Religious freedom in Maryland Unnecessary bill: Courts are responsible for striking balance between church and state.

March 15, 1998

IN AMERICA, it is the business of the courts to interpret the constitutional right to freedom of religion and strike a balance between the beliefs of individuals and government's need to ensure that society functions in a safe, orderly fashion.

Until a Supreme Court ruling in 1990, little dissent arose about the standard for achieving that balance: Government could not, except in situations involving schools and prisons, impose a substantial burden on religion without a compelling interest.

It was, and is, a good standard. Supporters of the proposed Religious Freedom Act before the General Assembly seek to trespass onto the courts' turf by legislating this standard in Maryland. They fear the 1990 Supreme Court ruling giving Oregon the right to bar the use of the drug peyote for religious purposes. This was a reasonable ruling because religious groups should be subject to laws that apply to everyone -- the "general applicability" rule.

But religious interests do not want the 1990 decision to become the standard by which state courts interpret their own constitutional provisions. The bill before Maryland's General Assembly seeks to pre-empt our courts by legislating religious protection.

As written, the measure goes far beyond rights protected before 1990. It would wreak havoc on every government body in Maryland. Proposed amendments would make it much more palatable; essentially, the measure would codify the pre-1990 standard.

Still, it is not the legislature's business to establish statutory religious rights, nor is there reason to fear the courts would act irresponsibly. Maryland courts have consistently interpreted our constitution to mean government must prove a compelling interest to justify intrusion into religious conduct. Using laws to subvert the judicial system's power to interpret constitutional questions amounts to a violation of separation of powers.

ZTC The bill would invite lawsuits by providing for damages. It would contradict the Supreme Court's "general applicability" ruling, which closed the door to dubious challenges involving schools, land use and prisons. After Congress passed a 1993 law (since deemed unconstitutional) that purported to restore the pre-1990 standard, churches claimed immunity from zoning laws, Sikhs argued successfully that their children must carry 7-inch knives to school and prison inmates filed hundreds of suits claiming the religious right to use drugs or have special diets or special dress.

Marylanders' religious freedom is not in danger. This bill is unnecessary. It could have negative consequences supporters never intended.

Pub Date: 3/15/98

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