The Religious Freedom Restoration Act (RFRA) was adopted in 1993 to spell out what the government could do and not do with relation to restricting religious freedoms, especially those of minority religions and underrepresented minorities. The act was prompted by a coalition of religious groups and others, responding to a controversial court case that overturned decades of law concerning the place of religious freedom in the United States. Ruled unconstitutional after 4 years, the act nevertheless has had an ongoing influence on issues related to conflicts between religious freedom and government rules and regulations. This entry discusses the law, its history, and the current situation.
Decision Employment Division, Dept. of Human Resources of Oregon v. Smith concerned the use of peyote by two employees of the state of Oregon who were also members of the Native American Church, which uses peyote ceremonially as a sacrament. The two were terminated from their state positions as drug counselors, and they applied for unemployment compensation. The state had used their peyote usage to deny the two employees benefits, and the latter brought suit to overturn the decision. Many observers assumed that because unemployment compensation was the main area where the compelling interest and least restrictive tests had been successfully applied in the past, this would be a straightforward case, with the plaintiffs prevailing. However, Native American groups have seldom prevailed in legal actions attempting to defend their religious practices or sacred lands, so the stage was set for a major confrontation.
The plaintiffs prevailed at the state trial court level and at the Oregon Supreme Court, based on the fact that, although use of peyote was illegal in Oregon, the state had not enforced the law against practitioners of the Native American Church in the past. However, the state of Oregon appealed to the U.S. Supreme Court, which, surprisingly to many, accepted the case and then, in a stunning ruling, overturned the Oregon Supreme Court’s decision and tossed out the compelling interest and least restrictive means tests. Instead, the Court promulgated a “facially neutral” test, which means a law can be applied against religious practices, no matter the impact, if the law is neutral toward religion in how it is written.
The Smith case had many repercussions. The state of Oregon moved rapidly to criminalize the ceremonial use of peyote by the Native American Church. On the national level, there was great consternation regarding the Smith decision, which was seen as the “final blow” in a series of similar rulings. This led to the formation of a coalition of religious groups of all types, including some that were often at odds on some issues, such as abortion. Also, there was an outpouring of commentary about the decision, with many scholars such as Douglas Laycock, offering severe criticisms of the decision. The coalition, fueled by scholarly criticism and public concern about the seeming denigration of religious freedom rights, eventually succeeded in gaining passage of RFRA.
RFRA was passed nearly unanimously by Congress and signed with great ceremony by President Bill Clinton in 1993. Section 1 of RFRA (H.R. 1308, 103rd Congress, 1st session) set forth the key provisions: (a) in general, the “government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” with the exception (b) that “government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person furthers a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest.”
RFRA was controversial from the outset because of the grounding of its authority in Section 5 of the Fourteenth Amendment, which gives Congress the authority to “enforce by appropriate legislation” the Amendment’s guarantee of the due process and equal protection provisions. This section has served as the basis for Congress’s passage of civil rights legislation, including voting rights for minorities, but extending the section’s reach to cover religious freedom was viewed by some as unwarranted. Also, a last-minute but unsuccessful battle was waged to limit RFRA’s application so that it did not apply to prisoners, with some claiming that RFRA would cause chaos in the nation’s prisons. An amendment to omit prisoners from inclusion was defeated 56 to 41 in the U.S. Senate, after then-Attorney General Janet Reno wrote a letter indicating that such concerns were groundless.
RFRA was ruled unconstitutional in 1997 by the U.S. Supreme Court in City of Boerne v. Flores, which involved an effort by a Catholic Church in Boerne, Texas, to rebuild larger facilities to house its growing congregation and its social programs. Notably, this major decision involved a dominant religious group and a seemingly simple zoning dispute. Part of the church was in a historic district, and the city refused to allow the structure to be replaced, even though the façade was to remain. The church sued in federal district court, which ruled against the church and stated that RFRA was unconstitutional. The church appealed and gained a victory in the Fifth Circuit Court of Appeals in New Orleans.
The City of Boerne appealed to the U.S. Supreme Court, which ruled on June 25, 1997, that RFRA was unconstitutional. The Court stated that Congress had usurped the Court’s powers to determine what was constitutional and that the Fourteenth Amendment could not be used to justify Congress’s action. The Court also stated that religious discrimination in the United States did not rise to the level of the problems associated with racial discrimination, which warranted use of the Fourteenth Amendment to justify federal civil rights legislation.
RFRA did have some impact during its 4-plus years in operation. Scholars noted that the RFRA threshold was high and seldom reached unless there was a combination of legal coercion clashing with religious duty. Scholars also noted that about half the RFRA cases filed were by prisoners, and some of them were successful. Thus, a major impact of RFRA was to protect the religious rights of prisoners, many of whom are from minority racial and ethnic groups. Religious groups themselves won few cases under RFRA, however, extending the pre-Smith pattern mentioned previously. The pattern of trial and appeal court decisions concerning RFRA claims before Boerne was decidedly mixed, and, until the Boerne case, the Supreme Court refused several RFRA cases. But with Boerne, the Court spoke plainly, indicating that it would not allow such a direct challenge to its authority as RFRA offered.
After Boerne, there was great hue and cry by proponents of strong religious freedom provisions and interpretations. At the federal level, efforts were made to pass RFRA-like statutes that were more narrowly focused and grounded in constitutional provisions other than the Fourteenth Amendment. In 2000, Congress passed by unanimous consent in both houses the Religious Land Use and Institutional Persons Act (RLUIPA), which was focused only on zoning matters and people incarcerated in mental hospitals, nursing homes, and prisons. The latter provisions are potentially of assistance to ethnic and racial minority members, who are vastly overrepresented in U.S. prisons. The new act was grounded mainly in the commerce and spending clauses of the Constitution for its legal basis. RLUIPA has since been upheld by the U.S. Supreme Court as it applies to prisoners, and lower courts have generally upheld it in claims concerning land use.
The Supreme Court also has unanimously upheld the original RFRA as it applies to federal agencies, ruling in Gonzales v. O Centro Espírita Beneficente União do Vegetal in favor of a small (130 members) Brazilian religion sect in New Mexico that had been precluded by federal customs agents from importing hoasca, a hallucinogenic tea used in its religious rituals. The Roberts Court, with Chief Justice John Roberts writing, stated, among other things, that if peyote use for religious purposes by the Native American Church was exempted from drug laws, then the substance used by the Brazilian sect should be as well. Thus, RFRA is alive and well as it applies to federal agencies.
Also, at least eleven states have passed state-level RFRA laws in an effort to overcome the Boerne ruling that the Congress could not dictate what nonfederal public entities do concerning religious freedom claims. Thus, it seems that there is still strong momentum for granting more religious freedom in U.S. society, including for minority religions and populations such as prisoners that have a high proportion of minorities. This movement is controversial, as demonstrated by a number of scholarly publications; Marci Hamilton, for example, argued that the demand for religious freedom has gone too far and is not in the public interest. However, given the make-up of the Roberts Supreme Court, and the indication of its posture on these issues as shown in the Gonzales case, it seems that religious freedom rights, including those of minorities, are gaining some support at this time in U.S. society.
Religion; Religion, Minority; Sacred Versus Secular
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