idolators? Seems to me, there's going to be a LOT of christians looking for new livelihoods if this bill passses.

tired of bigotry

we do not need this here, no state need's this. we are a secular government and can not use religion in legislation, ;laws,or politics. secular government really means that the church has ZERO say in our laws and the government can not favor any religion period, it is to remain neutral period. these are unconstitutional anyway because of our 1st amendment establishment clause. they are illegal, they are highly immoral and just wrong.

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