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.