Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.


The Twentieth Anniversary of the Religious Freedom Restoration Act


Kim Colby

12-06-2013


By Kim Colby

December 6, 2013

The Religious Freedom Restoration Act (RFRA) remains a singular achievement in our country’s long history of religious freedom. When Congress enacted RFRA in 1993 by overwhelming bipartisan majorities, it rededicated the United States to religious liberty for all Americans.   

RFRA’s bipartisan passage. President Clinton signed RFRA into law on November 16, 1993.  Republican Senator Orrin Hatch and Democratic Senator Ted Kennedy together led the effort to pass RFRA in the Senate. The Senate passed RFRA by a vote of 97-3 on October 27, 1993, followed by a unanimous voice vote in the House on November 3.                 

Why RFRA was necessary. RFRA was an urgent response to the Supreme Court’s decision in 1990 in Employment Division v. Smith, 494 U.S. 872 (1990). The Smith decision, authored by Justice Antonin Scalia, dealt a serious setback to religious liberty. Before Smith, the Supreme Court’s free exercise test had prohibited the government from burdening a person’s religious exercise unless the government demonstrated that it had a compelling interest, not achievable by other means, that justified trumping the person’s religious practice. The Smith decision reversed this traditional presumption: the government no longer had to show an important reason for overriding people’s religious convictions, but instead could simply require citizens to violate their religious convictions no matter how easy it would be for the government to accommodate their religious exercise.  

The RFRA coalition. In response to the Smith decision, a 68-member coalition of diverse religious and civil rights organizations (led by the Christian Legal Society, the Baptist Joint Committee for Religious Liberty, the National Association of Evangelicals, the American Jewish Congress, the Religious Action Center of Reformed Judaism, and the American Civil Liberties Union, among other groups) coalesced to encourage Congress to restore substantive protection for religious liberty. RFRA restored the “compelling interest” test by once again placing the burden on the government to demonstrate that a law is compelling and unachievable by less restrictive means. Even though the “compelling interest” test is a high bar, the government has won many cases – perhaps even the majority of cases – brought under RFRA. RFRA’s critical role is that it requires the government to demonstrate that it actually has a compelling interest before it can force a citizen to choose between obeying his God or his government.

RFRA in the Supreme Court. In Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court excluded state and local laws from RFRA’s scope. But RFRA remains applicable to federal laws and regulations and, therefore, covers a great deal of the legal landscape under the modern regulatory state. Critically, in 2006, the Supreme Court made clear that RFRA provides potent protection for religious liberty at the federal level. In Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006), the Court unanimously held that RFRA requires the federal government to demonstrate a truly compelling interest, unachievable by less restrictive means, before it restricts any citizen’s religious practices.  Moreover, the government must show that granting the specific individual citizen an exemption would undermine its ability to achieve its compelling state interest. 

RFRA in the states. Although RFRA no longer applies to state and local governmental actions after the Boerne decision, eighteen states have enacted state RFRAs, modeled on the federal RFRA, that do require state and local governments to meet the “compelling interest” standard.  Those states are:  Alabama, Arizona, Connecticut, Florida, Idaho, Illinois, Kansas, Kentucky, Michigan, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, and Virginia.

RFRA’s remarkable footprint. RFRA is a remarkable law because it reinforces three foundational commitments of American constitutionalism: limited government, pluralism, and religious liberty. First, RFRA is the rare reminder that America’s government is a government of limited powers, one that defers to its citizens’ religious liberty except in compelling circumstances. Second, by evenhandedly protecting religious freedom for all citizens, RFRA embodies American pluralism. Finally, through its passage of RFRA, Congress re-dedicated the United States to religious liberty for all Americans and to the foundational principle that American citizens have the God-given right to live peaceably and undisturbed according to their religious beliefs. In RFRA, a nation begun by immigrants seeking religious liberty renewed its pledge to be a perpetual sanctuary for all faiths. 

For more on the twentieth anniversary of RFRA:

Faces of Free Exercise

Restored or Endangered? The State of Free Exercise of Religion in America

The Religious Freedom Restoration Act: 20 Years of Protecting our First Freedom                                                                                                

- Kim Colby is Senior Counsel at the Christian Legal Society.



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