Religious Freedom Restoration Act 107 Stat. 1488 (1993)

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The first amendment free exercise clause provides that "Congress shall make no law … prohibiting the free exercise" of religion, a limitation that today extends to all branches and levels of government, including states and localities. Until the 1960s, the clause had been narrowly interpreted: although religious belief was protected absolutely, religious conduct was protected only in limited circumstances, such as from intentionally discriminatory laws. Beginning with sherbert v. verner (1963), however, the Supreme Court broadened its interpretation, holding that the clause barred at least some unintentional, incidental burdens resulting from the application of otherwise valid laws or policies. In wisconsin v. yoder (1972), for example, the Court held that the Old Order Amish could not be required by state law to send their children to school beyond the eighth grade, even though the law applied uniformly to all Wisconsin citizens and did not intentionally discriminate against or burden religion.

In 1990, the Court again narrowed the scope of the clause. In employment division, department of human resources of oregon v. smith (1990) the Court confined the Sherbert–Yoder standard to cases involving similar factual or legal claims and held that the clause normally does not prohibit laws that incidentally burden religious practices, as long as they are "neutral" (i.e., not aimed at religion) and "generally applicable" (i.e., applicable to a broad range of persons or activities).

Smith ignited a firestorm of criticism, eventually prompting Congress to enact the Religious Freedom Restoration Act (RFRA) of 1993. Initially cosponsored by Senators Orrin Hatch and Edward Kennedy, and supported by a diverse coalition of religious and other organizations, RFRA overwhelmingly passed the U.S. senate and the U.S. house of representatives, and was signed into law by President william j. clinton on November 16, 1993.

RFRA's principal purpose was "to restore the compelling interest test as set forth in [ Sherbert and Yoder ] and to guarantee its application in all cases where free exercise of religion is substantially burdened.…" Specifically, RFRA provided that the "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability" unless "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." RFRA applied to all laws—federal, state, and local—"whether statutory or otherwise, and whether adopted before or after [its enactment]."

By requiring a compelling state interest and the least restrictive means—the so-called strict scrutiny of Sherbert and Yoder—RFRA displaced Smith in cases where religion was substantially burdened, but the law was neutral and generally applicable. This stricter scrutiny proved beneficial for some, though certainly not all, RFRA claimants. The government often had little difficulty identifying a "compelling interest," such as public health or prison security, but periodically failed to demonstrate that it employed the "least restrictive means" (i.e., that the compelling interest could not have been achieved without burdening religious practice to a lesser degree). Accordingly, it was this latter requirement on which successful RFRA claimants tended to prevail.

RFRA's application, particularly to prisoners, grew somewhat controversial with time, and the broad consensus favoring the abstract concept of religious freedom dissipated in the actuality of genuine legal disputes. RFRA's most serious problem, however, had little to do with religious liberty as such; rather, critics asserted that Congress altogether lacked the power to enact the statute. In City of Boerne v. Flores (1997), the Court agreed with the critics and invalidated the statute, at least as it applies to state and local law.

RFRA had been defended under Congress's fourteenth amendment enforcement power. Section 1 of that amendment imposes several limitations on the states—among them the guarantee of due process, which the Court had previously held to include the free exercise of religion—and it empowers Congress, in section 5, "to enforce, by appropriate legislation," these limitations. In the Court's view, however, RFRA was not a valid attempt by Congress to "enforce" the Fourteenth Amendment because it prohibited many laws that were constitutional under Smith, and because Congress had not made factual findings demonstrating "a congruence and proportionality" between such prohibitions and the prevention or remediation of actual constitutional violations.

Buttressing its holding that Congress exceeded its section 5 power, the Court noted concerns regarding both the separation of powers and federalism. First, by displacing the Court's 1990 interpretation of the free exercise clause in Smith, RFRA appeared to be a congressional usurpation of the judicial power to render authoritative constitutional interpretations. Second, RFRA's application to all state and local laws appeared to be a congressional intrusion into certain legal domains reserved to the states. Although noting RFRA's incongruence with both doctrines, the Court gave no clear indication of the independent significance of either doctrine.

The Court left open the question of RFRA's validity as applied to federal law, and the lower courts are presently divided on that issue. Although no Fourteenth Amendment or federalism problems exist, the separation of powers issue remains. Additionally, RFRA may violate the First Amendment prohibition on the establishment of religion because it protects only religious conduct and thus appears to favor religion over nonreligion. This was the position of Justice john paul stevens concurring in City of Boerne and remains an issue even if RFRA is otherwise valid as applied to federal law.

Scott C. Idleman


Berg, Thomas C. 1994 What Hath Congress Wrought? An Interpretive Guide to the Religious Freedom Restoration Act. Villanova Law Review 39:1–70.

Conkle, Daniel O. 1995 The Religious Freedom Restoration Act: The Constitutional Significance of an Unconstitutional Statute. Montana Law Review 56:39–93.

Gressman, Eugene and Carmella, Angela C. 1996 The RFRA Revision of the Free Exercise Clause. Ohio State Law Journal 57:65–143.

Hamilton, Marci A. 1994 The Religious Freedom Restoration Act: Letting the Fox into the Henhouse Under Cover of Section 5 of the Fourteenth Amendment. Cardozo Law Review 16:357–398.

Laycock, Douglas and Thomas, Oliver S. 1994 Interpreting the Religious Freedom Restoration Act. Texas Law Review 73:209–245.

Van Alstyne, William W. 1996 The Failure of the Religious Freedom Restoration Act Under Section 5 of the Fourteenth Amendment. Duke Law Journal 46:291–325.

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Religious Freedom Restoration Act 107 Stat. 1488 (1993)

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