Religious Freedom Restoration Act

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The Religious Freedom Restoration Act (RFRA), codified at 42 U.S.C. § 2000bb, is a federal law requiring strict scrutiny to be used by courts in reviewing burdens on the free exercise of religion under the First Amendment. RFRA was passed in 1993 in response to the ruling by the U.S. Supreme Court in Employment Div. v. Smith (1990), which made it harder for people to challenge restrictions on their exercise of religion. RFRA has been described by legal commentators as "the most important congressional action with respect to religion since the First Congress proposed the First Amendment."[1] While the bill was originally passed with bipartisan support, Democrats, who have since grown significantly more left-wing, have become opposed to the bill.[2]

In the landmark Hobby Lobby decision (2014), Justice Sam Alito explained the background for RFRA:

Congress enacted RFRA in 1993 in order to provide very broad protection for religious liberty. RFRA’s enactment came three years after this Court’s decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990), which largely repudiated the method of analyzing free-exercise claims that had been used in cases like Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963), and Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972). In determining whether challenged government actions violated the Free Exercise Clause of the First Amendment, those decisions used a balancing test that took into account whether the challenged action imposed a substantial burden on the practice of religion, and if it did, whether it was needed to serve a compelling government interest. Applying this test, the Court held in Sherbert that an employee who was fired for refusing to work on her Sabbath could not be denied unemployment benefits. 374 U.S., at 408-409, 83 S. Ct. 1790, 10 L. Ed. 2d 965. And in Yoder, the Court held that Amish children could not be required to comply with a state law demanding that they remain in school until the age of 16 even though their religion required them to focus on uniquely Amish values and beliefs during their formative adolescent years. 406 U.S., at 210-211, 234-236, 92 S. Ct. 1526, 32 L. Ed. 2d 15.

In Smith, however, the Court rejected “the balancing test set forth in Sherbert.” 494 U.S., at 883, 110 S. Ct. 1595, 108 L. Ed. 2d 876. Smith concerned two members of the Native American Church who were fired for ingesting peyote for sacramental purposes. When they sought unemployment benefits, the State of Oregon rejected their claims on the ground that consumption of peyote was a crime, but the Oregon Supreme Court, applying the Sherbert test, held that the denial of benefits violated the Free Exercise Clause. 494 U.S., at 875, 110 S. Ct. 1595, 108 L. Ed. 2d 876.

This Court then reversed, observing that use of the Sherbert test whenever a person objected on religious grounds to the enforcement of a generally applicable law “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” 494 U.S., at 888, 110 S. Ct. 1595, 108 L. Ed. 2d 876. The Court therefore held that, under the First Amendment, “neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.” City of Boerne v. Flores, 521 U.S. 507, 514, 117 S. Ct. 2157, 138 L. Ed. 2d 624 (1997).

Congress responded to Smith by enacting RFRA. “[L]aws [that are] ‘neutral’ toward religion,” Congress found, “may burden religious exercise as surely as laws intended to interfere with religious exercise.” 42 U.S.C. §2000bb(a)(2); see also §2000bb(a)(4). In order to ensure broad protection for religious liberty, RFRA provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” §2000bb-1(a). If the Government substantially burdens a person’s exercise of religion, under the Act that person is entitled to an exemption from the rule unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” §2000bb-1(b).

As enacted in 1993, RFRA applied to both the Federal Government and the States, but the constitutional authority invoked for regulating federal and state agencies differed. As applied to a federal agency, RFRA is based on the enumerated power that supports the particular agency’s work, but in attempting to regulate the States and their subdivisions, Congress relied on its power under Section 5 of the Fourteenth Amendment to enforce the First Amendment. 521 U.S., at 516-517, 117 S. Ct. 2157, 138 L. Ed. 2d 624. In City of Boerne, however, we held that Congress had overstepped its Section 5 authority because “[t]he stringent test RFRA demands” “far exceed[ed] any pattern or practice of unconstitutional conduct under the Free Exercise Clause as interpreted in Smith.” Id., at 533-53, 117 S. Ct. 2157, 138 L. Ed. 2d 6244. See also id., at 532, 117 S. Ct. 2157, 138 L. Ed. 2d 624.

Following our decision in City of Boerne, Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U.S.C. §2000cc et seq. That statute, enacted under Congress’s Commerce and Spending Clause powers, imposes the same general test as RFRA but on a more limited category of governmental actions. See Cutter v. Wilkinson, 544 U.S. 709, 715-716, 125 S. Ct. 2113, 161 L. Ed. 2d 1020 (2005). And, what is most relevant for present purposes, RLUIPA amended RFRA’s definition of the “exercise of religion.” See §2000bb-2(4) (importing RLUIPA definition). Before RLUIPA, RFRA’s definition made reference to the First Amendment. See §2000bb-2(4) (1994 ed.) (defining “exercise of religion” as “the exercise of religion under the First Amendment”). In RLUIPA, in an obvious effort to effect a complete separation from First Amendment case law, Congress deleted the reference to the First Amendment and defined the “exercise of religion” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” §2000cc-5(7)(A). And Congress mandated that this concept “be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” §2000cc-3(g).

Burwell v. Hobby Lobby Stores, 134 S. Ct. 2751, 2760-62 (2014).

Notice that in City of Boerne v. Flores (1997), the U.S. Supreme Court invalidated the RFRA to the extent it applied against the states. Congress reacted by passing the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000.

Overall, the U.S. Supreme Court has issued a dozen decisions mentioning RFRA between 1994 and the end of 2015, with the most recent ranking first:

  • Holt v. Hobbs, 135 S. Ct. 853
  • Wheaton College v. Burwell, 134 S. Ct. 2806
  • Burwell v. Hobby Lobby Stores, 134 S. Ct. 2751
  • Hobby Lobby Stores v. Sebelius, 133 S. Ct. 641 (denying Hobby Lobby's request for emergency relief of an injunction)
  • Sossamon v. Texas, 563 U.S. 277 (holding that sovereign immunity protected Texas against damages to a state prison inmate based on prison policies concerning religious worship)
  • Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (concerning a sacramental tea containing a controlled substance)
  • Cutter v. Wilkinson, 544 U.S. 709 (denying an attempt by prison officials to dismiss a claim by inmates who complained of a lack of accommodation of their religions that were outside of the mainstream)
  • Tennessee v. Lane, 541 U.S. 509 (upholding the authority of Congress to abrogate sovereign immunity for states under the Americans with Disabilities Act)
  • Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (holding that the abrogation of state immunity exceeded Congress' authority under § 5 of the Fourteenth Amendment, and thus was invalid despite the intent of Congress to abrogate immunity, with respect to the Age Discrimination in Employment Act of 1967, also known as "ADEA"[3])
  • Fla. Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627 (holding that the Patent Remedy Act was not a valid abrogation of immunity by states under the Eleventh Amendment, because the statute could not be sustained as proper legislation for enforcement of the Due Process Clause of the Fourteenth Amendment)
  • City of Boerne v. Flores, 521 U.S. 507 (1997) (invalidating RFRA with respect to application against states, because it went beyond the valid enforcement powers of the Fourteenth Amendment)
  • Swanner v. Anchorage Equal Rights Comm'n, 513 U.S. 979 (1994) (in a denial of certiorari, Justice Thomas mentioned RFRA in his solitary dissent "to resolve whether, under RFRA, an interest in preventing discrimination based on marital status is sufficiently 'compelling' that respondent may substantially burden petitioner's exercise of religion")

The U.S. Court of Appeals, meanwhile, has issued nearly 2000 decisions mentioning RFRA during this same two-decade period.

There are more than twice as many precedents on the Religious Land Use and Institutionalized Persons Act, which applies the same compelling interest/least restrictive means test against state and local governments with respect to land use and institutional facilities such as prisons.


  1. Douglas Laycock & Oliver S. Thomas, Interpreting the Religious Freedom Restoration Act, 73 Tex. L. Rev. 209, 243 (1994) ("RFRA is not a mere technical change from Smith. Rather, it restores a fundamentally different vision of human liberty.").
  2. Russell, Keisha (December 10, 2018). 25 Years of the Religious Freedom Restoration Act. Washington Examiner. Retrieved December 10, 2018.
  3. Interestingly, this case was argued for the states by future Sixth Circuit judge Jeffrey Sutton.