Religious Freedom Restoration Act

Acting in response to the U.S. Supreme Court's judgment in Employment Division, Department of Human Resources v. Smith (1990), Congress enacted the Religious Freedom Restoration Act (RFRA) in 1993 pursuant to the Necessary and Proper Clause in the federal Constitution. In Employment Division, the Court held that the Free Exercise Clause of the First Amendment would no longer be a defense to government statutes or regulations that were neutral and generally applicable. In light of the potential impact that the RFRA may have on religious colleges and universities, particularly with regards to zoning and land uses, this entry examines the act's key provisions along with cases interpreting its application in the event that such litigation should arise. This entry also reviews the Religious Land Use and Institutionalized Persons Act, which applies the principles of the RFRA to local and state governments.

When Congress enacted the RFRA, it noted in its findings that the free exercise of religion is an unalienable right protected by the First Amendment and that “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise” (RFRA § 2000bb(a)(1), (2)). In emphasizing that it was essentially reversing the Supreme Court's judgment in Employment Division, Congress identified its two purposes for enacting RFRA. Congress's first goal in enacting the RFRA was the restoration “of the compelling interest test as set forth in Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972)” that applies when the government action affects religious freedom. The second aim of the act was providing “a claim or defense to persons whose religious exercise is substantially burdened by government” (RFRA, § 2000bb(b)).

In the RFRA, Congress allowed the government to place a substantial burden on the free 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-1(b)).” At the same time, the RFRA specifically directed that its terms could not be applied to alleged violations of the Establishment Clause, stipulating 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 1997, the Supreme Court, in City of Boerne v. Flores, found that the application of the RFRA to a city zoning ordinance in Texas over a dispute on a wall located on church property was overreaching in terms of its impact on the relationship between states and the federal government under the Tenth Amendment. To this end, the Court invalidated the RFRA as it applied to states. While the Court acknowledged that Congress has authority under Section 5 of the Fourteenth Amendment to legislate rights protected under the Fourteenth Amendment, it may exercise this power in a manner that forbids constitutional state action in an effort to limit unconstitutional actions by state officials.

In response to City of Boerne, Congress amended the RFRA in 2000 by limiting the application of its 1997 version to the federal government. Congress also added a new statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA). Although RLUIPA is not technically an amendment to RFRA, it immediately follows the RFRA in the United States Code (the official compilation of federal statutes) and applies the principles of the RFRA to local and state governments. Insofar as the RLUIPA prohibits any government from imposing or implementing land use regulations that treat religious assemblies or institutions any differently from nonreligious ones or from discriminating against religious assemblies or institutions, it should be of significant interest to officials in religiously affiliated colleges and universities. However, the RLUIPA, unlike the RFRA, is grounded in Congress's spending power and prohibits government at any level from imposing substantial burdens on the religious exercise of individuals in programs or activities that receive federal financial assistance. In addition, the RLUIPA prohibits a substantial burden on religious exercise that affects interstate commerce. The RLUIPA imposes the same “compelling government interest” and “least restrictive means” tests that are required under the RFRA on all levels of government.

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