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The Religious Freedom Restoration Act

§ 8.12.08
Key Point 8-12.08. 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.

In 1963 the United States Supreme Court issued a major reinterpretation of the First Amendment's free exercise of religion clause in the case of Sherbert v. Verner. 110 374 U.S. 398 (1963). In the Sherbert case, the Court announced that a government statute or regulation that imposes a "burden" on the free exercise of religion violates the free exercise clause unless the statute or regulation is justified by a "compelling state interest." This test was clarified a few years later in Wisconsin v. Yoder. 111 406 U.S. 205 (1971). The Yoder case is discussed in chapter 12, supra. The Supreme Court articulated its understanding of the free exercise clause as follows:

  1. Government may never interfere with an individual's right to believe whatever he or she wants.
  2. In determining whether the government may interfere with or restrict religiously motivated conduct, the courts must consider (a) whether the activity was motivated by and rooted in legitimate and sincerely held religious belief, (b) whether the activity was unduly and substantially burdened by the government's action, and (c) whether the government has a compelling interest in limiting the religious activity that cannot be accomplished by less restrictive means.

This general understanding of the free exercise clause was applied by the Supreme Court in several cases. 112 See, e.g., Hernandez v. Commissioner, 109 S. Ct. 2136 (1989); Hobbie v. Unemployment Appeals Commission, 480 U.S. 136 (1987); United States v. Lee, 455 U.S. 252 (1982).

In 1990 the United States Supreme Court ruled in the Smith case that a "neutral law of general applicability" 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. 113 Employment Division v. Smith, 494 U.S. 872 (1990). In so ruling, the Court repudiated a quarter of a century of established precedent and severely diluted this basic constitutional protection. The results were predictable. Scores of lower federal courts and state courts sustained laws and governmental practices 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 by enacting the Religious Freedom Restoration Act of 1993. 114 42 U.S.C. § 2000bb. The Act restored the compelling interest test through the following provision:

Government shall not burden a person's exercise of religion even if the burden results from a rule of general applicability [unless] 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.

In explaining this provision, the Senate Judiciary Committee commented that the Act "permits government to burden the exercise of religion only if it demonstrates a compelling state interest and that the burden in question is the least restrictive means of furthering the interest."

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.

A few courts have applied RFRA in evaluating claims of discrimination against religious employers under Title VII of the Civil Rights Act of 1964.

Case study. A federal appeals court ruled that a minister's age discrimination lawsuit challenging a denominational policy requiring the retirement of ministers at 70 years of age was barred by the federal Religious Freedom Restoration Act. The minister asserted that the mandatory retirement policy was a "secular" matter that was not influenced by any religious considerations. A federal appeals court ignored the ministerial exception to employment laws 115 See § 8-10, supra. and ruled that the lawsuit was barred by the federal Religious Freedom Restoration Act (RFRA). It noted that the ministerial exception "has no basis in statutory text, whereas RFRA, if applicable, is explicit legislation that could not be more on point. Given the absence of other relevant statutory language, the RFRA must be deemed the full expression of Congress's intent with regard to the religion-related issues before us and displace earlier judge-made doctrines that might have been used to ameliorate the age discrimination law's impact on religious organizations and activities." The court rejected the minister's claim that RFRA is unconstitutional. It concluded that RFRA represents a constitutional exercise of congressional power as it applies to the federal government. A dissenting judge argued that RFRA has no application to disputes between private parties, such as the present case, and that the case should have been dismissed on the basis of the ministerial exception. 116 Hankins v. Lyght, 441 F.3d 96 (2nd Cir. 2006).
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