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Religious Freedom Restoration Act analysis

By Greg Groninger
Research assistant

In 1993, Congress enacted the Religious Freedom Restoration Act (RFRA) in response to the Supreme Court’s 1990 ruling in Employment Division v. Smith. In that ruling, the Court upheld an Oregon law used to deny unemployment benefits to two Native American men who lost their jobs because of their religious use of peyote. The Court determined that neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling government interest.

After Smith, Congress passed RFRA to prevent the government from substantially burdening a person’s free-exercise rights unless the burden furthered a compelling government interest and was the least restrictive means of furthering that interest. Section 2000bb-2(1) declared the law applicable to any form of government — federal, state or otherwise. In applying RFRA to the states, Congress relied on its powers under Section 5 of the 14th Amendment to adopt and enforce laws that protect citizens’ due-process and equal-protection rights. It is on this ground that the Supreme Court ruled RFRA unconstitutional as applied to state and local governments.

The Supreme Court’s ruling came in 1997 in a case involving a zoning dispute in Texas. In 1995, the Catholic archbishop of San Antonio applied for a building permit to enlarge a church in Boerne (pronounced “Bernie”), Texas. Located in a historic district, the church was no longer large enough for its congregation. The zoning board turned down the archbishop’s request, citing historic-preservation laws. The archbishop sued the city, claiming that RFRA required the city to exempt the church from its historic-preservation laws.

The federal district court, however, found that Congress had never had the constitutional authority to enact the law and apply it to the states. The 5th U.S. Circuit Court of Appeals reversed that decision, finding the act constitutional and declaring that the denial of the permit substantially burdened the Catholic diocese’s free exercise of religion. City officials appealed to the Supreme Court.

In City of Boerne v. Flores, the Court said RFRA exceeded Congress’ authority under the 14th Amendment. The Court ruled RFRA was not a proper exercise of Congress’ enforcement power under Section 5 of the amendment because it violated the separation of powers.

Justice Anthony Kennedy, writing for the majority, started from the premise that the judiciary is the branch of government that decides if and when government actions or laws subvert a person’s free exercise of religion.

“Under our Constitution, the Federal Government is one of enumerated powers,” Kennedy wrote, citing the words of then-Chief Justice John Marshall from the 1819 Supreme Court decision McCulloch v. Maryland. “The judicial authority to determine the constitutionality of laws, in cases and controversies, is based on the premise that the ‘powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written,’ ” Kennedy continued, quoting the Court’s 1803 ruling Marbury v. Madison.

In their argument before the high court, attorneys supporting RFRA had insisted that Congress’ intent concerning the law was not to assume the duties of the judiciary, but merely to enforce, with federal legislation, religious-liberty rights as guaranteed by the due-process clause of the 14th Amendment.

Considering the legislative history surrounding Congress’ enactment of RFRA, however, Kennedy failed to see any other intent except to rewrite a judicial legal standard.

“Congress enacted RFRA in direct response to the Court’s decision in Employment Div., Dept. of Human Resources of Ore. v. Smith,” Kennedy said. “Many (lawmakers) criticized the Court’s reasoning [in Smith], and this disagreement resulted in the passage of RFRA.”

It should be noted that even if Congress’ intent in creating RFRA had remained latent, the Court still would have invalidated the law because, again, Congress has no constitutional authority to tell state courts how an alleged violation of a person’s religious liberty should be interpreted.

Kennedy also said that Congress’ constitutional powers cover only enforcement of laws protecting fundamental religious and other liberties.

“Legislation which alters the meaning of the Free Exercise clause (of the First Amendment) cannot be said to be enforcing the Clause,” Kennedy wrote. “Congress does not enforce a constitutional right by changing what the right is. It has been given the power to ‘enforce,’ not the power to determine what constitutes a constitutional violation.”

Kennedy concluded that RFRA radically altered the meaning of religious liberty as defined by the judiciary. That altered meaning could not be enforced on a state or local level, he said.

“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 law,” Kennedy wrote.

The test “ ‘would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind,’ ” he continued, quoting Smith. “This is a considerable congressional intrusion into the State’s traditional prerogatives and general authority to regulate for the health and welfare of their citizens.”

Following the Court’s ruling in Boerne, many states (but not all) began to enact their own versions of RFRA. As yet, no one has challenged a state-enforced RFRA. Although the Court found little wrong substantively with the federal form of RFRA, the Court found its application on a state and local level was unconstitutional. The basic form of state versions of RFRA, however, seems to be constitutional.

Greg Groninger, now graduated from the University of Richmond School of Law, worked as a legal-research intern at the First Amendment Center in summer 2004. Former First Amendment Center writer Jeremy Leaming contributed to this report.


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