Kentucky House Bill 279 is now before Governor Steve Beshear. It is up to him to decide if it should or should not be vetoed. The bill itself is coming under a great deal of criticism due to the nature of the bill itself. One of the strongest criticisms is that the bill will give carte blanche to anyone seeking to discriminate based upon the claim of a strong religious belief.
The act reads as follows:
AN ACT relating to construction of the law.
Create a new section of KRS Chapter 446 to specify that government shall not burden a person’s or religious organization’s freedom of religion; protect the right to act or refuse to act on religious grounds; specify that government shall prove by clear and convincing evidence prove a compelling governmental interest in establishing a burden on the freedom of religion; specify what constitutes a burden.
HB 279 – AMENDMENTS
HCS/LM – Retain original provisions, except amend to delete reference to religious organizations.
HFA (1, D. Owens) – Require burden to be substantial; delete language relating to indirect burdens; add language specifying that the section does not affect the grant or denial of an appropriation to a religious organization or a tax exemption for a religious organization; provide that section does not establish or eliminate a defense to a civil action or criminal prosecution under a federal or state civil rights law or local civil rights ordinance.
HFA (2, D. Owens) – Require that the burden to a person’s freedom of religion be substantial.
The bill does not explain what is meant by “a burden on the freedom of relgion”. Overall, this legislation is vague, so it is likely problematic. The Religious Freedom Restoration Act of 1993 has largely been used to avoid issues like the national drug laws restricting the right to use certain drugs for religious ceremonies. In fact, the RFRA has some specific exceptions.
The RFRA states, as exceptions, that “Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”
This is meant to be covered by the Kentucky law’s statement “government shall prove by clear and convincing evidence prove a compelling governmental interest in establishing a burden on the freedom of religion.”
Unfortunately, this law’s big problem is not that it will necessarily directly involve people denying others their rights, but will make it substantially harder to pass comprehensive workplace and housing protections for people since the law can then be challenged in the courts as providing a burden to the people doing the suing.