April 3, 2020
The Religious Freedom Restoration Act: A Primer
The Religious Freedom Restoration Act of 1993 (RFRA)
In 1993, Congress enacted RFRA in direct response to
establishes rights beyond those protections afforded by the
Smith. In its statutory findings, Congress expressed its
Constitution’s free exercise clause by creating a heightened
disagreement with the Smith decision by concluding that
standard of review for government actions that substantially
Sherbert’s compelling interest test is more workable for
burden a person’s exercise of religion. This In Focus
“striking sensible balances between religious liberty and
provides an overview of the statute, including its origins,
competing prior governmental interests.” In its original
how it operates, and how the Supreme Court has interpreted
form, RFRA applied to all government action at the federal,
the law since its passage.
state, and local levels. Congress justified applying the law
to the states by relying on Section 5 of the Fourteenth
Background
Amendment, which grants “Congress the power to enforce,
The First Amendment provides that the government “shall
by appropriate legislation, the provisions of” the Fourteenth
make no law respecting an establishment of religion, or
Amendment, which, among other things, has been
prohibiting the free exercise thereof.” According to the
interpreted to require state compliance with the First
Supreme Court, the clause protects individuals’ right to
Amendment. Congress has since amended RFRA so that it
exercise their religion of choice and prohibits government
applies only to federal entities.
regulations that target religious beliefs. The free exercise
clause protects not only religious beliefs but acts involved
RFRA
with religious practice. Under the clause, the government
RFRA imposes a heightened standard of review for
may not compel religious belief, punish religious
government actions—including rules of general
expression, or impose regulations that favor one religion
applicability—that “substantially burden” a person’s
over another.
religious exercise. The statute does not define the term
substantial burden, but the phrase appears to have
The Supreme Court’s interpretation of whether the clause
originated from free exercise case law, which holds that
requires religious accommodation to neutral, generally
such burdens exist when an individual is required to choose
applicable laws (as opposed to laws that specifically target
between following his or her religious beliefs and receiving
a religious practice) has changed over time. In Sherbert v.
a governmental benefit or when an individual must act
Verner, 374 U.S. 398 (1963), the government denied a
contrary to his or her religious beliefs to avoid facing legal
claimant unemployment compensation benefits for failure
penalties. Importantly, this case law suggests that when
to accept available work because she had declined to work
evaluating an individual’s free exercise claim, courts should
on Saturdays for religious reasons. The Court reasoned,
defer to parties’ assertions about their sincerely held
based on the facts of the case, that if a generally applicable
religious beliefs. Once a party has established a substantial
law imposes a religious burden on an individual, that person
burden, the action is valid only if the government shows
could seek an exemption from the law unless the
that the burden is (1) in furtherance of a compelling
government could show that the burden was justified by a
governmental interest and (2) the least restrictive means of
compelling government interest—a high standard to meet.
furthering that interest. This standard is high, but not
impossible, for the government to meet.
The Court, however, departed from this framework in
Employment Division v. Smith, 494 U.S. 872 (1990), when
To enforce its provisions, RFRA creates a private cause of
it held that the free exercise clause does not exempt
action for persons whose religious exercise has been
individuals from compliance with generally applicable laws
substantially burdened, allowing them to “assert that
and does not require the government to show a compelling
violation as a claim or defense in a judicial proceeding and
interest in applying such laws to a particular individual. In
obtain appropriate relief against a government.”
Smith, two members of the Native American Church were
denied unemployment benefits after they were fired for
City of Boerne v. Flores
ingesting peyote as part of a religious ceremony. The Court
The scope of RFRA changed as a result of City of Boerne v.
held that religious exemptions from generally applicable
Flores, 521 U.S. 507 (1997), where the Court held that
laws should come from the legislative process. Nonetheless,
RFRA’s application to states and local governments was
even after Smith, Supreme Court precedent still requires the
beyond Congress’s power under Section 5 of the Fourteenth
application of the compelling interest test in free exercise
Amendment. The Section 5 power, according to the Court,
cases involving government action that intentionally (rather
is “remedial,” allowing Congress to act only in instances
than incidentally) burdens religious exercise and in cases
where there is evidence of a pattern of conduct that violates
involving religious exemptions in programs that allow for
the Fourteenth Amendment. The Court determined that
individualized assessments.
because Congress had not established a widespread pattern
of religious discrimination, RFRA could not be justified as
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The Religious Freedom Restoration Act: A Primer
a remedial measure designed to prevent unconstitutional
requirement that these corporate entities provide, through
conduct. Instead, the Court viewed RFRA as an attempt to
their health insurers, cost-free contraceptives to their
substantively change the meaning of the free exercise
employees substantially burdened the owners’ exercise of
clause, which was outside of Congress’s power over the
religion and was not the least restrictive means of achieving
states. As a result of the Court’s decision, RFRA no longer
the government’s interest in mandating such coverage.
applies to states or localities but continues to constrain
Deferring to plaintiffs’ views that the government’s
federal government action. Many states, however, have
mandate had the effect of facilitating the commission of an
passed their own versions of RFRA that apply to state and
immoral act in violation of their sincere religious beliefs,
local laws of general applicability.
the Court invalidated the challenged law as it applied to the
owners because of the availability of other alternatives for
RLUIPA
the government to achieve its interests.
In 2000, in the wake of the City of Boerne decision,
Congress, relying on its commerce and spending clause
A year later in Holt v. Hobbs, 574 U.S. 352 (2015), the
powers, passed the Religious Land Use and
Supreme Court applied RLIUPA to hold that a policy
Institutionalized Persons Act of 2000 (RLUIPA). RLUIPA
prohibiting prisoners from growing half-inch beards
institutes a compelling interest test that mirrors the RFRA
substantially burdened a Muslim inmate’s sincerely held
test for specific types of state actions. Under RLUIPA, state
religious beliefs. The Court determined that the state failed
and local governments may not implement land use
to demonstrate how its prohibition furthered its stated
regulations in a way that imposes a substantial burden on
compelling interest in preventing prisoners from hiding
the religious exercise of a person or religious institution
contraband or disguising their identities. Moreover, the
unless the government can demonstrate that the regulation
Court held that the state failed to prove that other
is in furtherance of a compelling government interest and is
alternative policies would not sufficiently serve its security
the least restrictive means of furthering that government
interests.
interest. The statute defines land use regulation as a
“zoning or landmarking law” that limits the use or
Considerations for Congress
development of land.
The meaning of RFRA, RLUIPA, and the free exercise
clause continue to be litigated, including before the
Also under RLUIPA, any state or local government
Supreme Court. Among those issues being explored are
accepting federal financial assistance is prohibited from
what constitutes a significant burden or compelling interest
imposing substantial burdens on the religious exercise of
under RFRA and what remedies are available to those who
individuals who are confined to an “institution.” Under the
prove a RFRA violation in court. The Supreme Court has
statute, institutions include jails, prisons, correctional
also signaled its interest in revisiting its Smith decision and
facilities, institutions for individuals who are mentally ill or
the constitutional standard for reviewing generally
disabled, pretrial detention facilities, and institutions for
applicable laws, which may have wide-ranging implications
juveniles held awaiting trial or needing care or treatment.
for the future of free exercise rights.
Supreme Court Interpretation of RFRA
Against the backdrop of this litigation, as RFRA and
and RLUIPA
RLUIPA themselves demonstrate, Congress is authorized to
The Supreme Court has had several occasions to interpret
take certain responses to the continuing development of
RFRA and RLUIPA. In Gonzales v. O Centro Espirita
religious liberty jurisprudence. Legislatively, RFRA
Beneficente Uniao do Vegetal, 546 U.S. 418 (2006), the
expresses Congress’s intent to “provide very broad
Court emphasized that RFRA’s test is satisfied only if the
protection for religious liberty.” Within RFRA, Congress
government demonstrates a compelling interest in the
included a “Rule of Construction” that states that all
specific application of the law to the particular claimant
prospective federal action is subject to RFRA’s provisions
whose religious rights are burdened rather than a
“unless such law explicitly excludes such application by
compelling interest in the uniform application of the law.
reference to this chapter.” This provision allows RFRA to
The Court concluded as such in holding that the
be displaced in certain contexts. For example, the Equality
government had failed to demonstrate a compelling interest
Act (H.R. 5), passed by the House in the 116th Congress,
in applying the Controlled Substances Act to bar a church
would explicitly waive RFRA’s application to that statute
using a tea that contained hallucinogens regulated under
by providing that RFRA “shall not provide a claim
that statute during religious services.
concerning, or a defense to a claim under, a covered title, or
provide a basis for challenging the application or
The Court has also considered who can be “persons” under
enforcement of a covered title.” In the alternative, to avoid
the statute and what constitutes a “substantial burden” on
litigation over RFRA’s scope, Congress can always confirm
exercising religion. In Burwell v. Hobby Lobby Stores, Inc.,
RFRA’s application in newly enacted legislation. For
573 U.S. 682 (2014), observing that a corporation “is
example, the Preventing Animal Cruelty and Torture Act
simply a form of organization used by human beings to
(P.L. 116-72) includes a provision that states, “This section
achieve desired ends,” the Court first held that the term
shall be enforced in a manner that is consistent with section
person within RFRA applies to closely held for-profit
3 of the Religious Freedom Restoration Act of 1993.”
corporations and that RFRA’s protections extend to the
religious practices of those who own and control for-profit
Whitney K. Novak, Legislative Attorney
corporations. The Court then applied the statutory
compelling interest test to conclude that a government
IF11490
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The Religious Freedom Restoration Act: A Primer
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