Loophole in the Oklahoma Religious Freedom Act

The Oklahoma Religious Freedom Act states in part:

§51-253.  Burden upon free exercise of religion.

A.  Except as provided in subsection B of this section, no governmental entity shall substantially burden a person’s free exercise of religion even if the burden results from a rule of general applicability.

B.  No governmental entity shall substantially burden a person’s free exercise of religion unless it demonstrates that application of the burden to the person is:

1.  Essential to further a compelling governmental interest; and

2.  The least restrictive means of furthering that compelling governmental interest.

The law says that “Substantially burden” means to inhibit or curtail religiously motivated practice. It defines “Exercise of religion” as the exercise of religion under Article 1, Section 2, of the Constitution of the State of Oklahoma, the Oklahoma Religious Freedom Act (referring to itself), and the First Amendment to the Constitution of the United States.

It seems that this law says that the Oklahoma State Government cannot inhibit your free exercise of religion unless it is in the best interest of the government to do so.

The law defines “Exercise of religion” as the exercise of religion under Article 1, Section 2.

Section 1 Article 2 of the Oklahoma Constitution reads:

Religious liberty - Polygamous or plural marriages.

Perfect toleration of religious sentiment shall be secured, and no inhabitant of the State shall ever be molested in person or property on account of his or her mode of religious worship; and no religious test shall be required for the exercise of civil or political rights.  Polygamous or plural marriages are forever prohibited.

This article of the state constitution does not make any reference to the fact that the government cannot stop you or impede you from free exercise of religion, only that you cannot be harmed or mistreated because of how you worship. 

We will notice that §52-253 says that “Except as provided in subsection B of this section, no governmental entity shall substantially burden a person’s free exercise of religion”.  Section B then declares that the exception is when in the best interest of government and the least restrictive means of furthering government interest. 

The bill also mentions the US Constitution in defining “Exercise of religion”.  Of course we know that the First Amendment states Congress shall make no law prohibiting the free exercise of religion. However, regulations can be established that are not congressional laws exactly, not a part of US Code or Oklahoma Statutes, which may impede the exercise of religion. 

In order to close these loopholes the law could be amended so that Section B of §51-253 is repealed and Section A would simply read “No governmental entity shall substantially burden a person’s free exercise of religion even if the burden results from a rule of general applicability.” This covers both laws established and regulations passed in the affirmation of an individual’s inherent right to worship as and who they desire.