RFRA comes to Ohio

Remember that case where a high school in Ohio grudgingly decided to remove a Jesus portrait that was in the hallway under threat of a federal lawsuit that it violated the Establishment Clause?

Via reader Bob, I heard that the Ohio legislature is proposing to pass a law HB 376 that would be the state version of the federal Religious Freedom Restoration Act that I wrote about earlier, that requires the government to have a “compelling interest” when it comes to taking “any action that directly or indirectly constrains, inhibits, curtails, or denies the exercise of religion by any person or compels any action contrary to a person’s exercise of religion” and that it should take the least restrictive route to doing so.

This move is clearly meant to combat earlier court rulings that have prevented governmental actions that seemed to endorse religious views. Clearly proponents hope that this law will enable them to bring religion back into public schools and other public arenas. As I said, RFRA and the Free Exercise clause of the First Amendment seem to be the new strategy of religious people since the Establishment Clause has not been going too well for them.

Rep. Tim Derickson, a Republican from Oxford and one of the co-sponsors, called the bill introduced yesterday “a preventive attempt” to block further encroachment on expression of religious freedom. He cited examples such as prohibition of prayer in schools and public places, zoning issues for churches, and public expression of religious faith, such as wearing crosses and displaying Nativity scenes.

Asked if the law, had it been in effect, would have affected recent cases where Ohio schools were forced to remove pictures of Jesus, Rep. Bill Patmon, D-Cleveland, said, “You would have a better opportunity of keeping Jesus up.”

“A court being asked to remove Jesus in a manger would have to prove it is in government’s interest,” Patmon said.

This move may be redundant. Reader Bob helpfully pointed me to this 2000 ruling by the Ohio Supreme Court in an earlier case Humphrey v. Lane et. al, where they said that “Under Section 7, Article I of the Ohio Constitution, the standard for reviewing a generally applicable, religion-neutral state regulation that allegedly violates a person’s right to free exercise of religion is whether the regulation serves a compelling state interest and is the least restrictive means of furthering that interest.” In other words, RFRA language is already part of the Ohio Constitution.

It should be noted that the actual wording of the Ohio constitution does not explicitly use the RFRA language but the Ohio Supreme Court had ruled in earlier cases that the more expansive language of the religion clauses of the Ohio constitution did imply that.

In arriving at its decision, the trial court employed the constitutional analysis set forth by this court in In re Milton (1987), 29 Ohio St.3d 20, 29 OBR 373, 505 N.E.2d 255, and State v. Whisner (1976), 47 Ohio St.2d 181, 1 O.O.3d 105, 351 N.E.2d 750 . Under those decisions, the state cannot infringe on a sincerely held religious belief unless it shows a compelling state interest and also shows that the interest was furthered by the least restrictive means available. (Page 6 of Humphrey v. Lane et. al,)

I don’t think this particular strategy will work. While state constitutions can provide more but not less freedoms than the US constitution, in any direct conflict between the two, the US constitution wins. Furthermore, there is nothing in this law that is new.

What I see happening is that RFRA is going to be increasingly used to try and insert religion back into the public square and it will be interesting to see how courts balance the Free Exercise clause with the Establishment Clause.


  1. Chiroptera says

    Furthermore, the intent of the RFRA is to prevent the state from interfering with private citizens’ free exercise of religion; it is not, as in the case of public schools, a tool that can be used to allow local governments to promote the establishment of religion. It sounds like the promoters of this have the idea of the RFRA exactly backwards.

  2. Matt G says

    We must always remember that when they talk about the free expression of religion, they really mean the free expression of Christianity. There’s a line from The Simpsons in which Rev. Lovejoy expresses his support of religious freedom by saying that everybody is free to worship Jesus in their own way.

  3. raven says

    The christofascists should be careful what they wish for.

    RFRA was first used to support the rights of American Indians to use peyote. It has also been used to support the rights of a religious group to use Ayahuasca, a South American hallucinogen.

    Court Says Ayahuasca a Religious Freedom – MIQEL.com
    www. miqel. com/entheogens/ supreme_court_ayahuasca_tea.html‎

    U.S. Supreme Court Says Church Can Use Hallucinogen … the court said the 1993 Religious Freedom Restoration Act protects the church, … UDV, as the church is known, mixes Christian theology and indigenous South American beliefs.

    It’s also been tried to legalize cannabis as a sacred sacrament. There are also religious groups that used or may still use LSD as a sacrament. As odd as this seems to us in the USA, religious use of psychoactive drugs has an ancient history. In fact, the xian churches still use one, alcohol ritually.

    I can see how well this will work in Ohio schools. Half the student body will show up once in while flying on peyote, Ayahuasca, marijuana, LSD, or drunk on christ’s blood wine.

  4. raven says

    To continue, the fundie death cultists never seem to realize that there are other religions. In fact, they are a minority even among xians. Xians only make up 28% of the world’s population.

    There are thousands of religions and thousands of gods. WIth new ones forming every year.

    Under Ohio RFRA, I suppose we can see:

    1. Moslem students wearing burkas and demanding the right to pray to Mecca five times a day in the school provided Mosque. With strict gender segregation.

    2. The Aztec’s will want a flat topped pyramid for their human sacrifices to keep the sun coming up. Dio de los Muertos will be celebrated by kids wearing skull masks and robes.

    3. The Flying Spaghetti Monsterists will demand the right to wear their sacred hats, colanders, and all pasta served in the school cafeteria will have to be consecrated by one of their holy people.

    4. I’m not sure what the Pagans and Wiccans will need. They might get away with pictures of their gods, Odin, Thor, Freya, and so on, right next to jesus, Brahma, and Buddha.

    5. I’m not sure what the Scientologist kids will want either. Maybe a picture of Elron Hubbard next to jesus will do.

  5. Wylann says

    There needs to be a muslim equivalent to a jeebus portrait. Then again, I foresee the FSM making an appearance at schools across the state. 🙂

  6. mnb0 says

    Yup. Thus the win-win strategy for atheists is to demand free expression for pastafarianism as well.

  7. mobius says

    It seems to me that the original intent of the RFRA was to protect the individual’s practice of religion. However, in this new interpretation that the Religious Right is trying to use, they are try to say it allows for one to impose his religious practices upon others. That, IMHO, would not fit at all with the intent of RFRA. But then, such people as the Religious Right aren’t worried about original intent. What they care about is imposing their religion upon everyone they can.

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