Religious Freedom Restoration Act (1993)

Alan E. Brownsteinand Melissa Rogers

Excerpt from the Religious Freedom Restoration Act

1. (a) In general. Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).
2. (b) Exception. Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person—-(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
3. (c) Judicial relief. A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government....

The purpose of the Religious Freedom Restoration Act (RFRA) (P.L. 103-141, 107 Stat. 1488) was to protect religious individuals and organizations against government interference with the practice of their faith. Under RFRA, people who claimed that laws or other governmental action substantially burdened their religious practice could bring a lawsuit against the federal, state, or local government alleged to be causing the problem. In this judicial proceeding, the government would have to demonstrate that its actions served a compelling interest and that there were no less restrictive ways to accomplish its goals. If the government failed to convince the court that its actions burdening religion met this rigorous standard, it would be found to have violated federal law.

BACKGROUND

The constitutional basis for RFRA is the powers provided to Congress in section 5 of the Fourteenth Amendment to ensure that state and local governments do not interfere with the right to exercise one's religion as guaranteed by the free exercise clause of the First Amendment. Congress has enacted many important civil rights laws under its section 5 powers. But RFRA was unusual because it responded directly to a 1990 U.S. Supreme Court decision, Employment Division v. Smith, which sharply limited the scope of constitutional free exercise rights. In passing RFRA, Congress attempted to use a federal statute to restore rights that the Constitution itself had protected until the Smith decision reinterpreted the free exercise clause to withdraw that protection.

The Smith case involved a law prohibiting the possession of peyote, a hallucinogenic drug used by certain Native American groups during religious ceremonies. Because the law was not directed at the religious use of peyote, it could be described as a neutral law of general applicability —in other words, not specifically aimed at religion. But the effect of the law on Native American religions that used peyote was clear: it prohibited people from engaging in a religious ritual.

In two important cases prior to 1990, the Supreme Court had applied the free exercise clause to protect religious practices against neutral laws of general applicability. Most lower courts understood those decisions to mean that the free exercise clause provided some degree of protection to a person's ability to practice his religion against laws of this kind. This protection was not absolute. Often the government had a sufficiently strong reason for enforcing its law to justify interfering with religious practice. It was generally accepted, however, that the free exercise clause applied in such cases provided some protection for religious activities.

In Smith, the Supreme Court held that this commonly accepted understanding of the free exercise clause was incorrect. The Court stated that, except for two very limited exceptions, the free exercise clause provided no protection whatsoever to religious practices prohibited by neutral laws of general applicability. As long as a law did not single out religious activities for special restrictions (for example, a law that prohibited Catholics from attending Mass, or a law prohibiting anyone from using wine in a religious ceremony), the Constitution did not shield religious activities from the burden of the law. This was true, the Court said, even if the law made it illegal for people to obey the most important requirements of their faith.

A wide range of religious leaders, including Christians, Jews, Muslims, Sikhs, and Buddhists, greeted the Smith decision with great concern, as did civil rights activists and legal experts from across the political spectrum. When the Court declined requests to hear the case again, these leaders formed a coalition to work with a bipartisan group of lawmakers on Capitol Hill to draft RFRA.

RFRA IN CONGRESS

In a series of hearings, Congress heard evidence of the immediate impact of the Smith decision. This evidence included descriptions of court decisions applying the Smith rule.

A state government denied an Amish farmer's request to use silver reflector tape on his buggy rather than the bright orange triangle required by the government, which the farmer considered a "worldly," and thus religiously offensive, symbol. Even though the reflector tape was found to be equally effective in preventing traffic accidents, the court rejected his claim. This represented a reversal of an earlier ruling made prior to Smith.Initially a court had ruled that the First Amendment protected the rights of the Old Order Amish to be exempt from the state's requirement that the orange triangles be used. That court stated that the Amish must be allowed to use silver reflector tape or even lanterns, as those alternatives adequately met the state's compelling need for traffic safety while also protecting the Amish people's rights of conscience. In the post-Smith ruling that forced the use of the orange triangles, the court found that the Constitution no longer provided any relief in that situation. It should be noted, however, that the court did issue a new ruling in favor of the Amish under the state constitution.

In light of the Smith ruling, a court reversed its earlier ruling upholding Laotian Hmongs' religious objections to a government-mandated autopsy of a family member.

Another court decision after Smith upheld a zoning ordinance excluding churches from commercial zones while permitting secular (nonreligious) non-profit organizations to be located in such areas.

While RFRA generally had wide support in Congress when it was proposed, some members were reluctant to enact it because they feared that the act might undermine security in state and federal prisons. Some religious practices that would routinely be protected outside of prison—such as holding services that were unsupervised—clearly presented a security risk inside prison, where such services would have to be supervised. RFRA supporters resolved this problem by including language in the legislative history of the law acknowledging that the need for prison administrators to preserve security and order had to be respected. With that issue resolved, RFRA passed Congress with little opposition and was signed into law in 1993.

IMPLEMENTATION

Between 1993 and 1997 numerous RFRA lawsuits were brought in federal and state courts. Prisoners who argued that prison regulations prohibited them from practicing their religion brought many such suits. Several cases involved land-use regulations that made it more difficult to locate a house of worship in a community or regulated the kind of activities religious institutions might conduct in an area. In a particularly controversial group of cases, religious landlords argued that, because of RFRA, they did not have to obey certain civil rights laws that were inconsistent with their beliefs, such as laws that prohibited discrimination against unmarried couples seeking to rent housing.

CRITICS AND SUPPORTERS

Critics of RFRA raised several arguments against the substance and enforcement of the statute. Some claimed that it was never permissible to privilege religion by allowing religious people to ignore laws everyone else had to obey. Others argued that RFRA did not simply restore the old constitutional rule abandoned by the Supreme Court in the Smith case. Taken seriously, RFRA suggested that whenever government burdened religious practice, it must prove that its law serves a vital interest and that there is no alternative way to accomplish this goal other than to enforce the law without exemptions. The Supreme Court had applied this kind of strict scrutiny test in a few free exercise cases prior to the Smith decision, but in most cases it found some reason not to apply the test. In the great majority of free exercise cases brought to the Court, plaintiffs lost their claims. Most important, many state and local governments argued that RFRA was unconstitutional because it exceeded Congress's authority under the Fourteenth Amendment.

Supporters of RFRA responded that religious liberty was a fundamental right that fully deserved the protection provided by this statute. In this view, religion was not some minor interest to be sacrificed for trivial reasons. RFRA properly required states to have a strong justification before they interfered with citizens' religious freedom. Without a law like RFRA, state and local governments often ignored the interests of religious minorities. Under RFRA, states would have to think carefully before denying an exemption from laws that substantially burdened religious practices. Moreover, supporters argued, although the compelling interest test was a rigorous standard of review, it did not prevent courts from carefully balancing the interests of state and local governments against the needs of religious practitioners. Indeed, plaintiffs lost most of the RFRA claims that were litigated in court. Although RFRA supporters acknowledged that RFRA extended beyond the limited free exercise protection the Constitution provided after Smith, they contended that the Supreme Court had never insisted that Congress could do no more than narrowly enforce the prohibitions of the Fourteenth Amendment.

UNCONSTITUTIONALITY OF RFRA

In 1997, the Supreme Court decided in City of Boerne v. Flores that RFRA exceeded Congress's power under the Fourteenth Amendment and was unconstitutional in its application to state or local governments. RFRA could protect the exercise of religion only against federal interference. The Court acknowledged that some state actions that did not technically violate the free exercise clause did, in fact, burden the exercise of religion. In a few such cases, Congress might prohibit those state activities through its power to prevent and remedy constitutional violations. However, according to the Court, RFRA extended far beyond Congress's limited discretion to prohibit state action that did not directly abridge constitutional rights. Furthermore, the Court believed that by subjecting all state laws substantially burdening religious practices to rigorous review, RFRA prevented the enforcement of many state laws that did not come close to violating the free exercise clause.

Even before the Court's decision in Boerne, a group called the RFRA Coalition had encouraged states to adopt their own laws to provide heightened protection for free exercise rights. The coalition was notable because its members—such as the Baptist Joint Committee, the American Muslim Council, People for the American Way, and the National Association of Evengelicals—normally had very different beliefs, and yet they all agreed that state laws were needed. The laws were known as state RFRAs. In the wake of the Boerne decision, the coalition launched a reinvigorated effort to pass state RFRAs. By 2003, more than ten such laws were enacted.

LATER LEGISLATION

After the Boerne case, the Coalition also urged the U.S. Congress to pass the Religious Liberty Protection Act (RLPA), which attempted once again to protect religion by enforcing the compelling interest standard through federal law. RLPA relied principally on two powers held by Congress: 1) its power to regulate many economic transactions that fall under the umbrella of interstate commerce (commerce between one state and another, or that crosses state lines); and 2) its power to offer financial grants to states on the condition that any state accepting those federal funds has to agree to obey certain regulatory conditions. RLPA passed the House of Representatives, but the Senate declined to vote on the legislation. Some civil rights and gay rights groups feared that RLPA would be interpreted to require governments to grant religiously based exemptions from state and local civil rights law prohibiting discrimination on the basis of sexual orientation. This controversy ultimately led to the enactment of more limited legislation, the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA).

BIBLIOGRAPHY

Berg, Thomas C. "The New Attacks on Religious Freedom Legislation and Why They Are Wrong." 21 Cardozo Law Review 415 (1999).

Hamilton, Marci. "The Religious Freedom Restoration Act Is Unconstitutional, Period." 1 University of Pennsylvania Journal of Constitutional Law 1 (1998).

Laycock, Douglas. "The Remnants of Free Exercise." 1990 Supreme Court Review 1.

Laycock, Douglas, and Oliver Thomas. "Interpreting the Religious Freedom Restoration Act." 62 Texas Law Review 210 (1994).

Marshall, William. "In Defense of Smith and Free Exercise Revisionism." 58 University of Chicago Law Review 308 (1991).

INTERNET RESOURCES

The Becket Fund for Religious Liberty on the Religious Land Use and Institutionalized Persons Protection Act. <http://www.rluipa.com/>.

The Pew Forum on Religion and Public Life. <http://www.pewforum.org/>.

Religious Land Use and Institutionalized Persons Act (2000)

Alan E. Brownstein and Melissa Rogers

The Religious Land Use and Institutionalized Persons Act (RLUIPA) (P.L. 106-274, 114 Stat. 803) gives religious institutions increased protection from state and local zoning and landmarking laws that substantially burden their religious practice. It also provides special protection for prisoners and others in governmental custody who wish to exercise their faith. In these contexts, RLUIPA requires the government to demonstrate that any substantial burden it places on religious practice is supported by a compelling interest and that there is no less restrictive way to advance that interest.