Religious Freedom Restoration Act: Why Doesn’t Utah Have One? [Publius Online]

Recently, Utah Senator Stuart Reid announced that he is working on three bills that are intended to protect religious freedoms in Utah, including implementation of a state-based version of the Religious Freedom Act. 

“We hold these truths to be self-evident, that all men are created equal . . . .” These are the immortals words of the Declaration of Independence. They represent a declaration of eternal, universal truth, and they act as our American moral political compass.

In recent weeks, the need for Utah to implement legislation commonly know as the  Religious Freedom Restoration Act, or RFRA, has increased.  It was born in the wake of the 1990 Supreme Court decision Employment Division v. Smith, which overturned long-standing religious freedom jurisprudence and severely limited constitutional protections for religious freedom. Essentially, after Smith, the government could regulate churches as if they were Chrysler or Ford or Bank of America.

In response to Smith, Congress passed RFRA. The bill attempted to restore the constitutional protections in place before Smith by ensuring the states and the federal government had to prove — among other things — compelling justification for impinging on religious freedom. The Supreme Court, which never likes to be told it made a mistake, declared RFRA unconstitutional as applied to the states.

Americans were left with was a system in which the federal government was held to a high religious-freedom standard, while the states were held to a much lower standard — i.e., it is much easier for the states to deny our religious freedoms. This was not a recipe for success.

Enter state versions of RFRA.

Realizing the Supreme Court had taken away religious freedom protections and had no intention of fixing its mistake, states began passing their own individual RFRAs in the mid-1990s. While these RFRAs vary, their intent is universal: to maximize the religious freedom of state citizens.

Another equally important intent of state-based RFRAs is to ensure state governments do not discriminate against any of its religious citizens, especially those of minority religions.

In the years since Smith, eighteen states have passed a version of RFRA. New Mexico has a RFRA. So does Idaho and Arizona. Connecticut has a RFRA. Ohio just passed a version in 2013. A few short months ago, Kentucky easily overrode the veto of its Democrat governor to pass its RFRA.  Even the liberal bastion Maine is trying to pass a RFRA.

These states are all in stark contrast to Utah, which has no RFRA. No one should want to protect religious freedom more than Utah. No one wants to protect its religious citizens more than Utah. No one wants the government out of churches more than Utah.

No state should be without a RFRA, especially Utah.

Marco BrownMarco is Managing Partner at Brown Law, LLC, a foodie, and the dad of the cutest kid in the world. You can find him at Brown Law and at Eating Salt Lake City


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