Back in my Baylor University days, my favorite European history professor had a symbolic gesture he would use when discussing absurd, paradoxical moments in events such as the French Revolution.
“What a world!” he would exclaim, with a cynical laugh, while striking his forehead with the heel of his palm — his own variation on the classic “face palm” gesture.
This is the gesture I would like readers to imagine as I congratulate the Associated Press for a few important examples of basic journalism in a story with this headline: “West Virginia GOP majority House OKs religious freedom bill.”
For starters, the term “religious liberty” wasn’t framed with “scare quotes” in the headline. What a world! Might this have something to do with the First Amendment?
Let’s walk through this AP story and look for what appear to me to be ordinary examples of news coverage. However, in this day and age, basic acts of journalism should be celebrated. Here is the AP overture:
CHARLESTON, W.Va. (AP) — West Virginia’s GOP supermajority House of Delegates passed a bill Monday that would create a test for courts to apply when people challenge government regulations they believe interfere with their constitutional right to religious freedom.
The bill passed after several Democrats expressed concern that the proposal could be used as a tool to discriminate against LGBTQ people and other marginalized groups. Democratic Del. Joey Garcia also asked whether the proposed law could be used to overturn West Virginia’s vaccine requirements, which are some of the strictest in the nation.
A sign of progress? Note that the lede states that the bill created a “test for courts to apply” — not a mandate of some kind. This is a sign of things to come.
Let’s read on.
One of the legislation’s co-sponsors, Republican Del. Todd Kirby, said those questions would be up to the courts to decide — the bill only provides a judicial test for interpreting the law.
The Christian lawmaker provided some examples of instances when the government has, in his view, infringed on residents’ religious rights. One example was vaccination requirements. Another was public school curriculum.
OK, so we have another reference to the “judicial test” concept. Where did that come from?
Hold that thought. Meanwhile, what is with the “Christian lawmaker” language? Why use that vague label, since I would imagine there were liberal mainline Protestants and progressive Catholics on the other side of the votes? Just asking.
A few paragraphs later, readers can see the roots of this legislation.
The bill stipulates that the government would not be able to “substantially burden” someone’s constitutional right to freedom of religion unless doing so “in a particular situation is essential to further a compelling governmental interest.”
In cases where the government can prove to the courts there is a “compelling interest” to restrict that right, government officials must demonstrate that religious freedoms are being infringed upon in “the least restrictive means” possible.
Anyone want to guess the origins of phrases such as “substantially burden” and “compelling interest”? Click here for a .pdf clue.
Again, let’s read on.
At least 23 other states have religious freedom restoration acts like the one being proposed in West Virginia. The laws are modeled after the federal Religious Freedom Restoration Act, signed in 1993 by then-President Bill Clinton, which allows federal regulations that interfere with religious beliefs to be challenged.
Finally, we see a reference to the Clinton White House-era origins of these concepts. I would note that the key is whether government actions interfere with the PRACTICE of religious faith, not mere “religious beliefs.”
I know, picky, picky. Let’s keep reading.
Eli Baumwell, advocacy director and interim executive director of the American Civil Liberties Union of West Virginia, said the 1993 federal law was designed to protect people, especially religious minorities, from laws that affected their ability to engage in personal practices of their faith. He said similar laws that have been passed by states in the years since have been applied very differently.
“Unfortunately, people have seized upon a good idea and turn it a shield into a sword,” said Baumwell, whose organization is opposed to the bill.
Yes, it would have helped to have explained why the ACLU was part of the remarkable left-right First Amendment coalition that once supported RFRA — leading to that remarkable 97-3 vote of approval in the U.S. Senate.
Yes, times change. But that is precisely what readers need to understand.
This raises a rather basic journalism question: Where are the voices of church-state experts — conservatives and some old-school liberals (including some who support gay rights) — who continue to support these basic RFRA tests for court cases? Once again, let me stress: RFRA does not settle these cases, it merely argues that citizens can use pro-First Amendment arguments in court.
As it should, the AP report does a fine job of quoting opponents of this bill. Where are the church-state experts who can offer information and case studies that support the RFRA concepts in the legislation? Shouldn’t they have been included in this discussion, if the goal was to understand the arguments on both sides?
Just asking. This AP story shows some flashbacks to journalism basics. However, did keep readers in the dark when it comes to understanding the views of — a key Poynter Institute terms here — “stakeholders” who remain committed to the principles in that historic Clinton-era legislation.
UPDATE: Oh no, I posted too soon. See this new Associated Press headline: “West Virginia ‘religious freedom’ bill headed to governor.”
Obviously, the “scare quotes” are back. And, once again, zero voices representing the old-school liberal religious liberty coalition from the Clinton era.
FIRST IMAGE: Screen shot from video, “How Far Does Religious Freedom Go?” on the Now This Originals YouTube channel.