Editor, Times-Union: Both David Kolbe in his 4/3/15 “Letter to the Editor” and Gary Gerard in his 4/4/15 “News Views” cite the First Amendment case of Wisconsin v. Yoder as an example of how religious freedom claims are judged in the absence of RFRA protections. This is problematic because Yoder was decided during a different era of religious freedom jurisprudence and does not have the same precedential value it did in the 1970s. Courts analyze the constitutionality of laws using different levels of scrutiny. Under “strict scrutiny” (the standard mandated by RFRA), laws will be upheld if they are the least restrictive means to serve a compelling government interest. Under “rational basis” (the lowest standard), laws will be upheld if the government can merely articulate a rational reason for their existence. When Yoder was decided in 1972, cases implicating the First Amendment’s Free Exercise Clause were analyzed by the courts under the strict scrutiny standard. That changed in 1990 with Employment Division v. Smith, wherein the Supreme Court reversed course and held that generally applicable laws which burden religious practices would receive only rational basis analysis. As has been much discussed in the Times-Union and elsewhere, federal and state RFRAs were a reaction to the Smith case – legislative attempts to restore the strict scrutiny standard that the courts had previously interpreted to be inherent in the First Amendment. The outcome of Yoder survives today as a constitutional matter not because the case implicates religious liberty, but because it implicates another fundamental right: the right to the care, custody, and control of one’s children. In the absence of that parental control angle, and in the absence of a RFRA, the religious freedom argument in Yoder, if heard today, would be decided under a rational basis analysis – and would almost certainly lose. That the strict scrutiny standard used in Yoder is no longer applicable in the federal Free Exercise context underscores the desirability of enacting statutory religious freedom standards at the state level. The courts simply cannot always be counted upon to give appropriate constitutional scrutiny to laws which burden the rights of unnoticed or unpopular religious groups. Indiana’s RFRA, in its original form, ensured that state courts would be required to give all state and local laws which substantially burden Hoosier religious practices – whether they be Amish, Jewish, Muslim, or yes, evangelical Christian – an appropriately high level of scrutiny. I applaud Representative Nisly for voting for it and voting against the impetuous and unnecessary “fix” enacted by the legislature at the behest of excitable business interests. In these morally revolutionary times, it is more important than ever to protect the rights of religious dissenters to freely exercise the dictates of their conscience – or, at the very least, to give them a genuine fighting chance in a court of law. History has shown us time and time again that the failure to do so will only lead to escalating social strife. Austin Rovenstine Warsaw, via email Editor’s Note: Justice Antonin Scalia, writing for the majority in Smith, observed that the Court has never (emphasis mine) held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate. Allowing exceptions to every state law or regulation affecting religion "would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind." Scalia cited as examples compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws. (oyez.org) This does not render the Establishment Clause moot in religious freedom cases. The court didn’t want to allow exceptions to every state law, but it certainly didn’t preclude raising a First Amendment defense in future religious freedom cases. Gary Gerard General Manager
