If someone cries “Fire!” falsely in a crowded theater and three people are killed in the stampede, that person’s efforts to cover his conduct claiming free speech would fail, and no one would think the ongoing vigilant protection of free speech should be halted because of its attempted misuse.
Freedom of speech and freedom of religion have been joined a long time.
As John Leland, a Baptist evangelist and friend of Thomas Jefferson and James Madison, said, “Let every man speak freely without fear, maintain principles that he believes, worship according to his own faith, either one God, Three Gods, no God, or Twenty Gods; and let government protect him doing so.”
This thinking found its way into the First Amendment of the U.S. Constitution: “Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof; or abridging the freedom of speech. …”
The Georgia Constitution has guaranteed the free exercise of religion since 1777. Shall our protection of freedom of religion be any less vigilant than the other freedoms guaranteed by the First Amendment and the state constitution? I think not, and neither did Congress.
Congress, in 1993, by unanimous vote in the House and a 97 to 3 vote in the Senate — with the support of such diverse religious groups as Jews, Muslims, Catholics and Protestants, and of civil liberty groups such as the ACLU and People for the American Way — passed the Religious Freedom Restoration Act to restore the historical requirement that government must have a compelling state interest to justify interference with our freedom of religion. Congress and these groups wanted to ensure freedom of religion enjoyed the same, vigilant protection safeguarding our other constitutional freedoms.
Why have an RFRA if freedom of religion is embedded in our constitutions? When Congress passes a statute that infringes on someone’s freedom of religion, or when someone’s questionable conduct is clothed under a claim of freedom of religion, it falls to our courts to resolve the dispute using some standard of review. There is no standard of review embedded in our constitutions. RFRA supplies it.
Why pass RFRA again in a state? The federal Religious Freedom act does not apply to state or local laws, and most religious liberty disputes arise over state and local laws. Therefore, each state must decide what protection it will afford its citizens’ freedom of religion.
Over the last 20 years, RFRA has come under attack out of fear it suborns bigotry under the guise of religious freedom. The 19 states that have passed their own Religious Freedom acts have not become havens for widespread bigotry. RFRA is not a stalking horse for bigotry, nor am I a stalking horse for the religious right. But I love our liberty.
Whether the General Assembly passes the Georgia Religious Freedom Restoration Act is a decision for our legislators. But the debate should be, by what standard shall our freedom of religion be protected? I, for one, want the protection of my freedom of religion on equal footing with freedom of speech and other guaranteed freedoms.
Our courts can protect our free exercise of religion and prevent attempts to misuse it. Supreme Court Justice Sandra Day O’Connor wrote in 2005, “Reasonable minds can disagree about how to apply the Religious Clauses in a given case, but the goal of the Clauses is clear: To carry out the founders’ plan of preserving religious liberty to the fullest extent possible in a pluralistic society.”
We should not sacrifice our religious freedom on the altar of fear, just as we have not sacrificed our freedom of speech because someone might cry “fire.”
Jack N. Sibley is a partner in the Atlanta law firm Hawkins Parnell Thackston and Young.
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