Does PA Have an Anti-Gay “Religious Freedom” Law?

Questions raised about the wording of a 2002 bill.

A lot has been made of bills in Kansas and Arizona that would give Christian business owners and employees the right to refuse service to customers based on their religious feelings about gay marriage. Via Keystone Politics, though, blogger Tim Stuhldreher suggests that Pennsylvania may already have such a law on the books.

Stuhldreher writes:

But the bottom line is, the legal potential for “gay Jim Crow” already exists in Arizona. In Pennsylvania, too! The commonwealth passed its Religious Freedom Protection Act in 2002. Here’s a bit of it:

Section 4. Free exercise of religion protected.

Section 4. Free exercise of religion protected.

 (a) General rule.–Except as provided in subsection (b), an  agency shall not substantially burden a person’s free exercise of religion, including any burden which results from a rule of general applicability.

 (b) Exceptions.–An agency may substantially burden a person’s free exercise of religion if the agency proves, by a preponderance of the evidence, that the burden is all of the following:

 (1) In furtherance of a compelling interest of the agency.

 (2) The least restrictive means of furthering the compelling interest.

 Section 5. Actions.

 (a) Claim or defense.–A person whose free exercise of  religion has been burdened or likely will be burdened in violation of section 4 may assert that violation against an  agency as a claim or defense in any judicial or administrative

Subsection (b) would appear to give the state a lot of wiggle room to argue a “compelling interest” in enforcing anti-discrimination law. On the other hand, the law quoted above refers the definition of “free exercise” to Article 1, Section 3 ofthe state constitution, which states in part that “no human authority can, in any case whatever, control or interfere with the rights of conscience.” To me, “in any case whatever” sounds like it beats “in furtherance of a compelling interest.”

The law apparently hasn’t been tested to reach as far as Stuhldreher suggests, and even he asks for legal input on whether Pennsylvania beat everybody to the “religious freedom” punch. What say you, legal-minded readers?