An interesting debate is going on in New York state, where a Religious Freedom Restoration Act (RFRA) has been proposed in the state legislature. Like all RFRAs, this law would grant exemptions from generally applicable laws if those laws restrict religious freedom and would prescribe a standard for courts dealing with free exercise claims:
A PERSON WHOSE RELIGIOUS EXERCISE HAS BEEN BURDENED IN VIOLATION OF THIS SECTION MAY ASSERT THAT VIOLATION AS A CLAIM OR DEFENSE IN A JUDICIAL PROCEEDING AND OBTAIN APPROPRIATE RELIEF UNLESS THE GOVERNMENT ACTION:
(A) IS IN FURTHERANCE OF A COMPELLING GOVERNMENTAL INTEREST; AND
(B) IS THE LEAST RESTRICTIVE MEANS OF FURTHERING THAT COMPELLING GOVERNMENTAL INTEREST.
Pretty standard RFRA language. The bill is apparently supported by Gov. Spitzer, but there is also rival legislation on the way:
In the Assembly, more than 40 members have signed onto a bill introduced by Speaker Sheldon Silver, D-Manhattan. It includes provisions not in the governor’s bill — it would prohibit using religious protections to argue against enforcement of anti-discrimination and health care access laws.
This alternative would provide exemptions from the RFRA exemptions, not allowing religious freedom to be invoked to get around laws against employment discrimination or laws that require the dispensing of birth control, among other things.
More general opposition is coming from the Institute for Humanist Studies, which argues that granting exemptions from facially neutral laws to religion amounts to discrimination against the non-religious:
Meanwhile, the humanists, who advocate on behalf of 1.9 million nonreligious New Yorkers, said granting special protections for religious practice would discriminate against people who don’t practice religion.
“By creating a two-tier standard of law, which gives special rights to religion, (the legislation) may embolden people to start using religion as an excuse to break laws that were made to protect society,” Jennifer Lange of the Institute for Humanist Studies said. “This is a ‘Religious Excuse Act.’”
The solution seems obvious to me: apply those standards in court to every law, regardless of whether the right asserted is a religious one or not. This, in essence, is what Randy Barnett means by the presumption of liberty, that every law that restricts any individual right must be the least restrictive means of achieving a compelling state interest. The burden is always on the government to show that a given restriction is justified and narrowly drawn for a constitutional purpose.