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 means, 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.
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.”
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Part 5: A Candid Explanation For "Change"
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