Does everyone remember the Religious Freedom Restoration Act? Enacted by the US Congress in 1993 and quickly signed into law by President Clinton it was ruled unconstitutional by the Supreme Court in Boerne v. Flores. This didn't end the matter because several states enacted their own versions of the RFRA, all attempting to give religious institutions the ability to ignore generally applicable laws which secular organizations would have to continue adhering to.
Compelling Interests & Religious Freedom
The Louisiana RFRA stated:
A governmental authority may not restrict a person's free exercise of religion, unless both of the following conditions are met:
1) The restriction is in the form of a rule of general applicability and does not intentionally discriminate against religion or among religions.
2) The governmental authority proves that application of the restriction to the person is essential to further a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest...
The key problem in the above text - and in all such bills - is the conflict between the concepts of "general applicability" and "compelling interest." The first concept is quite acceptable - it should prevent a law being enacted that is targeted directly at a religion. However, religious people would still have to follow laws which are aimed at the general public and only incidentally affect religion - fire codes for buildings would be an example of that. The addition of "compelling interest," however, creates a whole new and unacceptable situation.
With this extra condition, the government would essentially set up one set of rules for religious organizations and another, more restrictive set of rules for the rest of society. The government would have to demonstrate "compelling interest" to force a church to adhere to building codes or anti-discrimination laws, but would not bear that burden when dealing with a private business or non-religious group.
In this way, a blatantly discriminatory class of "special rights" for religious groups and believers is created, allowing for a dual system of laws and regulations. Ordinances that apply to everyone and every group would not necessarily apply to religious groups. This places government in the unconstitutional position of favoring religion over irreligion.
It was a breath of fresh air when Justice Stephens wrote in his opinion:
If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an enlargement of the structure... Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. The governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment...
State Level RFRAs
Religious groups have been working quietly and steadily to get state-level RFRAs introduced and passed - and most of the work has been supported by the Coalition for the Free Exercise of Religion, a rather inaccurately named organization. It is with great sadness to note that some groups normally opposed to breaches in state/church separation have come out in favor of these bills. Perhaps the enticement of special legal rights not available to other organizations is greater than their belief in constitutional principles.
It seems that these religious groups hope that at least one of these RFRAs will pass Constitutional muster when (not if) taken to the Supreme Court. Unfortunately, they are pinning their hopes on nothing but bad laws. Fortunately, at least on state has come to realize this: Maryland.
Maryland legislators had the good sense to withdraw their RFRA, citing that it might have "unanticipated consequences." Some officials realized that, as the bill was written, governments faced millions of dollars in lawsuits from challenges to laws affecting everything from jails to schools and property zoning.
Dr. Marci Hamilton, a Professor of Law at the Benjamin Cardozo School of Law, wrote that the bill would "...hand religion a legal tool unavailable to any other entity..." and that "If a church wants to avoid a zoning ordinance, the government must tailor its law to the least restrictive means for that church. If a philosophical bookstore or other business wants to do the same, it does not have the same right..." Roman Catholic officials and lobbyists were "disappointed" at this development, but that's hardly surprising.
RFRAs - state or federal - are wrong and should not be allowed to stand.