The Montana Religious Freedom Restoration Act, or S.B. 215, has passed both chambers of the Republican-controlled Montana legislature and Gov. Greg Gianforte (R) has already declared that he will sign the bill into law.
The bill is similar to other “Religious Freedom Restoration Act” laws, such as the one adopted in Indiana and signed by then Gov. Mike Pence in 2015, before it was eventually revised. Its broad implications could allow for anti-LGBTQ discrimination.
Montana’s bill seeks to allow exemption from state laws if people claim their religious liberties are “substantially burden[ed].” It also “restores” the freedom of religion not treated equivalent to other government protections.
The bill was passed almost entirely by Republicans, with one state Democrat in the Montana House voting in favor and none in the state senate. Not even all Republicans supported the legislation, but there was enough support to pass both chambers.
S.B. 215 cites the Religious Freedom Restoration Act of 1993 (RFRA), a federal law passed with bipartisan support after Native Americans faced discrimination from receiving state benefits due to exercising their religious beliefs, which was allowed by the Supreme Court in Oregon v. Smith.
The RFRA provided that the federal government “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” unless it is absolutely necessary to the government’s function. The Supreme Court deemed enforcement of the law in individual states was unconstitutional in 1997’s City of Boerne v. Flores, paving the way for individual states to enact their own versions because they are authorized to decide how to enforce their own laws.
Since then, many state versions of this act have differed from the original federal law, instead giving exemptions to people to ignore certain laws if they believe it hinders their beliefs. The American Civil Liberties Union (ACLU) of Montana believes this will lead to discrimination against LGBTQ people.
“It’s shameful that Montana legislators have voted in support of yet another bill that will harm LGBTQ Montanans. We know that S.B. 215 will open the door to discrimination. It’s disheartening that the majority of Montana lawmakers would rather invite people in Montana to discriminate against others than to protect equal rights for LGBTQ and other Montanans,” Caitlin Borgmann, the Executive Director of the ACLU of Montana, said in a statement to LGBTQ Nation.
Noting that H.B. 112, a bill to ban trans people from school sports, is still advancing in the legislature, she added: “This discrimination by design is a pattern we are seeing in legislatures across the country. There is no doubt that discriminatory laws like this will harm people, especially trans youth who just want to live their best lives without the government telling them what they can and cannot do.”
“LGBTQ Montanans: we see you, we support you, and we love you. If Governor Gianforte signs these bills into law, we will fight them in court until they are no longer part of our beautiful state.”
The Montana Free Press reports that the Gianforte administration has already supported S.B. 215. Montana Lt. Governor Kristen Juras (R) testified before the Montana House Judiciary Committee during debates on the bill that she believes the proposal “is not a license to discriminate against the LGBTQ.”
Other LGBTQ-advocating groups in Montana including the Center, the Montana Coalition Against Domestic and Sexual Violence, TransVisible Montana, Indigenous Organizers’ Collective, Montana Racial Equity Project, and Montana Women Vote have expressed opposition to the bill.
Several states have passed or considered religious freedom legislation over the last few years, most notably Indiana in 2015. The Indiana law signed and championed by the state’s then Gov. Mike Pence also prevented anything in the state that would “substantially burden” a person’s ability to follow their religious beliefs. The definition of “person” included religious institutions, businesses, and associations.
The law caused so much backlash that Pence had to cancel public appearances and his state GOP openly sought his selection as Donald Trump’s running mate for president so that he wouldn’t run for governor again and risk losing the seat. The legislature eventually revised the law.
South Dakota passed a similar bill into law with Gov. Kristi Noem’s (R) signature in March, becoming the first state to enact this kind of act since Mississippi in 2016.