Religious Freedom Restoration Act

The Religious Freedom Restoration Act of 1993 (RFRA) was the most expansive federal law aiding religious entities in U.S. history. The RFRA imposed strict scrutiny, including the compelling-interest test and the least restrictive means test, on every law in the country that substantially burdened religious conduct. It was held unconstitutional in City of Boerne v. Flores (1997).

The RFRA was passed in response to the Supreme Court’s decision in Employment Division v. Smith (1990). The Court held that generally applicable, neutral laws may be applied to religious entities, even if they result in an incidental burden on religion. The case involved the application of unemployment compensation laws and narcotics laws to state-employed drug counselors and Native American church members who used peyote, an illegal narcotic, during church services. The Court held that the drug counselors could be denied unemployment compensation benefits where the law prohibited compensation when an employee broke a state law, and the men had broken a generally applicable and neutral narcotics law by using the peyote.

The principle that generally applicable, neutral laws may be applied to religious entities was drawn from the ‘‘vast majority’’ of the Court’s previous free exercise cases, and from the seminal free exercise case, Reynolds v. United States (1879), which declared that holding that religious believers were not subject to generally applicable laws would be ‘‘in effect to permit every citizen to become a law unto himself.’’ Yet, Smith sparked an outcry from civil liberties and religious groups, who argued that the Supreme Court had provided more expansive protection for religious groups against all laws in Sherbert v. Verner (1963). Sherbert held that a state unemployment compensation law could not be applied to a sabbatarian, and introduced the compelling interest test to free exercise jurisprudence. Even though the test in Sherbert was not applied in many later cases, popular wisdom believed that the compelling interest test was to be applied in every free exercise case. That understanding of the free exercise clause informed those who rebelled against Smith and pushed for the RFRA.

Congress, at the urging of the coalition of civil liberties and religious organizations, passed the RFRA in direct response to Smith. First proposed in 1990, the law was passed in 1993. The purpose was plainly to overrule or displace Smith. The legislative record contains page after page of denunciations of the Supreme Court’s decision.

The RFRA was employed in a variety of cases, with the largest number of cases in its short history involving claims brought by prison inmates. The leap in the level of review was most pronounced in the prison context, where the Court had been explicit in prior cases that prison regulations were subject to very low-level scrutiny (O’Lone v. State of Shabazz [1987], or, in some circumstances, intermediate scrutiny (Turner v. Safley [1987]). Because of the RFRA’s fee-shifting provision, many law firms were willing to take such cases, resulting in the large number filed.

In 1997, the Supreme Court decided Boerne v. Flores, and held that the RFRA was beyond the power of Congress under Section 5 of the Fourteenth Amendment. In a historic states rights decision, the Court clarified the standards for congressional lawmaking pursuant to Section 5, which states, ‘‘The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.’’ First, Congress was not permitted to regulate the states pursuant to Section 5 unless the states had engaged in widespread and persisting constitutional violations. This predicate for Section 5 could be proved by common knowledge or a record created in Congress. The Court found the brief, anecdotal record created in support of RFRA to fall far short of showing widespread free exercise violations in the states. Second, the law Congress passed pursuant to Section 5 was to be ‘‘congruent and proportional’’ to the constitutional harm engendered by the states. In the words of the Court, ‘‘RFRA cannot be considered remedial, preventive legislation, if those terms are to have any meaning. The RFRA is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.’’

The Boerne decision further held that the RFRA violated the separation of powers pursuant to Marbury v. Madison (1803), and that it infringed the amendment procedures required in Article V by effecting a change in the Constitution through simple majority vote. These elements of the opinion bring into question the validity of the RFRA against federal law, but no court has yet held it unconstitutional as applied to federal law, and the Supreme Court has not ruled on the issue.

Following the RFRA’s invalidation, proponents lobbied the state legislatures to pass similar legislation. As of 2004, thirteen states have enacted state religious liberty laws, including Alabama, Arizona, Connecticut, Florida, Idaho, Illinois, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, and Texas. Additionally, the Religious Liberty Protection Act (RLPA) was introduced in the U.S. Congress in three successive years, 1998, 1999, and 2000. It would have predicated the RFRA’s strict scrutiny standard on Section 5 of the Fourteenth Amendment, the commerce clause, and the spending clause. The RLPA was never passed, but in 2000, Congress passed and President Clinton signed the Religious Land Use and Institutionalized Persons Act, which applies strict scrutiny to land use laws and prison regulations that substantially burden religious individuals and institutions.

MARCI A. HAMILTON

References and Further Reading

• Berg, Thomas C., What Hath Congress Wrought? An Interpretive Guide to the Religious Freedom Restoration Act, Villanova Law Review 39 (1994): 1.
• Bybee, Jay, Taking Liberties With the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act, Vanderbilt Law Review 48 (1995): 1539.
• Eisgruber, Christopher V., and Lawrence G. Sager, Why the Religious Freedom Restoration Act Is Unconstitutional, New York University Law Review 69 (1994): 437.
• Hamilton, Marci A., The Religious Freedom Restoration Act Is Unconstitutional, Period, University of Pennsylvania Law Journal 1. (1998).
• ———, City of Boerne v. Flores: A Landmark for Structural Analysis, William and Mary Law Review 39 (1998): 699.
• ———, The Religious Freedom Restoration Act: Letting the Fox into the Henhouse Under Cover of Section 5 of the Fourteenth Amendment, Cardoso Law Review 16 (1994): 357.
• Laycock, Douglas, Conceptual Gulfs in City of Boerne v. Flores, William and Mary Law Review 39 (1998): 743.

Cases and Statutes Cited

• City of Boerne v. Flores, 521 U.S. 507 (1997)
• Employment Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990)
• O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987)
• Marbury v. Madison, 1 Cranch 137 (1803)
• Reynolds v. United States, 98 U.S. 145 (1879)
• Sherbert v. Verner, 374 U.S. 398 (1963)
• Turner v. Safley, 482 U.S. 78 (1987)
• Religious Freedom Restoration Act, 42 U.S.C. section 2000bb et. seq.
• Religious Liberty Protection of 1998 (Introduced in Senate), S. 2148, 105th Congress, 2d Session. https://thomas.loc.gov/cgi-bin/query/D?c105:2:./temp/\\~c105Wb2Ov1 (see House version, H.R. 4019, same website; subsequent versions, found at https://thomas.loc.gov)
• U.S. Constitution, Amendment 14, Section 5