News and Notes – October 2013
By George Kane
Wisconsin’s state constitution provides excellent protection for the separation of church and state, defining it more clearly than the First Amendment to the United States Constitution. Since the state legislature is now firmly in thrall to the religious right, however, both houses have taken up a constitutional amendment to eviscerate that protection.
Article 1, Section 18 now reads:
The right of every person to worship Almighty God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend, erect or support any place of worship, or to maintain any ministry, without consent; nor shall any control of, or interference with, the rights of conscience be permitted, or any preference be given by law to any religious establishments or modes of worship; nor shall any money be drawn from the treasury for the benefit of religious societies or religious or theological seminaries.
This clause has protected secular government since Wisconsin was admitted to the Union in 1848. It ensures the separation of church and state by prohibiting any support for religion from state funds—money deriving from the state’s taxpayers.
The proposed amendment would append the following text to that section:
The right of conscience, which includes the right to engage in activity or refrain from activity based on a sincerely held religious belief, shall not be burdened unless the state provides it has a compelling interest in infringing upon the specific action or refusal to act, and the burden is the least-restrictive alternative to the state’s action. A burden to the right of conscience includes indirect burdens, such as withholding benefits, assessing penalties, or exclusion from programs or access to facilities.
This changes the law completely. If this amendment passes, the state will be forbidden to “burden” anyone’s exercise of religious conscience by “withholding benefits, assessing penalties, or exclusion from programs or access to facilities.”
The Wisconsin amendment is a “model bill” for other state legislatures, just like the “Stand Your Ground” and “Voter Photo ID” laws authored by ALEC, the American Legislative Exchange Council. The “Religious Freedom” Amendment was crafted by Wisconsin Family Action, an affiliate of Focus on the Family. Similar bills have been introduced in Colorado, Nevada, and Kentucky.
Some intended applications of the law are clear. The Assembly’s version of the amendment states that it is needed to reinforce a court ruling that a high school did not have the authority to censor an anti-gay adoption editorial in a school newspaper. It would prevent the state from “burdening” the refusal by pharmacists to fill prescriptions for emergency contraception, such as by requirements that the customers must be referred to another pharmacist or pharmacy. After all, the “religious conscience” of the pharmacists requires them to do whatever they can to deny women products to which they have a legal right. Under the proposed amendment, the state can only act to secure the woman’s right if it can prove that the state has a “compelling interest.”
The Wisconsin-based Freedom from Religion Foundation has listed other expected consequences if the constitutional amendment passes. For example, it would permit employers, by asserting a religious motivation, to pay women less, or discriminate against them in ways that are otherwise prohibited, and deprive them of equal employment opportunity. State employees could refuse to issue marriage licenses to same-sex couples, or even interracial couples, claiming a religious exemption. It could enable students to refuse schoolwork, such as lessons in biological evolution, that conflicts with their religion. It could be invoked to give parents and guardians permission to rely on “faith” and “prayer” rather than carry out their duty to seek medical care for gravely ill children. Perhaps it could even be invoked to exonerate priests who refuse to report child rape.
If this amendment passes, it will turn “religious freedom” into a powerful weapon against the hard-won civil rights of women and gays, and cripple the state’s ability to protect citizens from those who want to impose their religion on others.