Religious Freedom Restoration Act

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Religious Freedom Restoration Act

Beginning in the 1960s, the U.S. Supreme Court interpreted the free-exercise clause of the First Amendment to provide significant protection for religiously motivated conduct. For example, the Court ruled that states could not deny unemployment compensation to Sabbatarians who refused Saturday employment, nor could they punish Amish parents who refused to send their children to high school. Although the Court's constitutional doctrine was complex and multifaceted, it generally required strict judicial scrutiny when a law had the effect of substantially burdening a religious practice. If the government could not demonstrate that the burden was justified by a "compelling" interest, an exemption from the law was constitutionally required.

In 1990, however, the Supreme Court adopted a dramatically different approach. In Employment Division v. Smith, the Court was asked to recognize an exemption for the sacramental use of an otherwise illegal drug, peyote, by members of the Native American Church. Not only did the Court refuse to do so, but it also declined to apply the strict judicial scrutiny that its precedents appeared to require. Marking a fundamental shift in doctrine, the Court declared that generally applicable laws that affect religious practices ordinarily do not require special constitutional scrutiny and therefore do not require religious exemptions. Smith essentially reduced the free-exercise clause to a prohibition on laws that discriminate against religion by targeting religious practices for special, disadvantageous treatment. Nondiscriminatory laws that burden religious practices, however substantially and for whatever reasons, would no longer be subject to serious constitutional scrutiny.

The Court's doctrinal shift was controversial, and it triggered widespread political criticism. Supported by a broad coalition of divergent interest groups, ranging from the ACLU to the Southern Baptist Convention, Congress concluded that the Court's new doctrine gave inadequate protection to religious freedom. Remarkably, Congress also concluded that it had the power to overturn the Court's interpretation of the free-exercise clause and to impose its own interpretation on the states. By nearly unanimous votes, Congress enacted the Religious Freedom Restoration Act of 1993 (RFRA), which was expressly designed to repudiate Smith and to "restore" the Supreme Court's preexisting doctrinal framework. Accordingly, RFRA stated that "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability," unless the burden "is in furtherance of a compelling governmental interest."

Not surprisingly, the constitutionality of RFRA itself was challenged, and in its 1997 decision in City of Boerne v. Flores, the Supreme Court invalidated RFRA, at least as it applied to state and local laws, thereby reinstating the restrictive approach of Smith. Whether RFRA remains valid as applied to federal laws is unsettled. At the state level, some legislatures have adopted or are considering state-law RFRAs to replace the invalidated federal statute. In addition, Congress is considering new legislation that would once again extend RFRA-like standards to many sorts of state and local laws. Whether this new legislation will be enacted is an open question, and, if it is, it is unclear whether the legislation will withstand constitutional scrutiny.