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Religious Freedom Restoration Acts (RFRA).
Topics covered in this essay:
During the 1960's and 1970's, a series of decisions by the US Supreme Court supported
individuals' religious freedom by limiting the authority of governments to pass
restrictive legislation. Two important examples were Sherbert v. Verner in 1963 and Wisconsin v. Yoder in 1972.
During the late 1980's, the US Supreme Court's philosophy shifted in the direction of
allowing governments to restrict religious freedom, as long as the limitations applied
equally to all faiths. The US Supreme Court decision of Employment Division v. Smith in 1990 was a key decision in this area. The court ruled that native religious use of
peyote (a hallucinogenic drug) is not a constitutionally protected religious right.
Some native religious traditions had been using peyote in their religious rituals for millennia.
Over 60 religious organizations and civil liberties groups combined to form the Coalition
for the Free Exercise of Religion to fight this trend. They represented both religious liberals and conservatives, and included Native American spiritual groups and
Christian, Jewish, Muslim, Scientology and Sikh religious organizations and a secular Humanist group. The
coalition brought together longtime enemies, like the American Civil Liberties Union and the Concerned Women for America; the Americans United for Separation of
Church & State and the Traditional Values Coalition. The group expanded to include 72 very different organizations who often had
opposite views on almost every other topic.
They promoted the concept of a federal Religions Freedom Restoration Act (RFRA) which
would require governments to:
||Refrain from limiting religious freedom, unless they have a compelling societal reason
for doing so.
||If they need to restrict
religious freedom, then to select the least intrusive method to achieve their goal.
American Atheists were one of the few groups which opposed RFRA.
They complained that it gave "special rights" to
churches, mosques, synagogues, temples and other sectarian organizations.
In a rare move, the House of Representatives, unanimously approved a RFRA bill on
1993-OCT-27. The Senate passed the bill to 97 to 3 with no abstentions on
1993-NOV-3. President Clinton signed it into law on 1993-NOV-16. RFRA became immediately effective .
Dozens of cases subsequently made effective use of this
law. But in other lawsuits, low level courts found that applying the act was unconstitutional in some applications.
One case reached the U.S. Supreme Court. The Roman Catholic Archdiocese of San
Antonio wanted to demolish part of a Catholic church in Boerne, TX. The town refused,
because the local historic ordinances required that the building be
maintained. The church sued under RFRA, in Boerne v. Flores, and lost. The U.S.
Supreme Court ruled in 1997-JUN that RFRA was unconstitutional because it
exceeded the authority of Congress. The high court ruled that RFRA cannot apply to states. Congress responded to this decision by amending RFRA so that it only applies to federal law. This restored RFRA's constitutionality.
The Supreme Court ruling and the RFRA amendment motivated many state governments to pass RFRA-like laws.
Excerpts from the 1993 Religious Freedom Restoration Act, as originally signed into law:
||Short Title: This Act may be cited as the 'Religious Freedom Restoration Act
||Congressional Findings and Declaration of Purposes:
The Congress finds that:
- the framers of the Constitution, recognizing free exercise of religion as an unalienable
right, secured its protection in the First Amendment to the Constitution
- laws 'neutral' toward religion may burden religious exercise as surely as laws intended
to interfere with religious exercise
- governments should not substantially burden religious exercise without compelling
- in Employment Division v. Smith, 494 US 872 (1990) the Supreme Court virtually
eliminated the requirement that the government justify burdens on religious exercise
imposed by laws neutral toward religion; and the compelling interest test as set forth in
prior Federal court rulings is a workable test for striking sensible balances between
religious liberty and competing prior governmental interests.
The purposes of this Act are
- to restore the compelling interest test as set forth in Sherbert v. Verner, 374
US 398 (1963) and Wisconsin v. Yoder, 406 US 205 (1972) and to guarantee its
application in all cases where free exercise of religion is substantially burdened; and
- to provide a claim or defense to persons whose religious exercise is substantially
burdened by government.
||Free Exercise of Religion Protected:
||(a) In General: Government shall not substantially burden a person's exercise of
religion even if the burden results from a rule of general applicability, except as
provided in subsection (b).
||(b) Exception: Government may substantially burden a person's exercise of
religion only if it demonstrates that application of the burden to the person
- is in furtherance of a compelling governmental interest; and
- is the least restrictive means of furthering that compelling governmental interest.
||Judicial Relief: A person whose religious exercise has been burdened in violation
of this section may assert that violation as a claim or defense in a judicial proceeding
and obtain appropriate relief against a government. Standing to assert a claim or defense
under this section shall be governed by the general rules of standing under article III of
||Definitions: As used in this Act
- the term 'government' includes a branch, department, agency, instrumentality, and
official (or other person acting under color of law) of the United States, a State, or a
subdivision of a State;
- the term 'State' includes the District of Columbia, the Commonwealth of Puerto
Rico, and each territory and possession of the United States;
- the term 'demonstrates' means meets the burdens of going forward with the
evidence and of persuasion; and
- the term 'exercise of religion' means the exercise of religion under the First
Amendment to the Constitution.
||(a) In General. This Act applies to all Federal and State law, and the
implementation of that law, whether statutory or otherwise, and whether adopted before or
after the enactment of this Act.
||(b) Rule of Construction. Federal statutory law adopted after the date of the
enactment of this Act is subject to this Act unless such law explicitly excludes such
application by reference to this Act.
||(c) Religious Belief Unaffected. Nothing in this Act shall be construed to
authorize any government to burden any religious belief.
||Establishment Clause Unaffected.
Nothing in this Act shall be construed to affect, interpret, or in any way address that
portion of the First Amendment prohibiting laws respecting the establishment of religion
(referred to in this section as the 'Establishment Clause'). Granting government
funding, benefits, or exemptions, to the extent permissible under the Establishment
Clause, shall not constitute a violation of this Act. As used in this section, the term
'granting', used with respect to government funding, benefits, or exemptions, does not
include the denial of government funding, benefits, or exemptions. 1,2,3
RFRA declared unconstitutional:
A lawsuit (Boerne v. Flores) involved the Roman Catholic Archbishop of San Antonio,
TX. The city of Boerne TX refused to issue a construction permit to allow the church to
expand into a historical district. The church sued, and the federal judge determined that
the RFRA act was unconstitutional. The city argued that the act violates the 10th
Amendment rights of states and local governments. That ruling was reviewed by several
appeal courts which found the act constitutional.
In addition, many unrelated cases had been initiated under the RFRA by prison inmates who charged
that prison regulation of clothing, diet, etc. are violations of their religious beliefs.
Many of these are nuisance suits. The states of Delaware, Florida, Hawaii, Idaho,
Illinois, Iowa, Minnesota, Mississippi, Nevada, New Hampshire, North Carolina, Ohio,
Oklahoma, Pennsylvania, South Dakota and Vermont filed "amicus
curia" (friend of the court) briefs supporting the city of Boerne. They complained that the RFRA act disrupted
prison life by allowing "gangs and like-minded groups to shroud illicit activity
under the cover of 'religious' belief."
The US Supreme Court agreed to hear a repeal of the case, which had both religious freedom and
states rights aspects. In a landmark ruling, on 1997-JUN-25, they declared the act
unconstitutional. In a 6 to 3 decision, the Supreme Court ruled that the law gave the
practice of religion more protection than the court had found to be constitutionally
required. Three of the court's most conservative members (Chief Justice William Rehnquist
and Justices Antonin Scalia and Clarence Thomas) for once found themselves agreeing with two of the most liberal justices (John Paul Stevens and Ruth Bader
Justice Anthony Kennedy prepared the majority opinion. He wrote (in part):
"RFRA is not a proper exercise of Congress' ... enforcement power because it
contradicts vital principles necessary to maintain separation of powers and the federal
state balance...RFRA's legislative record lacks examples of any instances of generally
applicable laws passed because of religious bigotry in the past 40 years. Rather, the
emphasis of the RFRA hearings was on laws like the one at issue that place incidental
burdens on religion. It is difficult to maintain that such laws are based on animus or
hostility to the burdened religious practices or that they indicate some widespread
pattern of religious discrimination in this country.
RFRA's most serious shortcoming,
however, lies in the fact that it is so out of proportion to a supposed remedial or
preventive object that it cannot be understood as responsive to, or designed to prevent,
unconstitutional behavior. It appears, instead, to attempt a substantive change in
constitutional protections, proscribing state conduct that the Fourteenth Amendment itself
does not prohibit. Its sweeping coverage ensures its intrusion at every level of
government, displacing laws and prohibiting official actions of almost every description
and regardless of subject matter. Its restrictions apply to every government agency and
official...and to all statutory or other law, whether adopted before or after its
enactment...It has no termination date or termination mechanism. Any law is subject to
challenge at any time by any individual who claims a substantial burden on his or her free
exercise of religion. Such a claim will often be difficult to contest. Requiring a State
to demonstrate a compelling interest and show that it has adopted the least restrictive
means of achieving that interest is the most demanding test known to constitutional
"All told, RFRA is a considerable congressional intrusion into the States'
traditional prerogatives and general authority to regulate for the health and welfare of
their citizens, and is not designed to identify and counteract state laws likely to be
unconstitutional because of their treatment of religion."
Justice John Paul Stevens stated that the Act violated the principle of
separation of church and state, by preferring religion over irreligion.
This gave to religious groups special privileges which no atheist
could hope to attain. He wrote:
"If the historic landmark on a hill in Boerne
happened to be a museum or an art gallery owned by an atheist, it would not be
eligible for an exemption from the city ordinance that forbid demolition of the
structure. Because the landmark is owned by the Catholic Church, it is claimed
that RFRA gives its owner a federal statutory entitlement to an exemption from a
generally applicable, neutral civil law. Whether the Church would actually
prevail under the statute or not, the statute has provided the Church with a
legal weapon that no atheist or agnostic can obtain. This government preference
for religion, as opposed to irreligion, is forbidden by the First Amendment." 6
The Supreme Court indicated that similar bills might be constitutional if passed by
individual states. 4
Reactions to the Supreme Court action:
A related effort on religious freedom
Rep Istook (D-OK) proposed an amendment to the US Constitution which would largely remove the wall of separation between church and state. The amendment
would over-write the First Amendment, and give individuals and groups who followed a
majority faith group to impose their will over any minorities. For example:
- Public school
children could be forced to either recite a prayer or ask to be excused. The latter might
leave them open to harassment and attacks by a majority of students.
- The government of Utah could
declare itself a Mormon state.
The amendment failed to win a 2/3 majority in the House on
1998-JUN-4. Similar amendments have been introduced since, without success.
Other federal RFRA bills:
A federal bill to replace RFRA, the Religious Liberty Protection
Act, passed the House but died in the Senate.
the Religious Land Use and Institutionalized Persons Act (RLUIPA), was
passed by Congress and signed into law on 2000-SEP-22. It restricts
governments from interfering with the religious use of land. It also
guaranteed religious freedom to inmates of institutions.
the Sixth U.S. Circuit Court of Appeals declared that the RLUIPA law had
"the primary effect of advancing religion." They thus found that
it violated the First Amendment of the U.S. Constitution which draws a wall between church and state.
2018: Effort by the federal Democratic Party to repeal RFRA:
Tony Perkins of the Family Research Council wrote in his Washington Update for 2018-NOV-14, that after the recently completed midterm elections there are 172 Democratic members of Congress who want to repeal the federal RFRA act. The Democratic Party achieved control of the House after the midterms, but the Senate remains under the control of Republicans. So, it is unlikely that a repeal will be possible. 8
In most recent religious freedom disputes, it has been the owner(s) of a Public Accommodation -- an organization that offers goods and services to the general public -- who wants the religious freedom to discriminate against their own customers. Examples are bakeries, florists, professional photographers, etc. In most cases, they wish to exercise their relgioius freedom to discriminate against the LGBT community, in violation of the Golden Rule.
Related essays on this web site:
- The full text of the RFRA Act and additional information can be obtained from the Christian
Science Committee on Publications web site at: http://northshore.shore.net/rf/rfratop.html
- The FindLaw WWW site has brief descriptions of important court decisions
effecting religious freedom in the US. See: http://w3.trib.com/FACT/1st.religion.html
- An essay: "Watch the Grave of James Madison" discusses the
establishment clause of the US Constitution, and the wall of separation between church and
state. See: http://www.sunnetworks.net/~ggarman/grave.html
- The text of the 1997-JUN decision of the Supreme Court can be read in HTML or
WordPerfect formats at: http://supct.law.cornell.edu/supct/html/95-2074.cpanel.html Included are the 28 page decision (Kennedy), two Concurrences (Stevens,
Scalia), and three
dissents (O'Connor, Souter and Breyer).
- http://www.religious-freedom.org/rfratop.html contains detailed information, including the full text of the law and a list of court
cases that have cited the RFRA.
- "Circuit Court strikes down religious 'special rights' statute,"
- Erin Krcatovich, "Religious Freedom Restoration Act: Summary," Study.com, at: https://study.com/
- Tony Perkins, et al., "House Dems out to Get Religion," Family Research Council, 2018-NOV-15, at:https://www.frc.org
Copyright © 1998 to 2018 by Ontario Consultants
on Religious Tolerance
Latest update: 2018-NOV-15
Author: B.A. Robinson