Let me begin by saying that I am in favor of the goals of the RFRA both federally and the bill just recently passed in my home state of Indiana. I do not think that individuals or owners of private businesses should be forced to compromise their religious beliefs to accommodate the social cause of the day.
The problem I have is that once again conservatives feel the need to use legislation that is subject to being overturned to reinforce rights that are clearly established in the Constitution. Rather than assert the Constitution, which requires an amendment process to change, we are placing the issue in common legislative bills that can be overturned at any time through subsequent legislation. If, for example, Indiana voters elect new representatives that disagree with the RFRA, suddenly the concept of the right to live according to one’s religious principals is no longer a right. We are shifting the debate from religious freedom as a God-given right to religious freedom as a privilege conferred upon us by a federal or state legislature. In our misguided efforts to reinforce the Constitution, we are actually weakening it.
Even the wording of the RFRA should cause concern for true advocates of religious freedom. It basically states that religious freedoms can only be taken away if the government has a compelling reason for doing so and uses the least restrictive means to do so. To see how this allegedly narrow exception could turn into a gaping hole in the defense of religious freedom one need only look to the abuses of imminent domain whereby private property has been seized not for legitimate public use but instead to facilitate the plans of private developers. Or how about the countless case where private property rights have been forcibly suborned to protect the interests of endangered species? A government that will take your home to protect a spotted white owl or build a waterfront shopping complex is a government that will find no shortage of reasons to take away your religious freedoms.
In the end the opponents of the RFRA will have their way even if the bill stands as law. They will point to the compelling interest of providing equal protection to homosexuals as a reason to infringe upon religious liberty. They will say that the civil rights of homosexuals hold priority over the religious rights of individuals who would seek to deny them goods and services.
Only the Constitution can truly protect religious liberty – and sadly in today’s climate even that is no guarantee. But it is our best defense. Devices such as the RFRA only cloud the issue and weaken the ultimate cause of the God-given right of freedom of religion.