Religious freedom: inherent right or gift of the state?
Inside the First Amendment

By Charles C. Haynes
First Amendment Center senior scholar

Religious freedom won a round in the Supreme Court last week — but only because the justices deigned to let Congress restore through legislation what the Court took away under the First Amendment.

The case, Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, should have been decided under the free-exercise clause of the First Amendment — but it wasn’t. Instead, the Court relied on the Religious Freedom Restoration Act (RFRA), a 1993 federal law prohibiting the government from burdening a person’s religious practice unless a compelling state interest justifies the restriction.

In O Centro Espirita, a unanimous Court ruled that the government failed to demonstrate a “compelling interest” for banning the religious use of hoasca, a hallucinogenic tea used by a small Brazilian-based church known as Uniao Do Vegetal (UDV). The ruling leaves in place a preliminary injunction against the ban, allowing the church to continue using the sacramental tea — at least until a lower court trial gives the government another chance to make the case for enforcing the federal drug law against the church.

Why did UDV members appeal to RFRA instead of invoking their right to free exercise of religion under the First Amendment? Because almost 16 years ago in Employment Division v. Smith the Supreme Court decided that the free-exercise clause doesn’t give religious people the right to seek relief from laws that substantially burden their faith.

Before Smith, the Court often ruled that the First Amendment required government to demonstrate a compelling state interest before denying a religious exemption to a law or regulation. After Smith, the government no longer had to worry about accommodating religious practices that are in conflict with general laws.

Congress reacted to Smith by passing RFRA to restore the compelling-interest test. Four years later, the Supreme Court struck back by declaring RFRA unconstitutional as applied to the states — ruling that Congress had overreached its powers. But the Court was silent on whether or not RFRA still applied to the federal government. Now in the O Centro Espirita case, the Court has answered that question in the affirmative.

Many Americans may be surprised to learn that Congress had to “restore” religious freedom — a right that is supposed to be protected by the First Amendment. In fact, the very purpose of the Bill of Rights was to place certain rights beyond the reach of popular opinion or majority votes.

But these days if you need relief from state laws or regulations that keep you from practicing your faith, forget about the First Amendment — you have to hope that the majority of some legislature will grant an exemption (or you can try invoking the free-exercise protection of your state constitution). If you belong to a minority religion, good luck.

On the federal level, however, religious groups can appeal to RFRA for relief. Now the Supreme Court has not only upheld RFRA, but applied it strongly to protect the religious practice of UDV.

What these legal twists and turns mean for religious Americans is this: The First Amendment no longer does much to protect free exercise of religion from government laws that apply to everyone. Yet a federal law allows religious groups to argue for an exemption — but only when the federal government is involved.

Since few Americans drink hoasca — and arcane acronyms like “RFRA” are confusing — the news media hasn’t done much to inform the public about the outcome of O Centro Espirita. Only when government actions hit home — when laws or regulations are enacted that burden one’s own religious practice — do most people start thinking about the free-exercise clause. But when that happens to you, don’t bother to invoke the First Amendment if you need an exemption in order to practice your faith. On the federal level, appeal to RFRA. Otherwise, go to the state legislature and start lobbying for votes.

The good news from O Centro Espirita is that RFRA still applies — at least to the federal government. The bad news is that protections for religious freedom are subject to the whims of state legislatures.

As the drafters of the First Amendment clearly understood, what a legislature grants today, a legislature can remove tomorrow. Religious freedom is supposed to be an inalienable right — not a gift of the state.

Charles C. Haynes is senior scholar at the First Amendment Center, 1101 Wilson Blvd., Arlington, Va. 22209. E-mail: