• Key point. The Religious Freedom Restoration Act provides that a government law or practice that burdens religious exercise is valid only if supported by a compelling governmental interest.
A federal appeals court overturned a lower court decision finding the Religious Freedom Restoration Act to be unconstitutional. The Religious Freedom Restoration Act (RFRA) was enacted by Congress in 1993 to strengthen the first amendment guaranty of religious freedom. RFRA was a response to a 1990 decision of the United States Supreme Court holding that a government law or practice that burdens the exercise of religion need not be supported by a “compelling governmental interest” to be permissible under the first amendment’s free exercise of religion clause. Employment Division v. Smith, 494 U.S. 872 (1990). In so ruling, the Court repudiated a quarter of a century of precedent and severely diluted this basic constitutional protection. RFRA restores the “compelling governmental interest” standard—meaning that a government law or practice that burdens religious exercise is valid only if supported by a compelling governmental interest.
Last year, a federal district court in Texas ruled that RFRA is unconstitutional, for the following two reasons: (1) Congress can only enact legislation in furtherance of an “enumerated power” granted to it by the Constitution, and nowhere in the Constitution is Congress given the authority to expand the protection of religious freedom; and (2) any attempt by Congress to reverse an interpretation of the Constitution by the Supreme Court violates the separation of powers principle. The court expressed some reservation with its decision, and requested a federal appeals court to review its decision as soon as possible. A federal appeals court has now reviewed the district court’s decision, and rejected it. RFRA remains in full force and effect. The appeals court concluded that Congress had the authority to enact RFRA under section 5 of the 14th amendment to the Constitution, which gives Congress authority to enact legislation to enforce that amendment. The 14th amendment prohibits the states from denying basic constitutional rights to citizens without “due process of law.” Since one of the rights protected by the 14th amendment is the first amendment guaranty of religious freedom, Congress had the authority under section 5 of the 14th amendment to enact RFRA. The appeals court also ruled that the Act did not violate the “separation of powers” principle embedded in the Constitution. It observed:
That RFRA speaks in broad generalities where other legislatively mandated religious exemptions … address specific conduct is of no moment. Within the area of permissible legislative accommodations of religion, Congress may paint with a broad or narrow brush. In either situation, Congress has “disagreed” with the judiciary regarding the scope of religious freedom and the free exercise [of religion] clause. In neither situation has Congress arrogated to itself the unrestricted power to define the Constitution. In short, the judiciary’s duty is to say what the law is, but that duty is not exclusive. The district court’s holding that RFRA usurps the judiciary’s power … to interpret the Constitution is incorrect.
The appeals court’s ruling is good news. A number of attempts by government to restrict religious liberty have been overturned on the basis of RFRA. It provides religious institutions and adherents with meaningful protection that was restricted by the Supreme Court in the Smith decision. Flores v. City of Boerne, 73 F.3d 1352 (5th Cir. 1996). [ The Free Exercise Clause]
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