Don’t we already have religious freedom in Kentucky under the First Amendment to the U.S. Constitution?

Not as much as we did before Oct. 25, 2012, when the Kentucky Supreme Court chose to use a “rational basis” to decide a religious freedom case. This nullified the long held “strict scrutiny” standard for Kentucky courts. When the U.S. Supreme Court chose to use the “rational basis” instead of “strict scrutiny” in a religious freedom case in 1990, Congress passed the Religious Freedom Restoration Act in 1993, which has been the rule of law for federal courts ever since. It is now up to the General Assembly to act to re-establish this for our state and local courts.

Definitions:

Strict scrutiny - the legal standard for religious freedom cases that requires the government to first prove that it has a “compelling interest” and then once proved to only use the “least restrictive means” to protect that interest.

Rational basis - the legal standard for religious freedom cases that requires the government to only have “a reason” to restrict liberty.

How would the Religious Freedom Act change things?

It would re-establish the “strict scrutiny” standard which effectively puts the burden of proof back on the government. It would once again secure the religious freedoms that Kentuckians have traditionally enjoyed. Legislators all recognize the potential unintended “collateral damage” of statutes. Similarly legislators have the authority and responsibility to guide the judicial system so that its rulings don’t cause collateral damage (in this case infringement of religious freedom). With the Religious Freedom Act, religious liberty in Kentucky will be better preserved.

Will the Religious Freedom Act (the “strict scrutiny” standard) give new freedoms to religious people or groups?

No. The free exercise of religion was established when the U.S. Constitution and Bill of Rights were written, even before the Kentucky was a state. In 1938, the U.S. Supreme Court established “strict scrutiny” as the standard of legal scrutiny to be used in cases where Constitutional liberties were being threatened. “Strict scrutiny” has proven to be a reliable and effective standard, and has only deviated from on the federal level in the above-mentioned 1990 case where Congress re-asserted it as the nation’s religious liberty plumb line.

For more information, click above on Action Center -> Legislative Policy Papers