December 13, 2017
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Maine senator pulls ‘religious freedom’ bill, clergy rejoice

By Mario Moretto, BDN Staff
Updated:
Mario Moretto | BDN | BDN
Mario Moretto | BDN | BDN
Susan Gilpin, a retired pastor in the United Church of Christ, celebrated witha couple dozen other pastors Wednesday when Sen. David Burns, R-Whiting, announced he'd withdraw his 'religious freedom' bill. Gilpin and the others had arrived in Augusta to protest the bill, which they said would have opened the door for discrimination.

AUGUSTA, Maine — Maine Sen. David Burns will withdraw his ‘religious freedom’ bill because of scrutiny the bill has received and comparisons to the controversial Indiana law that drew national outcry over concerns it allowed for discrimination against gays and lesbians.

Burns has said the bill, LD 1340, was about protecting Mainers’ right to free exercise of religion from unnecessarily burdensome state law.

While he played down comparisons to Indiana’s law, Burns’ bill is nearly identical in substance to the controversial religious freedom law passed recently in that state, which sparked national controversy and debate over whether religious conviction can justify discrimination, specifically against gays and lesbians.

On Wednesday, Burns said his bill was not about discrimination and blamed his critics and the media for preventing even the possibility of a “fair hearing.”

“Opponents of this bill and some in the media have poisoned the well of public discussion,” Burns, R-Whiting, said in a release Wednesday. “They have been guided by an unwillingness to discuss factual information and inaccurate comparisons to the events in Indiana.”

On Wednesday, a handful of clergy members from the United Church Of Christ had planned a protest against Burns’ bill in Augusta. Outside the State House, as they were preparing to begin their event, they learned of Burns’ plans to withdraw the bill. The crowd cheered, with several yelling “Amen!” as they heard the news.

“That’s divine intervention, right?” Pastor Linda Couture of the Andover Church of Christ said.

Susan Gilpin, a retired pastor, said she assembled the group because she believed Burns’ bill would have allowed for discrimination based on religious belief. She had gathered the signatures of 50 United Church of Christ pastors for a petition against the bill.

“I think it’s the work of the Holy Spirit that this bill has been withdrawn,” Gilpin said.

Republican leaders in the Senate, as well as a handful of other GOP lawmakers, had signed on to support Burns’ bill, modeled after similar laws passed at the federal level and in 21 other states, most famously in Indiana.

A similar bill was passed there in March, drawing swift criticism not only from civil rights groups but from business owners who feared the law hurt the state’s reputation — and thus their bottom lines. The pushback was so strong that Indiana lawmakers passed a “fix” to the bill to protect municipal anti-discrimination laws. Indiana recently hired a public relations firm to repair its wounded reputation.

Supporters say the “religious freedom” laws affirm the state’s commitment to the First Amendment by setting a better standard for government intrusions on religious exercise.

But critics, including lawyers with the American Civil Liberties Union of Maine, said religious rights in the state already are protected by the First Amendment, the Maine Human Rights Act and the Maine Constitution.

Burns’ bill would have established that state, county and municipal government cannot substantially burden a person’s free exercise of religion unless it does so in furtherance of a compelling governmental interest — such as public safety — and in the least restrictive way possible.

That’s the high legal standard applied by the U.S. Supreme Court on cases involving the free exercise clause of the First Amendment until the early 1990s, when the court adopted a less strict standard that allowed for incidental infringement on free exercise as long as the law in question applied to everybody, regardless of religion.

Congress passed a law in 1993, the Religious Freedom Restoration Act, or RFRA, which restored the stricter standard. Since then, 21 states have followed suit to pass their own versions of RFRA.

Burns’ bill essentially would have been RFRA for Maine. It would have allowed anyone who believed their freedom of religious exercise was being burdened by the state to file a lawsuit or to claim religious freedom as a defense for breaking a law and established that high bar for the government to clear in order to win in court.

The definition of “substantially burden” contained in the bill is broad, including any law that “directly or indirectly constrains, inhibits, curtails or denies the exercise of religion.” It also defines as burdensome any law that “compels an action contrary to a person’s exercise of religion.”

The latter is what worried many civil rights advocates who expressed concern the bill would have turned back laws that ensure equal treatment for Mainers.

That’s because Maine’s anti-discrimination laws “compel” business owners and employees to serve Mainers of all genders, faiths, sexual orientations, races and ethnicities, regardless of whether their religious beliefs might say otherwise.

Carroll Conley, executive director of the Christian Civic League of Maine, which helped craft the bill, said he was disappointed the bill won’t move through the legislative process.

He contrasted the experience this year with what happened last year, when Burns proposed a similar bill, which was rejected by the Senate.

“The last time this bill came forward, it was appropriately and aggressively discussed, with some who agreed and some who disagreed but not with all this misinformation that came along with the Indiana bill,” he said.

Conley said Burns’ bill was different than Indiana’s because that state’s law said someone who felt their religious exercise was burdened had a cause for legal claim or defense, “regardless of whether the state or any other governmental entity is a party to the proceeding.”

Burns’ bill did not include that clause, and Conley said that means the legal claim or defense created by LD 1340 would only be allowed in cases in which the government was involved — not cases between two private individuals or businesses.

Still, groups such as the ACLU feared LD 1340 would create a legal conflict with the state’s anti-discrimination laws and set a difficult legal bar for the government to clear, allowing religious beliefs to trump those anti-discrimination laws in court.

Oamshri Amarasingham, public policy counsel with the ACLU of Maine, said she was pleased Maine would not have to endure the kind of national scrutiny and boycott threats endured by Indiana.

“Our position remains the same: RFRA is bad for Maine,” she said. “The Legislature rejected a very similar proposal last year, before seeing the free-market response in Indiana and Arizona, and we’re glad Maine won’t have to go through that process.”

EqualityMaine, the state’s leading gay, lesbian, bisexual and transgender advocacy group, said they’d remain vigilant for any other bills that could erode anti-discrimination laws, including the 2012 law to legalize same-sex marriage, which was approved by voters.

“We’ll continue to be watchful for any legislation that could undermine Maine’s Human Rights Act or that would undermine the hard-fought victories of our community,” Elise Johansen, the group’s executive director, said in a statement.

Burns said he will withdraw the bill once it reaches the Judiciary Committee, of which he is the Senate chairman.

Follow Mario Moretto on Twitter at @riocarmine.

 


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