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The Religious Freedom Restoration Act

§ 12.02.02
Key point 12-02.02. Congress enacted the Religious Freedom Restoration Act to prevent the government from enacting any law or adopting any practice that substantially burdens the free exercise of religion unless the law or practice is supported by a compelling government interest. The compelling government interest requirement applies to any law, including neutral laws of general applicability. The objective of the Act was to repudiate the Supreme Court's decision in the Smith case (1990) in which the Court ruled that neutral laws of general applicability that burden the free exercise of religion do not need to be supported by a compelling government interest in order to satisfy the First Amendment. In 1997, the Supreme Court ruled that the Act was unconstitutional. However, other courts have limited this ruling to state and local legislation, and have concluded that the Act continues to apply to federal laws.

The consequences of the Supreme Court's reinterpretation of the First Amendment guaranty of religious freedom were predictable. Scores of lower federal courts and state courts upheld laws and other government actions that directly restricted religious practices. In many of these cases, the courts based their actions directly on the Smith case, suggesting that the result would have been different had it not been for that decision.

Congress responded to the Smith case in an extraordinary way—by enacting the Religious Freedom Restoration Act ("RFRA") by a unanimous vote of both houses. RFRA was signed into law by President Clinton in 1993. It begins by reciting the following "congressional findings":

  1. the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution;
  2. laws "neutral" toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;
  3. governments should not burden religious exercise without compelling justification;
  4. in Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and
  5. 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.

RFRA next states its purposes as follows: "(1) to restore the compelling interest test … and to guarantee its application in all cases where free exercise of religion is burdened; and (2) to provide a claim or defense to persons whose religious exercise is burdened by government."

The key provision of RFRA is section 3, which specifies:

(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). …
(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.
(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 the government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.

In practical terms, how did the enactment of RFRA affect local churches and other religious organizations?

There is little doubt that it provided significant protections to the exercise of religion. Any law or government practice (whether at the local, state, or federal level) that "burdened" the exercise of religion was legally permissible only if the law or practice (1) was in furtherance of a compelling governmental interest, and (2) was the least restrictive means of furthering that compelling governmental interest. These were difficult standards to meet.

As the Supreme Court itself observed in 1993, the concept of a "compelling governmental interest" is a very difficult standard for the government to satisfy:

A law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny. To satisfy the commands of the First Amendment, a law restrictive of religious practice must advance interests of the highest order and must be narrowly tailored in pursuit of those interests. The compelling interest standard that we apply once a law fails to meet the Smith requirements is not "watered … down" but "really means what it says." A law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases. …[47] Church of the Lukumi Babaluaye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).

In the years following the enactment of RFRA a number of government attempts to regulate or interfere with religious practices were struck down by the courts on the basis of the Act.

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