Iowa religious freedom bill sets 'highest standard' for government, backers say

Denver Newsroom, Feb 27, 2021 / 15:01 pm

An effort to restore strong religious freedom protections in Iowa has the backing of the state Catholic conference and others who say there should be a high threshold for any state interference with the free exercise of religion.

While the legislation does not mention LGBT issues, LGBT advocates have tried to portray it as harmful and discriminatory.
 
"We support the bill and have supported similar proposals for several years," Tom Chapman, executive director of the Iowa Catholic Conference, told CNA Feb. 26. "Our view is that the bill provides a standard of review for the court when there's a conflict between the First Amendment's protection of free exercise of religion and a law."
 
"This is not a license for anyone to discriminate. It doesn't grant anyone any new rights," Chapman said. "It simply gives people and institutions an argument in court."
 
Iowa's proposed Religious Freedom Restoration Act, numbered S.F. 436, would allow the government substantially to burden religious exercise only if it can prove that there is a compelling state interest and that this burden is "the least restrictive means of furthering that government interest."
 
"What it does is it says that government must be held to the highest standards before it can infringe on a person's free exercise of religion," Republican Sen. Dennis Guth, the bill sponsor, told KCCI News.
 
"I want all people in the state of Iowa to be able to live and work according to their free conscience without having ideas being censored," he said. "During this time of kind of the cancel culture, I think the problem is not so much that people of faith are trying to push their religion on someone else, but that the secular world is trying to force their thoughts on people of faith."
 
The federal Religious Freedom Restoration Act was passed by Congress and enacted into law in 1993, receiving unanimous bipartisan support in the House and passing the Senate by a vote of 97-3. President Bill Clinton signed the legislation.
 
The act was supported by leaders in both parties as a response to the 1990 Supreme Court decision Employment Division v. Smith, in which the court upheld the government in a case involving two Native Americans fired after testing positive for peyote, which they argued they had ingested as part of a religious ritual.
 
The act has played a role in the coronavirus epidemic, with federal courts taking a more sceptical view of public health rules that treat religious gatherings and venues more strictly that similar non-religious activities. The Little Sisters of the Poor have also cited the act in their objections to a federal mandate requiring them to provide employee health coverage of sterilization and contraception, including drugs that can cause abortion, in violation of their religious beliefs.
 
While the federal legislation attempted to require states to have stronger religious freedom protections, the Supreme Court blocked that section of the law. States which desire to return to a high threshold for government burden on religion must pass their own religious freedom legislation.
 
Religious Freedom Restoration Acts have passed in about 20 states.
 
If the Iowa bill becomes law, when a person's free exercise of religion is burdened by state action, he or she may cite the act as a defense in a judicial or administrative proceeding.
 
"Under current law, a court is not required to apply heightened scrutiny when reviewing a law that burdens a person's exercise of religion when such law is generally applicable," said the bill's explanation section.
 
The bill would require courts to apply the "compelling interest" test of Supreme Court precedents like the 1963 ruling Sherbert v. Verner and the 1972 ruling Wisconsin v. Yoder.
 
While religious freedom had strong support in the U.S. in the late twentieth century, the principle has become contentious with the rise of LGBT advocacy and some abortion rights advocacy.
 
Stronger anti-discrimination laws and policies protecting sexual orientation or gender identity have been invoked to shut down Catholic adoption agencies that only place children with a mother and a father or to compel people working in the wedding industry, like florists, photographers, and bakers, to provide their services for same-sex ceremonies.
 
Some Catholic hospitals have come under fire from critics for declining to perform abortions or gender reassignment surgeries. Critics say such refusals constitute discrimination against women or the self-identified transgendered.
 
The Iowa bill does not mention LGBT concerns or abortion.
 
However, Damian Thompson of the group Iowa Safe Schools, which claims to represent 10,000 LGBTQ youth across the state, characterized the bill as "anti-LGBTQ."
 
"It's very distressing for many of our students," he told KCCI News, claiming that mental health problems, risk of suicide, and self-harm have been accelerating "because we're seeing problematic pieces of legislation like these ran all the time."
 
Mark Kende, a constitutional law professor at Drake Law School, contended that the law "allows for discrimination against an already vulnerable group." He said people would assert religious freedom "while hurting people who might want something or a service from those individuals."
 
Kende told KCCI that some states that passed religious freedom bills faced corporate boycotts that cost states millions of dollars in revenue.
 
"Iowa can't afford in the middle of the COVID crisis and the economic downturn to be losing all that business," he said.
 
Notably, in 2015 then-governor of Indiana Mike Pence faced threats of boycotts from CEOs, celebrities, major sports events, and leaders of some city and state governments over a state religious freedom restoration act that mirrored the federal legislation.
 
The proposed federal Equality Act has come under criticism for concerns that it would strip religious freedom protections from people and institutions accused of discrimination.
 
"Instead of respecting differences in beliefs about marriage and sexuality, the Equality Act would discriminate against people of faith," the Iowa Catholic Conference said in Feb. 21 comments about the federal bill.
 
As CNA has previously reported, various advocacy groups like the ACLU and the Center for American Progress and even some academic centers like Columbia Law School's Law, Rights and Religion Project are part of a multi-million dollar social and political change patronage network aiming to limit religious freedom protections where thy conflict with LGBT and abortion rights concerns. Major funders of this network include the Ford Foundation, the Proteus Fund, and the Arcus Foundation.