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Todd Paris: ‘Religious freedom’ goes over the cliff

By Todd Paris

For the Salisbury Post

Just when you thought it couldn’t get worse, it does.

On March 4, the Salisbury Post published my letter regarding Senate Bill 2, co-sponsored by our own Sen. Andrew Brock. It has been referred to the Senate Judiciary Committee. This proposed law would allow magistrates and deputies and registers of deeds to recuse themselves from assisting marriages contrary to their “sincerely held religious beliefs.” Clearly launched at the U.S. Supreme Court’s recent “un-decision” allowing gay marriage in North Carolina, it was unworkable, set dangerous precedents and placed the courts and other government officials in the position of having to decide the sincerity of other citizens’ religious beliefs. I attempted to extrapolate to the absurd what would happen if this concept was extended from magistrates and registers to the public at large purely as an argumentative technique. Surely, our legislators wouldn’t do that!

Wrong. Twenty-two days after my letter was published, SB- 550 was filed, with Senator Brock co-sponsoring. Its identical counterpart, H.B. 348, was filed two days earlier. Mr. Ford and Mr. Warren are not listed a co-sponsors.

This is titled the “NC Religious Freedom Restoration Act.” It states, “State action shall not burden a person’s right to exercise of religion, even if the burden results from a rule of general applicability, unless it is demonstrated that applying the burden to that person’s exercise of religion in this particular instance: is essential to further a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest.” The bill does not initially appear harmful, as it seems to only apply the U.S. Supreme Court’s “strict scrutiny” test to any infringing act, which is the strictest prevailing legal standard that can be applied.

The “devil is in the details,” or in this case, the definitions. “Exercise of religion” is defined as including, “but is not limited to, the ability to act or refuse to act in a manner substantially motivated by one’s sincerely held religious beliefs, whether or not the exercise is compulsory or central to a larger system of religious belief.” “Person” is defined as, “Any individual, association, partnership, corporation, church, religious institution, estate, trust, foundation, or other legal entity.”

This bill is not just limited to magistrates and registers of deeds nor limited to discrimination of homosexuals. Absent federal law, everyone would be able to discriminate against anyone for any reason, as long as it’s a religious reason. It would ban any state action that “burdens” any person (or business) from discriminating against other individuals for any reason as long as it’s motivated by one’s “sincerely held” religious beliefs.

If the folks that run the corner market start their own religion that does not “believe” in serving African Americans or Caucasians, I guess NC says they don’t have to. If the officer on a domestic call sincerely believes that men should be able to beat their wives and children, well I guess that’s just fine. Determining the difference between mere prejudice, and “sincerely held religious beliefs” will be impossible for the courts to determine.

It goes beyond discrimination. It would be illegal for the state to ban, absent a compelling state interest, any act whatsoever, so long as it’s motivated by a “sincerely held religious belief,” which, of course, is impossible to disprove. The religiously “burdened” do not have to show that their beliefs are “central to a larger system of religious belief.” One merely need make up and change one’s religious beliefs as the situation requires, so long as you are “sincere.”

Since the state may not establish a religion, this statute would likely suffice to protect all kinds of behavior perhaps not intended by its authors. Can the state ban polygamy anymore? Do children really have to attend school? If the Rastafarians need to smoke marijuana as part of their religion, may they be arrested? What sort of acts performed by radical religious extremists of a non-Christian variety may be protected under this law?

I hesitate to posit how absurd this could get for fear that my predictions become a self-fulfilling prophesy or blueprint for the next “bad” bill. Hopefully, less extreme heads will prevail and Senator Brock and other Christian politicians will understand that the legal tinkering they do to advance their own fundamentalist agenda must be applied by the courts to equally advance the cause of sects, cults and religions they may not be so “comfortable” with. Perhaps that argument is the only one that will make sense to them.

Todd Paris is an attorney who lives in Salisbury.

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