ASKED AND ANSWERED: Christopher Lund on religious freedom

By Steve Thorpe Legal News Kentucky Gov. Steve Beshear vetoed a controversial "religious-freedom" bill recently, saying the measure was well-intended but might spark expensive taxpayer-funded court cases and unintended consequences. House Bill 279 would allow someone with "sincerely held" religious beliefs to disregard state laws "unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing" the person's religious freedom. Christopher C. Lund is an assistant professor of law at Wayne State University Law School, where his principal academic interest is in religious liberty. His work has been published in law reviews and peer-reviewed legal journals like the Journal of Law and Religion, as well as interdisciplinary journals such as History of Religions. Thorpe: After vetoing the bill, Gov. Breshear said, "I have significant concerns that this bill will cause serious unintentional consequences that could threaten public safety, health care and individuals' civil rights. As written, the bill will undoubtedly lead to costly litigation." Do you agree with the governor that litigation would result? What kind? Lund: I understand the governor's concerns, but I don't think they are likely. More than half the states already do what Kentucky is considering with HB 279. Sixteen states have passed statutes that look like HB 279 -- some of those statutes have been on the books for more than 15 years. Other states have interpreted their state constitutions to do what HB 279 does. In 1993, Congress itself passed a law exactly like HB 279 (though it applies only to the federal government). There isn't anything scary here. There hasn't been a flood of litigation. People sometimes claim that these laws threaten public safety or health care. But when you look at the cases, that just hasn't happened. Whenever someone comes to me with predictions of dire consequences arising from these laws, I ask for examples of those dire consequences. With half the states having the equivalent of HB 279, you would except some real-life examples of abuse. But no one gives me any examples, which has to mean something. America is built on the idea of religious liberty. If the government is going to interfere with the practice of religion, it should have a good reason. HB 279 requires there to be a good reason. HB 279 requires courts to balance the government's aims with the burden the government is imposing on religion. And if you look hard at the cases, courts strike sensible balances. If anything is surprising about these cases, it's that courts still defer to the government so much of the time. Thorpe: Gay rights and human rights groups have said the bill could be used to challenge local anti-discrimination laws in several Kentucky cities that are intended to protect gays and lesbians. What form might those challenges have taken and do you think they would've been successful? Lund: Challenges to anti-discrimination laws do not happen very often, although they are more likely to arise now than they were in the past. I actually know only of one case where a law like HB 279 has been used to challenge an anti-discrimination law--a case that's now on appeal to the New Mexico Supreme Court. Whether such challenges will be successful or not depends on how judges strike those balances, but I bet a lot of judges will uphold the anti-discrimination laws in question, even under HB 279. In some places, religious organizations should win these cases; probably everyone thinks, for example, that churches should not be forced by the government to ordain gays and lesbians. But to the extent that religious organizations provide commercial services, they will lose these cases. I think there's a lot of agreement on that too. Thorpe: Gov. Beshear said in a news release after his veto that HB 279 is "fundamentally different" than related federal and state laws, "mostly because the vague language of HB 279 lends itself to overly broad applications." Do you agree with his assessment? Lund: No. There are slight differences between HB 279 and the bills that were passed by those other 16 states and by Congress. But all of these laws are slightly different. And HB 279 doesn't seem different in any significant way. Thorpe: Some critics say that the biggest flaw in HB 279 is that it enables individuals to break laws at will so long as they claim that in doing so they are "motivated by sincerely held religious belief." Under the law, the government would bear the burden of disproving the sincerity of that belief. How plausible is it that the sincerity of a belief can be measured? Lund: Existing law already requires that religious believers show they are motivated by sincerely held religious beliefs. HB 279 does not change anything that way. In general, courts are deferential to what people say about their religious beliefs, which is at it should be. But courts have to be able to stop obvious abuses. And when they see potential abuses, they shut them down--courts, for example, will not hear the claim of a prisoner who makes up a religion entitling him to steak and eggs for every meal. Those cases and cases like them are easily dismissed. Published: Tue, May 7, 2013

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