If the U.S. Constitution is the highest law of the land, can a state law rise above it?
No way, says Nick Worner, communications coordinator for the American Civil Liberties Union of Ohio.
Absolutely, says Joseph LaRue, of the Phoenix-based Alliance Defending Freedom, who argues that the First Amendment provides only a “baseline” but that states can pass stronger laws if they choose.
The issue is relevant because of House Bill 376, the Ohio Religious Freedom Restoration Act introduced last week by Reps. Tim Derickson, R-Oxford, and Bill Patmon, D-Cleveland, cosponsored by 40 Republican and three Democratic representatives.
Derickson called the bill “a preventive attempt” to block what he considers further encroachment on expression of religious freedom on issues such as prayer in schools, zoning for churches and public expression of religious faith, such as wearing crosses and displaying Nativity scenes.
Ohio would join 17 other states with religious-freedom laws.
The ACLU of Ohio is still reviewing the legislation, but Worner said the group takes a dim view of laws that breach the constitutionally defined barrier between church and state.
“The Constitution is the supreme law of the land. Whatever a piece of state legislation does, it’s not going to trump the U.S. Constitution,” Worner said. “Individual religious freedom is extremely important, but it’s never been a free pass to impose your religious beliefs on other people.”
LaRue, who helped draft the Ohio bill, agrees with the ACLU that the U.S. Constitution is the law of the land, but adds, “That’s only part of the story.”
“The U.S. Constitution is a baseline,” he said. “States can go above and beyond what the U.S. Constitution provides.”
After the Supreme Court abandoned a higher standard for religious freedom in the early 1990s, the federal government passed a national Religious Freedom Restoration Act in 1993. The court then declared that despite the law, the federal government could not tell states what to do about religious freedom. That set off action in states to pass their own laws.
“What we’ve seen in states without RFRA is an increasing and creeping reduction in religious freedom,” LaRue said. “They are taking away rights of individuals to live their lives in public consistent with their faith.”
LaRue doesn’t think that even if the law were passed schools would be able to display portraits of Jesus, because they can’t show a compelling public interest in religious freedom.
However, he said it could be applied, for example, to a Muslim woman asked to remove her hijab, a religious head scarf, when having her driver’s license picture taken. The state could legitimately require a woman to remove her burka, a garment that completely covers the face, because the state has a compelling interesting in seeing a person’s face on a driver’s license.
The same could not be said for a head scarf, he said.