It’s difficult to imagine in today’s bitterly divided America the political, religious and civic alliance that helped pass the Religious Freedom Restoration Act in 1993, said Amanda Tyler, executive director of Baptist Joint Committee for Religious Liberty.
“This coalition was incredibly broad and diverse. It was everyone from the ACLU to the Family Research Council. It’s really hard to think about those two groups in the same room now, let alone working to pass the same piece of legislation,” she said on a recent episode of BJC’s “Respecting Religion” podcast.
She and BJC General Counsel Holly Hollman devoted the podcast episode to the 30-year anniversary of the historic bill signed into law by President Clinton with bipartisan support in 1993.
RFRA prohibits government from significantly restricting an individual’s free exercise of religion without demonstrating a compelling interest in doing so.
“It means there is a real burden on the government to show why it is necessary to proceed with some kind of governmental interest in a way that burdens someone’s religion,” Hollman said. “And if the government can’t do that, well, the government is going to lose.”
The idea behind the legislation was to codify previously established precedent that had given weight to religious liberty over government policy in many cases, Hollman explained. “It provides protection for religious exercise — you know, that word that we notice in the First Amendment as we think about religious liberty. It implicitly acknowledges that sometimes religion is burdened by government regulations.”
Tyler reflected on the level of inter-governmental cooperation that existed to get RFRA introduced, debated and enacted.
“That feels almost quaint or like a relic from the past because our institutions don’t seem to be in that same kind of dialogue right now about any issue, not just religious freedom.”
“Just going over this history, this feels almost like a relic of the past how these institutions actually worked very well together during this time,” she said. “We see the institutions of government really in conversation with each other, and what ends up is, in the end, a continuing protection for religious freedom for all. I say that feels almost quaint or like a relic from the past because our institutions don’t seem to be in that same kind of dialogue right now about any issue, not just religious freedom.”
RFRA actually had its origins in a coalition of civic and faith groups, including BJC, that were alarmed by the 1990 Supreme Court ruling in Employment Division v. Smith. “It is famous in that it surprised people. It really motivated a lot of reaction, and the majority opinion was written by Justice (Antonin) Scalia,” Hollman said.
Known informally as the “peyote case,” the suit involved two Native American drug counselors fired for failing drug tests. “They failed the drug test because their religion involved religious ceremonies that included the ingestion of the illegal hallucinogenic drug, peyote.”
The two men subsequently were denied unemployment compensation because they had been fired for cause, Hollman said. “They appealed, asserting they had ingested peyote as a sacrament during a worship service at their Native American church, and so to deny them unemployment compensation would be a violation of the First Amendment’s Free Exercise clause.”
Writing for the majority in the 6-3 ruling against the plaintiffs, Scalia argued that improper behavior is not protected under the Constitution simply because it is accompanied by religious conviction. “The court went on to hold that ‘the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability,’” Hollman said.
That ruling took religious liberty advocates by surprise because it contradicted at least two decades of settled law that valued religious freedom over government policy, Tyler said. “Prior to 1990, there were cases where the Supreme Court had interpreted the Free Exercise clause of the First Amendment to mean that only governmental interests of the highest order would justify restrictions on the free exercise of religion.”
The Smith case gave rise to a coalition of other civic and faith groups that forged a legislative strategy to counter the outcome ruling.
“The coalition worked as strong coalitions should in answering concerns as they came up and creating legislation, and then doing the advocacy work on Capitol Hill to find the support for the law,” Tyler said. “And they did find that support. It passed with overwhelming support by both houses of Congress.”
The power of the statute has been demonstrated in high-profile cases like Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal.
“This case came out of the experience of a small American religious group with origins in the Amazon rainforest,” Hollman said. “They sued the federal government under RFRA, seeking to use the hallucinogenic drug hoasca as a part of a sacramental tea in their faith ceremonies.”
The group feared prosecution if they imported and used the drug because it was prohibited under the U.S. Controlled Substances Act. The Supreme Court agreed to hear the case in 2005 and ruled 8-0 the following year in favor of the plaintiffs.
“What this case did was really show the teeth in RFRA. It showed that the statutory language is strong, and the court was willing to look at the intent of RFRA to be broadly protective of religious rights,” Hollman said.
A controversial RFRA case came in 2014 when justices ruled 5-4 that Hobby Lobby was exempt from the contraceptive mandate of the Affordable Care Act due to the religious beliefs of its owners.
“The fact that RFRA applies to corporations wasn’t surprising,” Tyler said. “What was surprising is that RFRA would apply to closely held corporations and that the religious beliefs of the owners of those corporations would be taken into account for RFRA. That was something the original coalition had not contemplated or thought through when they were thinking about the application of the law.”
The views and use of RFRA have become more complex 30 years after its passage, and it does not enjoy the diverse and broad bipartisan support it once did, Tyler said.
“And yet we also see RFRA operating much like Congress thought and the coalition that passed it thought it would operate,” she said. “It’s being used for more conservative causes, like those who have a moral religious objection to abortion or who have differing views of human sexuality than the laws that are protecting LGBTQ rights in society. We also see it being used for more progressive causes, by those who have a religious view that supports the use of abortion, those who have objections to immigration laws as they’re being enforced today.”
But it is, often quietly, doing what it was meant to do, she said. “We should remember that it’s also being used in ways that many of us never hear about but that are protecting sincerely held religious beliefs that are substantially burdened by laws of general application.”
Exploring RFRA in light of Hobby Lobby’s narrow victory | Opinion by Brent Walker and Holly Hollman
Does landmark religious freedom legislation need a fix or is it fine as is? | Analysis by Mark Wingfield