Article Jan 18, 2018

5 facts about the Religious Freedom Restoration Act

On Tuesday President Trump issued a proclamation for Religious Freedom Day, an annual national observance that recognizes the importance of protecting the religious freedom of all Americans. In honor of the commemoration, here are five facts about the Religious Freedom Restoration Act, the most significant law to protect religious liberty law since the adoption of the First Amendment.

1. The Religious Freedom Restoration Act (RFRA) is a federal law passed in 1993 that is intended to prevent other federal laws from substantially burdening a person's free exercise of religion. The legislation was introduced by Rep. Chuck Schumer (D-NY) on March 11, 1993 and passed by a unanimous U.S. House and a near unanimous U.S. Senate with three dissenting votes. The bill was signed into law by President Bill Clinton.

2.  According to the text of the law, the purposes of the RFRA are: (1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and (2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government. In the 1963 case Sherbert v. Verner the Court expressly adopted the constitutional exemption model, under which sincere religious objectors had a presumptive constitutional right to an exemption because of the Free Exercise clause. The court reaffirmed this position in the 1972 case, Wisconsin v. Yoder. But in 1990, the Supreme Court case Employment Division, Department of Human Resources of Oregon returned to the statute-by-statute exemption regime, and rejected the constitutional exemption regime.

3. The RFRA states 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 is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest. A person whose religious exercise has been burdened in violation of this law may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.

4. When it was passed in 1993, Congress intended RFRA to apply to all branches of government, and both to federal and state law. But in 1997 in the case of City of Boerne v. Flores, the Supreme Court ruled the RFRA exceeded federal power when applied to state laws. In response to this ruling, some individual states passed state-level Religious Freedom Restoration Acts that apply to state governments and local municipalities. Currently, there are 21 states that have passed a Religious Freedom Restoration Act that is based on or is similar to the federal act. Those states are Alabama, Arizona, Arkansas, Connecticut, Florida, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, and Virginia. Ten other states have religious liberty protections that state courts have interpreted to provide a similar (strict scrutiny) level of protection. Those states are Alaska, Hawaii, Maine, Massachusetts, Michigan, Minnesota, Montana, Ohio, Washington, and Wisconsin.

5. The most high-profile federal case that relied on RFRA was the 2014 case Burwell v. Hobby Lobby Stores, a challenge to the Affordable Care Act’s Health and Human Services (HHS) contraceptive mandate that required all for-profit companies to cover abortion-inducing drugs—even against the religious objections of these businesses’ owners. The Court found that the HHS mandate violated RFRA because it imposed a substantial burden (i.e., if the companies refused to violate their beliefs, they would face severe economic consequences). The government also failed to satisfy RFRA’s least restrictive-means standard, since the government could assume the cost of providing the four contraceptives to women unable to obtain coverage due to their employers’ religious objections or extend the accommodation that HHS has already established for religious nonprofit organizations to non-profit employers with religious objections to the contraceptive mandate.