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Monday, March 30, 2015

Are the pending NC discrimination bills a clone of Indiana's? And is Indiana's a clone of the federal law? Yes, only worse. And no. Here's a line-by-liner of all four:

You know there's something afoot when Republican legislators won't talk about a religious freedom discrimination bill to a Fox News affiliate, but that's what happened today when Fox 46, in Charlotte NC, tried to get a comment from the NC House and Senate sponsors of their clone of Indiana's now-famous statute. Indiana's was passed  and signed March 26. The NC bills were introduced in Raleigh on the same day.

Mum's the word, apparently, even as the bills move forward in committees of both houses.

Are the bills the same? Fox 46 wanted to know.


So did Waldo, who summoned me and a bulletin board to his bathside. Typing furiously in his bath, Waldo said- not even looking up- "copy out all three. Let's compare.

So we did. The Indiana law is in bold face, clause by clause. The NC Senate version is italicized. (The NC House version is, word-for-word, the same as the Senate version).

Don't feel like textual analysis? Here's a nice summary, one that- rightly- concludes the NC bills are even worse than Indiana's:

As in Indiana, proponents of the North Carolina Religious Freedom Restoration Act (RFRA) argue the legislation ismodeled on a 1993 law passed by Congress and signed by President Clinton. The federal law proclaimed that the government cannot pass laws that "substantially burden" people's ability to follow their religion, unless the state can prove there's a "compelling interest" in doing so and has no other way to meet that compelling interest.  
In 1997, the U.S. Supreme Court ruled that the federal law applied only to the federal government, spurring a number of states to enact their own RFRA laws- a trend that has grown in the wake of debates over gay civil rights and marriage equality.
However, the measure proposed by North Carolina lawmakers differs from the federal law -- and "religious freedom" laws in most other states -- in at least one key respect: It makes it easier for individuals to claim a law or policy is a threat to their religious beliefs, and to sue to opt out of complying. 
Under the 1993 federal statute and most similar state laws, the person using RFRA has to show that obeying a law -- for example, complying with a local ordinance preventing housing discrimination for a gay couple -- would pose a "substantial burden" to following his or her religious beliefs. 
But the proposed North Carolina bill dilutes that language, requiring that those  claiming their religious liberty is at risk prove only that obeying the law is a "burden" -- substantial or not.Of the 19 other states with RFRA laws, only two -- Alabama and Mississippi -- omit the word "substantial." In the South, existing laws in Florida, Kentucky, Louisiana, South Carolina, Tennessee, Texas and Virginia all include the "substantial burden" standard, as does a proposed (and hotly-contested) measure in Arkansas. 
That small change in wording could have big legal consequences. As conservative legal scholar Eugene Volokh notes, while it's clearly difficult to define what constitutes a "substantial" burden, several courts have used the "substantial burden" test in deciding whether challenges under state and federal RFRA laws are valid. 
Others say that the weak language in bills like North Carolina's sends a dangerous message that such laws can be deployed as a "trump card," allowing religion to be used as a reason to disobey the law. In 2014, the Baptist Joint Committee for Religious Liberty, which supports "religious freedom" laws, sent a letter to state legislators in Georgia condemning a bill (HB 1023) for omitting the "substantial" provision: 
HB 1023 … differs in significant ways from the version of RFRA that the BJC has supported. These differences raise concerns about striking the right balance when religious liberty interests conflict with other important governmental interests, including the prohibition on government establishment of religion. Notably, HB 1023 just says government cannot burden religion -- it doesn't include the important modifier that the burden must be substantial. . . . Without the substantial burden requirement, nearly any state law or regulation could be subject to exemption challenges. While religious liberty is one of our most precious rights, it is not an automatic trump card. 
The North Carolina bills include other language that favors those who claim their religious rights are being infringed. While the federal law and Indiana's state that there must be a "compelling governmental interest" for infringing on religious beliefs, North Carolina's goes a step further, stating there must be a "governmental interest of the highest magnitude" (emphasis added) to justify overriding religious beliefs. 
While "highest magnitude" isn't defined, the Baptist Joint Committee notes this is a "hurdle" not required in the federal law.The future of N.C.'s Religious Freedom Restoration Act is unclear. Gov. Pat McCrory (R) hasexpressed skepticism about the bill. As The Washington Post notes, the vehement reaction against Indiana's measure points to changing public attitudes that make passing such laws more difficult -- and the political fallout more damaging.


Chapter 9. Religious Freedom Restoration
Sec. 1. This chapter applies to all governmental entity statutes, ordinances, resolutions, executive or administrative orders, regulations, customs, and usages, including the implementation or application thereof, regardless of whether they were enacted, adopted, or initiated before, on, or after July 1, 2015.
Article 9...The North Carolina Religious Freedom Restoration Act. Purpose. The purposes of this Article are to ensure that in all cases where State action burdens the exercise of religion, strict scrutiny is applied; and to provide a claim or defense to a person or persons whose exercise of religion is burdened by State action.
Sec. 2. A governmental entity statute, ordinance, resolution, executive or administrative order, regulation, custom, or usage may not be construed to be exempt from the application of this chapter unless a state statute expressly exempts the statute, ordinance, resolution, executive or administrative order, regulation, custom, or usage from the application of this chapter by citation to this chapter.
Sec. 3. (a) The following definitions apply throughout this section: (1) "Establishment Clause" refers to the part of the First Amendment of the Constitution of the United States or the Constitution of the State of Indiana prohibiting laws respecting the establishment of religion. (2) "Granting", used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions. (b) This chapter may not be construed to affect, interpret, or in any way address the Establishment Clause. (c) Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, does not constitute a violation of this chapter.
Sec. 4. As used in this chapter, "demonstrates"means meets the burdens of going forward with the evidence and of persuasion.
Sec. 5. As used in this chapter, "exercise of religion" includes any exercise of religion,whether or not compelled by, or central to, a system of religious belief.
Sec. 6. As used in this chapter, "governmental entity" includes the whole or any part of a branch, department, agency, instrumentality, official, or other individual or entity acting under color of law of any of the following: (1) State government. (2) A political subdivision (as defined in IC 36-1-2-13). (3) An instrumentality of a governmental entity described in subdivision(1) or (2), including a state educational institution, a body politic, a body corporate and politic, or any other similar entity established by law.
Sec. 7. As used in this chapter, "person" includes the following: (1) An individual. (2) An organization, a religious society, a church, a body of communicants, or a group organized and operated primarily for religious purposes. (3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that: (A) may sue and be sued; and (B) exercises practices that are compelled or limited by a system of religious belief held by: (i) an individual; or (ii) the individuals; who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.
§ 147-102. Definitions. The following definitions apply in this Article (North Carolina Religious Freedom Restoration Act): 
(1) Burden. – Any action that directly or indirectly constrains, inhibits, curtails, or denies the exercise of religion by any person or compels any action contrary to a person's exercise of religion, and includes, but is not limited to, withholding benefits; assessing criminal, civil, or administrative penalties; or exclusion from governmental programs or access to governmental facilities. 
(2) Compelling governmental interest. – A governmental interest of the highest magnitude that cannot otherwise be achieved without burdening the exercise of religion. 
(3) Exercise of religion. – The practice or observance of religion. It includes, 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. 
(4) Person. – Any individual, association, partnership, corporation, church, religious institution, estate, trust, foundation, or other legal entity. 
(5) State action. – The implementation or application of any law, including, but not limited to, State and local laws, ordinances, rules, regulations, and policies, whether statutory or otherwise, or other action by the State or any political subdivision thereof and any local government, municipality, instrumentality, or public official authorized by law in the State.
Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability. (b) A governmental entity may substantially burden a person's exercise of religion only if the governmental entity 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.
Sec. 9. A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person's invocation of this chapter.
Sec. 10. (a) If a court or other tribunal in which a violation of this chapter is asserted in conformity with section 9 of this chapter determines that: (1) the person's exercise of religion has been substantially burdened, or is likely to be substantially burdened; and (2) the governmental entity imposing the burden has not demonstrated that application of the burden to the person: (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest; the court or other tribunal shall allow a defense against any party and shall grant appropriate relief against the governmental entity. (b) Relief against the governmental entity may include any of the following: (1) Declaratory relief or an injunction or mandate that prevents, restrains, corrects, or abates the violation of this chapter. (2) Compensatory damages. (c) In the appropriate case,the court or other tribunal also may award all or part of the costs of litigation, including reasonable attorney's fees, to a person that prevails against the governmental entity under this chapter.
§ 147-103. Free Exercise of Religion Protected. (a) 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 6 burden to that person's exercise of religion in this particular instance:  (1) Is essential to further a compelling governmental interest; and  (2) Is the least restrictive means of furthering that compelling governmental  interest.  (b) A person whose exercise of religion has been burdened, or is likely to be burdened, in violation of this Act may assert such violation or impending violation as a claim or defense in a judicial proceeding, regardless of whether the State or one of its political subdivisions is a party to the proceeding. The person asserting such a claim or defense may obtain appropriate relief, including relief against the State or its political subdivisions. Appropriate relief includes, but is not limited to, injunctive relief, declaratory relief, compensatory damages, and costs and attorney fees.
Sec. 11. This chapter is not intended to, and shall not be construed or interpreted to, create a claim or private cause of action against any private employer by any applicant, employee, or former employee.
§ 147-104. Limitations.  (a) Nothing in this Act shall be construed to do any of the following: (1) Authorize the State to burden any religious belief.  (2) Affect, interpret, or in any way address those portions of the First 21 Amendment to the United States Constitution or Sec. 13 of Article I of the 22 North Carolina Constitution that prohibit laws respecting the establishment of religion. (b) Granting government funding, benefits, or exemptions, to the extent permissible under the First Amendment to the United States Constitution or Sec. 13 of Article I of the North Carolina Constitution, shall not constitute a violation of this section. As used in this subsection, the term "granting," used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions. 
§ 147-105. Severability. If any subsection or portion of this Article is declared invalid, that declaration shall not affect the validity of the remaining portions." 
SECTION 2. This act is effective when it becomes law and applies to cases, actions, and causes of action for which the trial court has not entered final judgment as of that date.
Now lets consider the text of the 1993 federal Religious Freedom Restoration Act, cited by Republicans for the usual reason (President Clinton signed it, so there! It's not partisan on us now"). It's codified at 42 U.S.C. 2000bb-4:
(a) Findings
The Congress finds that—
(1) the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution;
(2) laws “neutral” toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;
(3) governments should not substantially burden religious exercise without compelling justification;
(4) in Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and
(5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.
(b) Purposes
The purposes of this chapter are—
(1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and
(2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government.

(a) In general
Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
(b) Exception
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.
(c) Judicial relief
A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.
As used in this chapter—
(1) the term “government” includes a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, or of a covered entity;
(2) the term “covered entity” means the District of Columbia, the Commonwealth of Puerto Rico, and each territory and possession of the United States;
(3) the term “demonstrates” means meets the burdens of going forward with the evidence and of persuasion; and
(4) the term “exercise of religion” means religious exercise, as defined in section 2000cc–5 of this title.

a) In general
This chapter applies to all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993.
(b) Rule of construction
Federal statutory law adopted after November 16, 1993, is subject to this chapter unless such law explicitly excludes such application by reference to this chapter.
(c) Religious belief unaffected
Nothing in this chapter shall be construed to authorize any government to burden any religious belief.
Nothing in this chapter shall be construed to affect, interpret, or in any way address that portion of the First Amendment prohibiting laws respecting the establishment of religion (referred to in this section as the “Establishment Clause”). Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, shall not constitute a violation of this chapter. As used in this section, the term “granting”, used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions.

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