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Maligned Indiana Law Uses Supreme Court Language

Posted by brent on Wednesday, April 1st, 2015

What's up with the hue and cry over Indiana's new law attempting to protect the free exercise of religion? What no reporter or news agency I have seen will tell you is that the law echoes the words of the US Supreme Court setting the rules for "strict scrutiny" of laws that could restrict ANY "fundamental liberty", including First Amendment freedom of speech. Indiana's lawmakers copied language from the federal Religious Freedom Restoration Act of 1993 into their much-criticized state law. See 42 U.S.C. § 2000bb through 42 U.S.C. § 2000bb-4. The "compelling government interest", "least restrictive" and other catch-phrases of these two similar laws USED TO BE applied to the free exercise of religion with the "strict scrutiny" test for laws burdening religion. Called in its day the "Sherbert Test", these were controlling case law beginning in 1963 with Sherbert v. Verner, 374 U.S. 398, and also Wisconsin v. Yoder, 406 U.S. 205 (1972). At least that was the case until Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), which from my perspective tossed the free exercise clause of the First Amendment under the judicial bus just so a couple of workers who wanted to practice Peyote-fueled Native American religious ceremonies could be denied unemployment benefits because they were fired (From a drug rehab center, no less!) for using hallucinogenic drugs. Justice Scalia wrote the majority opinion, but I believe that Justice O'Connor's dissent was the more correct analysis. Although the Smith decision was supposed to be limited to being allowed to receive government benefits, and not about prosecution for drug crimes, we can still conclude that for about 25 years now, some 1st Amendment rights are more "equal" than others. No apologies to Mr. Orwell. *** If you don't know what I mean, PLEASE read George Orwell's "Animal Farm." It is quite a telling indictment of how Communism can deteriorate into garden-variety despotism. Even more impressive is that Orwell was quite the Socialist and consistently denounced all forms of totalitarianism.

Category: General Principles of Law


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