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Focus launches “religious liberty” ballot amendment in Colorado

Daniel Gonzales

March 16th, 2012

Somehow both OutFront Colorado and I missed not one but two articles last week announcing Focus On The Family with the help of Alliance Defense Fund, intends on creating a coalition to pass a ballot amendment in 2012 to “protect” the religious freedoms of individuals and religious groups.

Here’s the proposed wording: (source withheld)

(1) The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be burdened unless the government proves it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest.

(2) A burden includes indirect burdens such as a withholding of one or more benefits, assessing one or more penalties, exclusion from one or more government programs, and/or exclusion from one or more government facility.

This is a seemingly new strategy and we don’t have any other states to look to for precedent where such things have been enacted.  However North Dakota will vote on a similar amendment in June of this year.  (The proposed Colorado amendment would be voted on in November).

As of recently Focus’ CitizenLink has had a bee in their bonnet about so called religious liberty as it pertains to reproductive freedom and health care reform here, here, here, here, here, here, and here, this week alone.  In my opinion contraception mandates is merely the political flavor of the month, animus towards LGBT people is in season year round with Focus and friends. Joe.My.God has an eloquent take on the proposed amendment:

Focus On The Family has launched a ballot petition drive that, if successful, will ask Colorado voters to make it legal to deny housing, employment, and services to any person on the basis of religious objections. (Gosh, who COULD they be talking about?)

State equality org One Colorado is already responding by forming a coalition with Planned Parenthood of the Rocky Mountains and Interfaith Alliance of Colorado. One Colorado posted an official statement this morning which reads in part:

The initiative’s language — which focuses on “religious liberty” — is incredibly deceptive. It doesn’t make clear the widespread implications of enacting this law. Implications that don’t just impact LGBT people — but all Coloradans.

Imagine a law that allows a pharmacist to refuse to fill a birth control prescription. A law that permits an employer to refuse to hire people on the basis of sexual orientation or gender identity and expression. A law that gives protection to teachers who refuse to teach sex education or evolution. All for the sake of so-called religious freedom.

At One Colorado, we believe that everyone has a right to their own religious beliefs. But no one should be above the law. And we shouldn’t create a two-tiered society where the law applies only to some and not others.

One Colorado also announced they will be mounting a legal challenge to the proposed amendment, that will occur when the final wording comes before the Secretary of State’s Title Board which has the power to reject proposed ballot items.  If you wish to donate to the legal fund click here, One Colorado has set a goal of collecting the $5,000 needed by Monday.

Nobody has much to say from a legal perspective yet.  OutFront’s article included comment from the GLBT Community Center of Colorado’s legal director:

Mindy Barton also noted text of the measure is very broad and the potential applications are unclear.

“We are unsure of what the proposed ballot initiative mans, and we are interested to hear if Focus on the Family, whose Senior Vice President is listed as one of the proponents, will explain the intent behind it,” Barton said.

Illegal license plates commonly used by sovereign citizens. Note the plate in the top right reads "sovereign, Christian Citizen"

As a lay-person let’s have a look at the amendment’s wording. If allowed to actually take effect, it seems the amendment would allow someone with a “sincerely held religious belief” to disobey any law they see fit based on those beliefs.  Sometimes a person breaks the law by doing something, an example of this would be a Rastafari using marijana (a Schedule I narcotic) in a religious ceremony. Other times a person would break the law by not doing something, an example of this would be “sovereign citizens” who sincerely believe they are exempt from paying taxes.  Virtually any law it appears could be challenged, and the government would be obligated to justify they have a “compelling governmental interest” in enforcing it.  It could be decades of legal chaos as our courts subject thousand of laws to the compelling interest test to determine if they are trumped by “religious liberty.”

But ultimately that could work to our advantage.  When the public views ballot measures as vague or creating chaos, voters tend to error on the side of rejecting them.

The Friendly Atheist blogged about the proposed North Dakota amendment back in 2010 noting how blatantly unconstitutional its implications are, citing the federal Religious Freedom Restoration Act (RFRA) which was stuck down in Boerne v. Flores. He also has a fabulous quote from an opinion by Antonin Scalia in Employment Division v. Smith in which a Oregon man was denied unemployment benefits after using peyote in a religious ritual.  Wrote Scalia:

We rejected the claim (in Reynolds v. United States) that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. “Laws,” we said,

are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief? 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.

That sums it up perfectly, Focus’ “religious liberty” amendment would allow “every citizen to become a law unto himself.”

Comments

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Lynn David
March 16th, 2012 | LINK

Should such a law be enacted would it not immediately legalize marriage for gays and lesbians? It can be argued that some religions believe that marriage is a spiritual good for gays and lesbians and what compelling governmental interest there would be to deny such marriages?

Other than that it seems like it would put up Christianity in opposition to most any other religion. And it seems as if that is exactly what the reasoning is for the law. I suspect some would use it as a reason to also discriminate against Muslims.

Lindoro Almaviva
March 16th, 2012 | LINK

I am getting rather tired of the same sob story every other day: “MY religious liberty is being challenged. I have a deeply religious belief that I can walk into a mall and start shooting people. why is the police arresting me?”

The more i see of this, the more I refuse to have anything to do with religion.

Daniel Gonzales
March 16th, 2012 | LINK

My thoughts exactly Lynn David, but when two amendments conflict it’s my understanding the more specific one (which bans gay marriage in CO) trumps the more general one (people can break laws as they see fit for “religious freedom”)

revchicoucc
March 16th, 2012 | LINK

Separatism is a characteristic of religious fundamentalists and purists regardless of their religion. A neighborhood of Orthodox Jews is an example — while it is against the law to prevent someone else from living there, the dominant culture can make it less appealing to someone who does not share that purity.

For that matter, a neighborhood with lots of gay men is another example of self-selected separatism.

But there are too many straight Christians for them all to live in one place. So they must protect their “private property” — business, home, church, money –from “strangers,” people not like them.

In short, if the world will not come to our side and be like us, we must be able to keep the world away from us, and we must be able to use the police power of the state to accomplish this.

Ben in Oakland
March 16th, 2012 | LINK

I have to say I’m 100% ALL FOR IT!!!

I can’t imagine a more graphic illustration of why these people are so dangerous to everyone, and they’re doing us the favor of creating and paying for it!

It’s what I have always called the straight rights argument. They’re coming after us because it’s easy. but as the rhetoric over abortion birth control planned parenthood, and all of it shows, they’re coming atfer you just as soon as they finish with us.

You had best help us stop them, because if you don’t, we won’t be there to help you.

Embarcadero
March 16th, 2012 | LINK

Don’t look to other states, look to Mexico: yesterday the center-right PRI and far-right PAN voted in committee to advance changes to the Constitution that look exactly like this. They would not just threaten Mexico’s official secular state, they would make enforcement of laws about use of public resources (such as spaces) almost impossible.

This is a cross national effort led by the Vatican.

Remember, the personhood amendment passed first in Mexico, in the state of Baja California del Norte and was upheld by the Supreme Court.

http://www.jornada.unam.mx/2011/12/16/politica/026a1pol

Embarcadero
March 16th, 2012 | LINK

If you want to look at other states, we should notice that Utah’s Sutherland Institute proposed such laws and found a state sponsor for such legislation in 2010.

They quickly realized that this would allow mormons to be the object of discrimination and pulled support.

Priya Lynn
March 16th, 2012 | LINK

A law like that would make for one nasty society.

StraightGrandmother
March 16th, 2012 | LINK

Embarcadero = “This is a cross national effort led by the Vatican.”

StraightGrandmother= I am going to admit it, I am getting sick and tired of the Catholic Church and I want to fight them back. Why should our secular countries genuflect to Rome? Hate is to strong a word, but I am very close to that, relative to the Catholic Church and this Pope.

Désirée
March 16th, 2012 | LINK

@Daniel: why would gay marriage remain banned? wouldn’t any law that someone wished to break claiming a religious exception be “more specific”? If I want to not hire because you are gay and I claim religious liberty for doing so, wouldn’t the law that bands discrimination in hiring be more specific? So I do believe others are correct – this law would immediately allow gay marriage for those whose religion allows it.

Timothy Kincaid
March 16th, 2012 | LINK

Their arrogance will be their undoing.

This is soooooo stupid. Don’t they know that the ability to discrimate on the basis of religion cuts both ways?

For centuries folks like focus were an overwhelming majority. Religious protection wasn’t designed for them, it was designed to protect the outsider fringe faiths from them.

But now Focus is losing influence. Big Religion no longer holds sway over the culture or has automatic deference.

So what is their response? To throw out the very laws that they will soon need for protection. In their arrogance, they think “religious” means what they believe, what they want to do. They’ve forgotten that it also means what others want to do to you.

They need to take a good look around them. Very few employers or landlords will deny gay employees or tenants.

Big Business didn’t become the leaders on gay rights issues because they are a bunch of bleeding heart liberals. Rather, they found that gay employees can be an asset – just like it is a benefit to have diversity when trying to reach any diverse markets.

And it may be a stereotype but it is true that there is pressure in our community to keep up property and have a presentable home. And landlords know this.

If It isn’t already true it soon will be that there are more employers who would ban the wearing of a cross at work than they would ban gay employees. Or who would make no concessions for people who who do not want to work on Sunday mornings. This bill would stop focus’ buddies in the state from punishing such companies.

And what about landlords who dont want to rent to Catholics or Mormons because they ‘have too many kids’. now they can just put up their “no Catholics wanted” signs.

This initiative does nothing to protect religious employees or tenants. It only empowers those businesses and landlords who don’t much like God’s Sin Police and gives them an excuse – their deeply held religious belief in something else – a legal excuse to discriminate.

The one sad thing is that the more immediate victims will not be focus and buddies. Yes they would end up being the big losers, but in the meantime it would be ethnic communities, primarily immigrant communities.

Remember that geography, in addition to creating unique cultures, languages and ethnic groups also created distinct religions. It might be a federal crime to discriminate against Latinos, but if your firmly held religious belief doesnt allow Catholics…

Ben in Oakland
March 16th, 2012 | LINK

As always, Timothy, you said it with far more eloquence than I did.

Dan Gonzales
March 16th, 2012 | LINK

Désirée, the gay marriage ban is a constitutional amendment here in CO, not a statute. The principal of lex specialis dictates that when two laws at equal level conflict “law governing a specific subject matter (lex specialis) overrides a law which only governs general matters (lex generalis)”

Therefor I believe a state constitutional amendment specifically banning gay marriage would override a more general state constitutional amendment on religious freedom.

strech
March 16th, 2012 | LINK

It’s most likely constitutional (I’m not sure about “burden” vs the more common “substantial burden”; I don’t think that would cause a constitutional issue, but I’m not sure). The federal Religious Freedom Restoration Act was only struck down in Boerne as a federal law applied to state and local government; it still applied to the federal government, and has been upheld as such (Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal).

Beyond the RFRA applying to the federal government, 27 states have either a state RFRA or state constitution religious freedom clause applying the strict scrutiny standard; another 17 haven’t issued a ruling either way on it. (See Eugene Volokh’s exemption law map).

It could be decades of legal chaos as our courts subject thousand of laws to the compelling interest test to determine if they are trumped by “religious liberty.”

I find this somewhat doubtful, given that it’s already the law for the federal government and most state governments. And that in most states where it’s not the law, the courts haven’t needed to rule. (Colorado falls into this category).

On the other hand, the jump from “substantial burden” (used in the Federal RFRA and the state RFRAs so far, as far as I know) to “burden” in the Colorado law could be significant.

Housing discrimination doesn’t necessarily count as “substantial burden”; in Smith v. Fair Employment & Housing Com. it didn’t. (The case was decided in 1996, before Boerne, so it needed to apply the federal RFRA – and found that requiring someone to rent to unmarried couples did not violate it.)

However, it may count as “burden”. I’m not sure; “substantial burden” was one of the elements limiting the interference and the text should be changed in the Colorado bill.

Still, Bob Jones Univ. v. United States was decided pre-Smith and held

The Government’s fundamental, overriding interest in eradicating racial discrimination in education substantially outweighs whatever burden denial of tax benefits places on petitioners’ exercise of their religious beliefs. Petitioners’ asserted interests cannot be accommodated with that compelling governmental interest, and no less restrictive means are available to achieve the governmental interest.

So in terms of clause 1

… the government proves it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest.

Anti-discrimination laws have already passed that.

Timothy Kincaid
March 16th, 2012 | LINK

I so shouldn’t betray my faith this way, but…

Hello, atheists. When are you going to wake up and say “yes I have firmly held religious beliefs”?

For example, your conviction that there are no gods and that religion is superstitious myth is so firmly held that it prohibits you from employing people who base their actions on imagined magical consequences rather that empirical evidence. Such people evidence a lack of objectivity needed to succeed in a competitive market.

For God’s sake, people, take advantage of what’s being handed to you on a silver platter.

(and for what it’s worth, it would benefit people of faith to recognize beliefs about no gods is as much a religious belief as one that believes in one god or thirty)

Sandhorse
March 16th, 2012 | LINK

Tim, your last comment took the words right out of my mouth…so to speak.

Ben In Oakland
March 16th, 2012 | LINK

Timothy, as Koschei the Deathless would say, if he weren’t so fictional,

What are religious beliefs to me, who made things as they are?

Embarcadero
March 16th, 2012 | LINK

It’s simple: they haven’t thought this through.

Priya Lynn
March 16th, 2012 | LINK

Timothy said “it would benefit people of faith to recognize beliefs about no gods is as much a religious belief as one that believes in one god or thirty)”.

A religious belief is a belief that accepts the existence of god(s) or the supernatural. Atheist beliefs are not religious beliefs they are beliefs about religion. Atheist beliefs are no more religious beliefs than abstinence is a sex position.

Ben In Oakland
March 16th, 2012 | LINK

“Atheist beliefs are not religious beliefs they are beliefs about religion.”

Imitation is the sincerest form of plagiarism. May I steal it?

Priya Lynn
March 16th, 2012 | LINK

By all means, do so Ben.

Blake
March 16th, 2012 | LINK

Pryia, would a First Church of Christ-Atheist suffice?

There’s nothing quite like repression to build those bonds & kick-start a new religion.

Regan DuCasse
March 16th, 2012 | LINK

Again, fundamentalists are mashing up religious freedom with religious AUTHORITY.
One’s religious freedom is based on a standard that cannot interfere with the free will, association and equal rights and access of others.
This is a response STRICTLY to homosexuality and gay people. There has been little, or none similar responses to anyone else who could and does meet the religious standards these people think they are upholding.
At least with Orthodox Jewish neighborhoods at least, they isolate into their own enclaves and neighborhoods. Christians will not do that. They won’t go to their own corners and put up signs or information that can tell anyone else to either stay away or be welcome.
In other words, they don’t give gay people or anyone else the option of AVOIDING them either.

It’s another way of having the cake and eating it too, special rights without any restrictions or sacrifices on THEIR part.
But expecting a group like gay people to BE sacrificed TO that belief.

When NO other citizens have to be.
Gays and lesbians are a universal part of all human life and always have been.
Religion is a CONSTRUCT of various cultures, that’s changed in language, format, levels of inclusion or not over the centuries.
Whereas, gay people obviously are a CONSTANT and unchanging fact of all human life with no choice in existing or integrating into all human life.

So, the deference, when it comes to gov’t protections SHOULD be gay people and NOT the religious.
Who have also shown over the years, to use religion as an abusive means of control and power with tragic and destructive results.
In other words, believers are projecting THEIR religious identity on gay people inappropriately.

And no one gay is trying to gain anything over and above what isn’t already tolerated by believers all the time.
I’ve done it before, but I can cite the main religious taboos that are forbidden or considered directly contaminant of one’s religious purity or value.
Contraception (which is why the main objection is non procreative sex), autopsy (it’s considered gross indecency and unnatural to cut up a dead body), and organ and blood donation. More of the same, that using another person’s body parts contaminates, or cutting up a body that’s dead to the purpose of the living or taking anything from the living is again, grossly indecent.

But we all know that these banned or taboo aspects of life, are essential and have been to the health and well being of not just individuals, but all mankind and mankind’s progress.
So whatever religious taboos people object to when it comes to homosexuality, they need to get OVER IT the way they have all the other issues and respect it.
When it’s all said and done, trying to enforce old world religious taboos in a 21st century we ALL live in and benefit from, is wrong anyway.
Besides, do you hear Jehovah’s Witnesses who reject blood donation, complaining that their religious freedom is compromised because of the Red Cross blood banks or anyone else’s access to such intervention?
Are they trying to KEEP others from using blood for that reason, or have the gov’t shut down blood banks?

No.

So the reasoning behind religious objections to gay equality is so much BS and that’s why. As is interfering the the law abiding and responsible behavior gay people are engaging in.

It’s ALWAYS wrong to expect OTHERS to be sacrificed to someone else’s religious choice. There is all the freedom NECESSARY to be religious, beyond that, it’s NOT a religious reason, but a spiteful one.

James Brunk
March 16th, 2012 | LINK

The language in the bill is taken indirectly from an existing federal law Religious Land Use and Institutionalized Persons Act . Public Law 106-274. IT is the exact same standard that the courts apply to prisoners when considering their relgious free exercise cases. These people are a lot smarter than you think… Read about the law, passed in 200 here:http://en.wikipedia.org/wiki/Religious_Land_Use_and_Institutionalized_Persons_Act

Timothy Kincaid
March 16th, 2012 | LINK

Fortunately for believers, atheists find it more important to define relgious beliefs in a way that excludes them than to actually take advantage of equal application of the law. Kinda sad, but hey we offered.

Timothy Kincaid
March 16th, 2012 | LINK

Blake, I think you just pissed off Mary Baker Eddy. he he

Eric
March 16th, 2012 | LINK

Doesn’t it, amongst other things, legalise polygamy for those faiths that practise it?

Priya Lynn
March 17th, 2012 | LINK

Timothy said “Fortunately for believers, atheists find it more important to define relgious beliefs in a way that excludes them than to actually take advantage of equal application of the law.”.

I wouldn’t lie in order to take advantage of a law.

Darina
March 17th, 2012 | LINK

So will the government have to prove that it has “a compelling governmental interest” in preventing human sacrifice “motivated by a sincerely held religious belief”?

SharonB
March 20th, 2012 | LINK

Apparently the Christianists want special rights.
And, they want to jam it down everyone’s throats!

(See, hypocrisy in action.)

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