Religious Freedom Restoration Act

The Original Law and Response

Congress enacted the RFRA in 1993 in response to the Supreme Court's decision in Employment Division, Department of Human Resources v. Smith (1990). In that case, the Court held that people could no longer seek exemption from neutral, generally applicable laws on the grounds that those laws violated their First Amendment rights. Congress pointed out that “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise” (RFRA, § 2000bb(a)(2)).

In enacting the RFRA, Congress identified two purposes: restoration “of the compelling interest test as set forth in Sherbert v. Verner (1963) and Wisconsin v. Yoder” (1972); and provision of “a claim or defense to persons whose religious exercise is substantially burdened by government” (RFRA, § 2000bb(b)). [Page 694]Congress allowed government to substantially burden a person's exercise of religion only if it demonstrated that the burden was “(1) in furtherance of a compelling governmental interest; and (2) [was] the least restrictive means of furthering that compelling governmental interest” (RFRA, § 2000bb-l(b)). The RFRA specifically directs that the statute not be applied to alleged violations of the Establishment Clause, declaring that “granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, shall not constitute a violation of this chapter” (RFRA, § 2000bb-4)).

In City of Boerne v. Flores (1997), the Supreme Court struck down the RFRA as applied to a city zoning ordinance in Texas as interfering with the constitutional relationship between federal and state governments. In invalidating RFRA as applied to states, the Court observed that the law's impact on the states, in terms of both a heavy litigation burden and restrictions on its traditional regulatory power, “far exceed[s] any pattern or practice of unconstitutional conduct under the Free Exercise Clause as interpreted in [Employment Division]” (City of Boerne, p. 534).

While the Court acknowledged that Congress has authority under Section 5 of the Fourteenth Amendment to legislate rights protected under the Fourteenth Amendment, it added that Congress may not do so in a manner that “pervasively prohibits constitutional state action in an effort to remedy or to prevent unconstitutional state action” (City of Boerne, p. 533).

The Revised Law and Response

In response to City of Boerne, Congress amended the RFRA in 2000 by limiting the application of the RFRA enacted in 1997 to only the federal government (RFRA, § 2000bb-2(l)). Congress also added a new statute, Religious Land Use and Institutionalized Persons Act (RLUIPA), which although not technically an amendment to RFRA, immediately follows RFRA in the federal code and applies the same principles of RFRA to local, state, and federal governments. RLUIPA prohibits any government from imposing or implementing a land use regulation that treats a religious assembly or institution any differently from nonreligious ones or from discriminating against a religious assembly or institution (RLUIPA, § 2000cc(b)).

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