The Kentucky legislature voted this week to override a governor veto on a bill that, critics warn, gives every bigot free license to discriminate by pretending it’s their sincerely held religious belief.
Introduced on February 7, the Religious Freedom Act, House Bill 279, carves out in law that the “government shall not burden a person’s or religious organization’s freedom of religion” and that the government must “protect the right to act or refuse to act on religious grounds.”
Furthermore, the bill requires the government to “prove by clear and convincing evidence” and “a compelling governmental interest” that any move to “establish a burden on the freedom of religion” is necessary. The key problem is the bill makes no attempt to define any of the above terminology as to what constitutes “evidence” or a “substantial burden.”
The ACLU has a detailed overview of how these so-called “religious exemptions” are used across America large to small scale, and how they seem to particularly target women employees and LGBT people to deny reproductive health care and to deny services, employment and housing.
Understandably, a number of groups have voiced severe reservations about the bill, including The Kentucky Religious Coalition for Reproductive Choice, PFLAG, Lexington Fair Housing Council, and Louisville Atheists and Freethinkers.
Despite this, the act originally steamrollered its way through the state’s legislature only to fall at the last hurdle when Governor Steve Beshear (D) issued a veto, wherein he cited the potential implications of the bill:
I value and cherish our rights to religious freedom and I appreciate the good intentions of House Bill 279 and the members of the General Assembly who supported this bill to protect our constitutional rights to practice our religion. However, I have significant concerns that this bill will cause serious unintentional consequences that could threaten public safety, health care, and individuals’ civil rights.
The Republican-controlled legislature ignored Beshear’s reservations and, with the house voting 79-15 and the Senate 32-6, they managed to override the veto.
Supporters have said that this legislation simply follows the federal legislation like the Religious Freedom Restoration Act (RFRA), however the federal legislation reads much narrower than the vague language used in HB 279 as it concerns itself specifically with free exercise of religion. Even then, the RFRA was deemed unconstitutional in City of Boerne v. Flores, though it continues to be enforced in some cases, demonstrating how problematic this kind of legislation has been when squared against civil rights.
Potentially, critics say, the bill’s reach could be absolutely devastating. It could, for instance, be used in schools to undermine science, health and social studies education; it could be used to cloak those within religious groups who may have shielded abusers; and it could also be used to mask other forms of discrimination in the employment and public accommodations sectors such as anti-gay discrimination and racism.
Governor Bashear said it best in his veto message, opining, “As written, the bill will undoubtedly lead to costly litigation.”
Costly but, sadly, necessary.
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