Background: Religious Freedom Restoration Act

During the 1960's and 1970's, a series of decisions by the US Supreme Court supported individuals' religious freedom by limiting the authority of governments to pass restrictive legislation. Two important examples were Sherbert v. Verner in 1963 and Wisconsin v. Yoder in 1972.

During the late 1980's, the US Supreme Court's philosophy shifted in the direction of allowing governments to restrict religious freedom, as long as the limitations applied equally to all faiths. The US Supreme Court decision of Employment Division v. Smith in 1990 was a key decision in this area. The court ruled that native religious use of peyote (a hallucinogenic drug) is not a constitutionally protected religious right. Some native religious traditions had been using peyote in their religious rituals for millennia.

Over 60 religious organizations and civil liberties groups combined to form the Coalition for the Free Exercise of Religion  to fight this trend. They represented religious liberals and conservatives, and included Native American spiritual groups and Christian, Humanist, Jewish, Muslim, Scientology and Sikh religious organizations. The coalition brought together longtime enemies, like the American Civil Liberties Union and the Concerned Women for America; the Americans United for Separation of Church & State and the Traditional Values Coalition. The group continues to exist today; it has expanded to include 72 very different organizations who often have opposite views on almost every topic.

They promoted the federal Religions Freedom Restoration Act (RFRA) which required governments to:

bullet Refrain from limiting religious freedom, unless they have a compelling societal reason for doing so.
bullet Select the least intrusive method to achieve their goal, if they need to restrict religious freedom.

American Atheists were one of the few groups which opposed RFRA. They complained that it gave "special rights" to churches, mosques, synagogues, temples and other sectarian organizations.

The House of Representatives, in a rare move, unanimously approved the bill on 1993-OCT-27. The Senate passed the bill to 97 to 3 with no abstentions on 1993-NOV-3. President Clinton signed it into law on 1993-NOV-16.

Dozens of cases that have made effective use of this law. But in other lawsuits, low level courts found that the act was unconstitutional. One case reached the U.S. Supreme Court. The Roman Catholic Archdiocese of San Antonio wanted to demolish part of a church in Boerne, TX.  The town refused, because the building local historic ordinances required that the building be maintained. The church sued under RFRA, in Boerne v. Flores, and lost. The U.S. Supreme Court ruled in 1997-JUN that RFRA was unconstitutional because it exceeded the authority of Congress.

RFRA has since been reborn at the state level, where a number of laws patterned after the federal legislation have been enacted. A federal bill to replace RFRA, the Religious Liberty Protection Act, passed the House but died in the Senate. A stripped-down bill, the Religious Land Use and Institutionalized Persons Act (RLUIPA), was passed by Congress and signed into law on 2000-SEP-22. It restricted governments from interfering with the religious use of land. It also guaranteed religious freedom to inmates of institutions. In 2003-NOV, the Sixth U.S. Circuit Court of Appeals declared that the RLUIPA law had "the primary effect of advancing religion." They thus found that it violated the First Amendment of the U.S. Constitution which draws a wall between church and state.

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Excerpts from the Religious Freedom Restoration Act

bullet Short Title: This Act may be cited as the 'Religious Freedom Restoration Act of 1993'.
bullet Congressional Findings and Declaration of Purposes:
The Congress finds that:
  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 substantially burden religious exercise without compelling justification
  4. in Employment Division v. Smith, 494 US 872 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and 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.

The purposes of this Act are

  1. to restore the compelling interest test as set forth in Sherbert v. Verner, 374 US 398 (1963) and Wisconsin v. Yoder, 406 US 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and
  2. to provide a claim or defense to persons whose religious exercise is substantially burdened by government.
bullet Free Exercise of Religion Protected:
bullet (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).
bullet (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.
bullet 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 a 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.
bullet Definitions: As used in this Act
  1. the term 'government' includes a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, a State, or a subdivision of a State;
  2. the term 'State' includes the District of Columbia, the Commonwealth of Puerto Rico, and each territory and possession of the United States
  3. the term 'demonstrates' means meets the burdens of going forward with the evidence and of persuasion; and
  4. the term 'exercise of religion' means the exercise of religion under the First Amendment to the Constitution.
bullet Applicability.
bullet (a) In General. This Act applies to all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after the enactment of this Act .
bullet (b) Rule of Construction. Federal statutory law adopted after the date of the enactment of this Act is subject to this Act unless such law explicitly excludes such application by reference to this Act .
bullet (c) Religious Belief Unaffected. Nothing in this Act shall be construed to authorize any government to burden any religious belief.
bullet Establishment Clause Unaffected.
Nothing in this Act shall be construed to affect, interpret, or in any way address that portion of the First Amendment prohibiting laws respecting the establishment of religion (referred to in this section as the 'Establishment Clause'). Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, shall not constitute a violation of this Act. As used in this section, the term 'granting', used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions. 1,2,3

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RFRA declared unconstitutional

A recent case (Boerne v. Flores) involved the Roman Catholic Archbishop of San Antonio, TX. The city of Boerne TX refused to issue a construction permit to allow the church to expand into a historical district. The church sued, and the federal judge determined that the RFRA act was unconstitutional. The city argued that the act violates the 10th Amendment rights of states and local governments. That ruling was reviewed by several appeal courts which found the act constitutional.

Many unrelated cases have been initiated under the RFRA by prison inmates who charge that prison regulation of clothing, diet, etc. are violations of their religious beliefs. Many of these are nuisance suits. The states of Delaware, Florida, Hawaii, Idaho, Illinois, Iowa, Minnesota, Mississippi, Nevada, New Hampshire, North Carolina, Ohio, Oklahoma, Pennsylvania, South Dakota and Vermont have filed "amicus curia" (friend of the court) briefs supporting the city of Boerne. They complain the RFRA act disrupts prison life by allowing "gangs and like-minded groups to shroud illicit activity under the cover of 'religious' belief."

The US Supreme Court agreed to hear on the case, which had both religious freedom and states rights aspects. In a landmark ruling, on 1997-JUN-25, they declared the act unconstitutional. In a 6 to 3 decision, the Supreme Court ruled that the law gave the practice of religion more protection than the court had found to be constitutionally required. Three of the court's most conservative members (Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas) for once found themselves on the same side as two of the most liberal justices (John Paul Stevens and Ruth Bader Ginsburg). Justice Anthony Kennedy prepared the majority opinion. He wrote (in part):

"RFRA is not a proper exercise of Congress'...enforcement power because it contradicts vital principles necessary to maintain separation of powers and the federal state balance...RFRA's legislative record lacks examples of any instances of generally applicable laws passed because of religious bigotry in the past 40 years. Rather, the emphasis of the RFRA hearings was on laws like the one at issue that place incidental burdens on religion. It is difficult to maintain that such laws are based on animus or hostility to the burdened religious practices or that they indicate some widespread pattern of religious discrimination in this country. RFRA's most serious shortcoming, however, lies in the fact that it 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. It appears, instead, to attempt a substantive change in constitutional protections, proscribing state conduct that the Fourteenth Amendment itself does not prohibit. Its sweeping coverage ensures its intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter. Its restrictions apply to every government agency and official...and to all statutory or other law, whether adopted before or after its enactment...It has no termination date or termination mechanism. Any law is subject to challenge at any time by any individual who claims a substantial burden on his or her free exercise of religion. Such a claim will often be difficult to contest. Requiring a State to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law...All told, RFRA is a considerable congressional intrusion into the States' traditional prerogatives and general authority to regulate for the health and welfare of their citizens, and is not designed to identify and counteract state laws likely to be unconstitutional because of their treatment of religion."

Justice John Paul Stevens stated that the Act violated the principle of separation of church and state, by preferring religion over irreligion. This gave to religious groups special privileges which no atheist could hope to attain. He wrote: "If the historic landmark on a hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinance that forbid demolition of the structure.  Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law. Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain.  This government preference for religion, as opposed to irreligion, is forbidden by the First Amendment." 6

The Supreme Court indicated that similar bills might be constitutional if passed by individual states. 4

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Sponsored link:

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Reactions to the Supreme Court action:

bullet J. Brent Walker of the Baptist Joint Committee on Public Affairs said: "The 'least dangerous branch' of government has turned out to be the most dangerous branch for those who value religious freedom."
bullet The Associated Press described comments from unidentified "leaders of mainline religions" who support the law and who listed a number of legal cases that were won under the RFRA:
bullet A California state regulation requiring an employment loyalty oath was successfully challenged by a group of Jehovah's Witnesses.
bullet In Wisconsin, an Amish group challenged a state regulation which required them to mount bright orange safety triangles on their buggies. The Amish avoid "worldly" displays.

They also listed cases that were lost in the early 1990's before the RFRA was passed:

bullet In Rhode Island, Hmong families were unable to prevent autopsies being performed on their of dead relatives; they believe that the procedure eliminates future life after death.
bullet In Maryland, a number of Catholic teaching hospitals had their accreditation canceled because they refused to perform abortions.

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A related effort on religious freedom

Rep Istook (D-OK) proposed an amendment to the US Constitution which would largely remove the wall of separation between church and state. The amendment would over-write the First Amendment, and give individuals and groups who followed a majority faith group to impose their will over any minorities. For example, public school children could be forced to either recite a prayer or ask to be excused. The latter would leave them open to harassment and attacks by the majority. The government of Utah could declare itself a Mormon state. The amendment failed to win a 2/3 majority in the House on 1998-JUN-4. Similar amendment have been introduced since, without success.

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Related essay on this web site:

bullet How to obtain the text and status of federal government bills

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  1. The full text of the RFRA Act and additional information can be obtained from the Christian Science Committee on Publications web site at:
  2. The FindLaw WWW site has brief descriptions of important court decisions effecting religious freedom in the US. See:
  3. An essay: "Watch the Grave of James Madison" discusses the establishment clause of the US Constitution, and the wall of separation between church and state. See:
  4. The text of the 1997-JUN decision of the Supreme Court can be read in HTML or WordPerfect formats at: Included are the 28 page decision (Kennedy), two Concurrences (Stevens, Scalia), and three dissents (O'Connor, Souter and Breyer).
  5. contains detailed information, including the full text of the law and a list of court cases that have cited the RFRA.
  6. "Circuit Court strikes down religious 'special rights' statute," AANews, 2003-DEC-20.

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