The History and Impact of Religious Freedom Restoration Acts

The 1993 Religious Freedom Restoration Act (RFRA) establishes a legal standard attempts to balance free exercise of religion with the wider needs of society.

(a) 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) of this section.

(b) 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.

The full text of the law is here.

Last December, law professor Eugene Volokh published a number of posts related to the RFRA, the first of which explained the background of the act. The following discussion is indebted in large part to professor Volokh’s analysis.

Until the early 1960’s courts allowed legislatures to make any law they wanted regardless of the effect on those with conflicting religious beliefs. If religious objectors wanted an exemption, they had to convince the legislature to explicitly create one for them. The “conscientious objector” provision in draft laws was one such explicit exemption for religious objectors.

In 1963, however the Supreme Court said in its decision on Sherbert v. Verner that people have a basic constitutional right to free exercise, and that the state must have a compelling reason to trample on those rights. In order to impose a substantial burden on a person’s exercise of religion, the state must demonstrate that the law serves a compelling state interest and that there is no less restrictive means of achieving that interest. In 1972, the court reaffirmed this principle in Wisconsin v. Yoder, and you will often see references to the Shebert-Yoder period of free exercise law.

You might think that such a principle gives people carte blanche to do whatever they want under the banner of religious freedom, but that has not been the case. Under the Sherbert model, even in controversial cases involving tax laws or racial discrimination, the courts have most often sided with the state and required religious objectors to comply with generally applicable laws. Objectors rarely win.

In 1990, however, the Supreme Court’s decision in Employment Division v. Smith reestablished the pre-1963 rules. If a law did not explicitly discriminate against a religious belief, but generally applied to everyone regardless of their religion, it was valid. There was a broad consensus across the political spectrum that Smith was wrongly decided and that the Sherbert model better respected the constitutional value of religious freedom. Even the ACLU rejected Smith and supported the passage of the RFRA. In consequence, the RFRA passed in 1993 by a unanimous vote in the House and by 97-3 in the Senate.

Congress noted that “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise” and stated that “governments should not substantially burden religious exercise without compelling justification.”  It observed that in Smith, “the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion” and it asserted that “the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.“ [Quotes from 42 U.S. Code Chapter 21B]

The RFRA was a “restoration” in the sense that it reestablished the Sherbert-Yoder model and gave religious objectors the opportunity to argue their cases for religious freedom in court. Objectors must still establish that the law imposes a substantial burden on their exercise of religion. The government can still show that the law is the least restrictive means of serving a compelling government interest.

As previously mentioned, religious objectors rarely prevail even under the Sherbert model of legal theory. Where they have prevailed, the RFRA has often protected the rights of minority faith groups, as in the case of a sect with roots in the Amazon basin who wanted to drink a ceremonial tea or native Americans who wanted to wear their hair in a certain way in accordance with their religious beliefs. The Smith case itself concerned the rights of those following a Native American religion to use Peyote in their religious rituals.

The federal courts decided this last case based not on the federal RFRA, but on a state version of the same law that had been enacted in Texas. Congress intended the RFRA to apply across the board, from the federal government on down to the lowest level. In 1997, however, the Supreme Court decided that the RFRA applied only on the federal level. Consequently, a number of states either passed their own versions of the RFRA or their courts have interpreted their existing constitution and laws in accordance with the Sherbert model. Arizona, for example, passed its own version of the RFRA in 1999. The state of Georgia, on the other hand, is among the states that have no version of the RFRA on the books and no authoritative state court decisions on the religious liberty model to be followed by the courts.

Since the RFRA’s passage in 1993, a few basic issues remain outstanding at both the state and federal levels. Do Sherbert protections apply only to individuals or can organizations and businesses assert rights under Sherbert? Can individuals assert free exercise rights in litigation with other individuals? In both cases, the answer is sometimes yes, and sometimes no. Different courts have dealt with these matters differently. Professor Volokh reviewed the relevant legal issues with regard to commercial and corporate entities under the RFRA here and especially here.

Recently, the governor of Arizona vetoed an attempt by Arizona legislators to clarify these issues for its courts by enabling organizations to make free speech arguments, and by allowing them in litigation between two non-governmental entities. Without the amendment, the courts are still free to consider such claims but they are under no obligation to do so. The text of the failed amendment is here.

The proposed amendment proved extremely controversial. People became quite emotional about the bill. Unfortunately, amidst all the emotion, the issues raised by the text of the amendment became obscured.  None of the news reporting accurately reflected the text of the amendment or the current status of free exercise in state law. Most people seemed to have the mistaken impression that the amendment allowed any individual or group to do whatever outrageous thing they wanted to do regardless of the effect on other people or society, as long as they could come up with a religious pretext for doing so. That has not been the effect of RFRA-type legislation. I’m quite certain that had the amendment been enacted, it would not have achieved what some supporters hoped or many detractors feared. The legal principles of Sherbert are still present in Arizona law; there’s just a little more ambiguity about the context in which they can be applied. And recall that simply allowing an argument to be presented in court does not guarantee that the arguer will prevail. The odds are still against the religious objector.

Prior to the veto, a number of law professors wrote to the state’s governor in an attempt to clarify the legal issues for her. The letter provides an excellent description of the history and impact the Religious Freedom Restoration Act and its children in state laws.

The federal government and eighteen states have Religious Freedom Restoration Acts (RFRAs). Another twelve or thirteen states interpret their state constitutions to provide similar protections. These laws enact a uniform standard to be interpreted and applied to individual cases by courts. They say that before the government can burden a person’s religious exercise, the government has to show a compelling justification.

That standard makes sense. We should not punish people for practicing their religions unless we have a very good reason. Arizona has had a RFRA for nearly fifteen years now; the federal government has had one since 1993; and RFRA’s standard was the constitutional standard for the entire country from 1963 to 1990. There have been relatively few cases; if you knew little about the Arizona RFRA until the current controversy, that is because it has had no disruptive effect in Arizona.

SB1062 would amend the Arizona RFRA to address two ambiguities that have been the subject of litigation under other RFRAs. It would provide that people are covered when state or local government requires them to violate their religion in the conduct of their business, and it would provide that people are covered when sued by a private citizen invoking state or local law to demand that they violate their religion.

But nothing in the amendment would say who wins in either of these cases. The person invoking RFRA would still have to prove that he had a sincere religious belief and that state or local government was imposing a substantial burden on his exercise of that religious belief. And the government, or the person on the other side of the lawsuit, could still show that compliance with the law was necessary to serve a compelling government interest. As a business gets bigger and more impersonal, courts will become more skeptical about claims of substantial burden on the owner’s exercise of religion. And as a business gets bigger, the government’s claim of compelling interest will become stronger.

Arizona’s RFRA, like all RFRAs, leaves resolution of these issues to the courts for two related reasons. First, it is impossible for legislatures to foresee all the potential conflicts between the diverse religious practices of the many faiths practiced in Arizona and the diverse array of regulations enacted by the state and all its agencies, counties, municipalities, and special purpose districts. And second, when passions are aroused on all sides, as they have been in this case, it becomes extraordinarily difficult for legislatures to make principled decisions about whether to make exceptions for unpopular religious practices. Courts can generally devote more time to the question, hear the evidence from both sides, and be more insulated from interest-group pressure.

So, to be clear: SB1062 does not say that businesses can discriminate for religious reasons. It says that business people can assert a claim or defense under RFRA, in any kind of case (discrimination cases are not even mentioned, although they would be included), that they have the burden of proving a substantial burden on a sincere religious practice, that the government or the person suing them has the burden of proof on compelling government interest, and that the state courts in Arizona make the final decision.

A number of states are thinking about adding RFRA type laws to their books, but not all proposed state legislation is the same. Some proposed state laws may be legally defective in some way.

As a basic principle, though, the RFRA’s “substantial burden,” “compelling interest” and “least restrictive” standards make sense to me. The free exercise guaranteed by the first amendment does not consist solely of the right to go to whatever church you choose. As Mrs. Obama told the African Methodist Episcopal Church assembly in 2012,

Our faith journey isn’t just about showing up on Sunday for a good sermon and good music and a good meal. It’s about what we do Monday through Saturday as well, especially in those quiet moments, when the spotlight is not on us, and we’re making those daily choices about how to live our lives.

Tomorrow: Accommodation of Religious Practices in the Military Services.

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