(Editor’s note: Terry Boyd also contributed to this post.)
The big question in Frankfort after the General Assembly passed “The Religious Freedom Restoration Act” yesterday is, “Will Gov. Steve Beshear sign it?”
A spokesperson from the governor’s office told us the bill is still going through the final legislative process and isn’t expected on Beshear’s desk until after the legislature convenes on Monday.
If Beshear does sign it, he could trigger a number of legal tests, starting with ACLU of Kentucky. And oddly, he would also be rewarding one of his longtime opponents, opponents who’ve fought the Beshear Administration on casino gaming proposals.
As we reported yesterday, the Religious Freedom Restoration Act – technically, HB 279 – would allow religious Kentuckians, though apparently not agnostic or atheists, to opt out of laws they feel infringe on their beliefs.
To be clear, and we weren’t yesterday, state law never trumps federal law because of Supremacy Clause in the United States Constitution, as Prof. Russell Weaver, professor of law & Distinguished University Scholar at Louis D. Brandeis School of Law, pointed out to us a few minutes ago.
That clause establishes federal mandates – though not federal guidelines – as “the supreme law of the land,” Weaver said.
“If I had to guess, this is about state law” such as Louisville’s Fairness Ordinance, Weaver said. In a situation where someone says the Fairness Ordinance is an affront to their religious beliefs, “and they say, ‘We choose to discriminate,’ that would be permissible (under HB 279,)”
Getting to the specifics, the bill has basically five major provisions:
1) government shall not directly and substantially burden a person’s freedom of religion.2) government shall protect the right to act or refuse to act on religious grounds.3) government shall prove by clear and convincing evidence prove a compelling governmental interest in establishing a direct substantial burden on the freedom of religion.4) government shall specify what constitutes a burden.5) this law does not affect the grant or denial of an appropriation to a religious organization or a tax exemption for a religious organization.
The American Civil Liberties Union of Kentucky may be already lining up legal tests. About 3 p.m. Friday afternoon, the group made the following update on their Facebook page:
“Since HB279 passed last night many of you have reached out to us via social media with questions about legal strategies and assistance. This is a reminder that we cannot provide this type of information via our social media platforms. Please visit the Legal Program section of our website for more information http://aclu-ky.org/content/view/56/67/ or call our legal intake line at 581-1181. Thank you!”
The Family Foundation Factor
If the Governor signs HB 279 into law, he will not only be opening the state up to possible litigation, but he will be rewarding the Family Foundation, his long-time opponent.
The Family Foundation of Kentucky has been the chief interest group lobbying to deny Kentucky expanded casino gaming.
According to The Family Foundation of Kentucky website, the Lexington-based group had originally hoped for a constitutional amendment to “bolster religious freedom,” but the group isn’t complaining with what they got. A status update to their Facebook page this morning about what they termed “GOOD NEWS!”
In addition, the far right Focus on the Family group also is celebrating the Religious Freedom Restoration Act on their CitizenLink website, acknowledging that 16 states have passed similar legislation, most recently Kansas. FOTF uses the example in Kansas of a religious baker refusing to bake a cake for a same-sex event would have standing in court under the act.
Psychologist James Dobson, a longtime opponent to gay rights, founded Focus on the Family.
When we asked the Louisville Metro Human Relations Commission if they had reached out to the governor’s office about vetoing HB279, Executive Director Carolyn Miller-Cooper wrote us back: “We are working with our partners on this issue.”
The bill passed the senate with 29 “yeas” and 6 “nays.” (It passed the House last week with and 82-to-7 vote.)
Thursday night’s no votes were Sen. Perry Clark (D-Louisville), Sen. Denise Harper Angel (D-Louisville), Sen. Morgan McGarvey (D-Louisville), Sen. Gerald Neal (D-Louisville), Sen. and Minority Whip Jerry Rhoads (D-Madisonville) and Sen. Kathy Stein (D-Lexington). We had expected McGarvey’s dissent from the statement he provided to us Thursday. Rhoads and Clark had already voted against the bill once as it escaped committee Wednesday.
Three Republican senators didn’t vote on the bill. They were Sen. Julie Denton, Sen. Jimmy Higdon (R-Lebanon), and Sen. Alice Forgy Kerr (R-Lexington). We asked all three why they didn’t vote, only one has responded so far.
Higdon wrote us:”I was out of the Senate Chamber during the vote .”