In the mid- to late 1990s, thirteen states passed enactments designed to protect religious practices from unnecessary government restriction. The state provisions emerged from the dispute over the U.S. Supreme Court’s decision in Employment Division v. Smith (1990), which held that the First Amendment’s free exercise clause seldom, if ever, gave religiously motivated conduct protection from the burdens of a ‘‘neutral law of general applicability.’’ The Smith holding potentially exposes religious practices—especially those of unfamiliar minorities—to widespread restriction from a host of general secular laws, and this prospect triggered a congressional remedy in the Religious Freedom Restoration Act of 1993 (RFRA). RFRA reinstated, as a statutory right, the standard of previous constitutional decisions: even a facially neutral law or regulation that imposes a ‘‘substantial burden’’ on religious exercise must be justified on the ground that it serves a ‘‘compelling governmental interest’’ and is the ‘‘least restrictive means’’ of doing so. However, the Supreme Court in City of Boerne v. Flores (1997) struck down RFRA in part on the ground that it exceeded Congress’s power to enforce Fourteenth Amendment rights against state and local governments.
Smith and Boerne together prompted religious freedom defenders to seek protections from state legislatures themselves through statutes tracking RFRA and its compelling-interest test. Beginning in 1993, but primarily from 1998 through 2000, ‘‘state RFRAs’’ or ‘‘mini RFRAs’’ passed as statutes in eleven states (Arizona, Connecticut, Florida, Idaho, Illinois, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, and Texas) and as a constitutional amendment in one state (Alabama). Of course, the state-autonomy arguments invoked in Boerne to invalidate congressional action are inapplicable when the state places limits on its own laws in the name of religious freedom.
State enactments generally track RFRA’s ‘‘substantial burden’’/‘‘compelling interest’’ formulation, but some either narrow or broaden protection. A few exempt certain categories of laws and regulations from scrutiny, sometimes in frequently occurring disputes: South Carolina excludes religious-freedom claims by state prisoners; Texas excludes claims by religious institutions against civil rights laws and claims by churches against local zoning regulations. On the other hand, some statutes seek to keep the ‘‘burden’’ threshhold for triggering protection from being set too high: Arizona makes clear that a burden on religion is ‘‘substantial’’ unless it is ‘‘de minimis’’ or technical, and Alabama removes the ‘‘substantial’’ qualifier altogether, likewise suggesting that minor burdens on religious practice still must be scrutinized.
The state enactments to date have been the subject of only a few judicial interpretations. Several appellate decisions note that state-RFRA claims were not raised in the trial court, suggesting that lawyers are not yet familiar with them. A decision of the Florida Supreme Court, however, exemplifies the threat of judges willing to shrink the scope of the statute even by means irreconcilable with its text. Florida’s statute defines religious exercise as ‘‘an act or refusal to act that is substantially motivated by a religious belief, whether or not the religious exercise is compulsory or central to a larger system of religious belief.’’ But the Florida court in Warner v. City of Boca Raton (2004) held that a burden on religion is not ‘‘substantial’’ unless it ‘‘compels the religious adherent to engage in conduct that his religion forbids or forbids him to engage in conduct that his religion requires’’—thereby reimposing under substantiality the very same restriction, that the conduct be religiously compelled or forbidden, that the legislature had rejected in defining religious exercise.
‘‘Mini RFRAs’’ offer the promise that states will give religious freedom a degree of protection that the U.S. Supreme Court has been reluctant to give under the First Amendment. But the state enactments will have little effect if they are overlooked by lawyers or whittled down by state judges—or conversely, if protections under federal law rebound from the low point where they seemed to be in the early 1990s.
THOMAS C. BERG
References and Further Reading
Cases and Statutes Cited