Indiana and Arkansas recently have passed Religious Freedom Laws. There has been a fierce negative reaction. This piece is not about those laws. Rather, it discusses the Religious Freedom Restoration Act (RFRA) passed by Congress in 1993, in one of its most lucid moments, rejecting the Oregon v. Smith holding of the U.S. Supreme Court.
The First Amendment to the U.S. Constitution provides, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...”
The U.S. Supreme Court has held that a person has an “absolute right” under the “establishment clause” to hold whatever religious beliefs he desires. But the “free exercise” of religion is not unlimited. For example, you have an absolute right to believe that “cannibalism ” is the “true religion.” “Free exercise” of your religion does not allow you to boil and eat your neighbor’s children.
The U.S. Supreme Court discussed the RFRA, and a subsequent piece of Congressional Legislation, the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) extensively in its 2014 Hobby Lobby decision.
“Congress enacted RFRA ... in order to provide very broad protection for religious liberty. RFRA’s enactment came three years after this Court’s decision in ... Oregon v. Smith, ... which largely repudiated the method of analyzing free-exercise claims that had been used in cases like Sherbert and Yoder ... ”
The court then explained why Congress got involved.
“In determining whether challenged government actions violated the Free Exercise Clause of the First Amendment, (Sherbert and Yoder) 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.”
Sherbert involved an employee who had been fired for refusing to work on her sabbath. The court held that she could not be denied unemployment benefits… 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. Recognition had to be given to the fact that their religion required them to focus on uniquely Amish values and beliefs during their formative adolescent years.”
But then In Oregon v. Smith, the court rejected “the balancing test set forth in Sherbert.” 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.
The U.S. Supreme Court then reversed the Oregon Supreme Court, and rejected its own “Sherbert balancing test,” holding “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.”
The Smith court then set out a new test. “Under the First Amendment, “neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.”
Congress appalled, responded to Smith by enacting RFRA. It first found:
“Laws that are 'neutral' toward religion,” ... “may burden religious exercise as surely as laws intended to interfere with religious exercise.”
Then to ensure broad protection for religious liberty, Congress legislated that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” ... 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.”
Then, not satisfied with later Supreme Court decisions, Congress again intervened, passing the RLUIPA to insure that an “expansive” rather than a “restrictive” definition was given to the term “free exercise of religion.”
“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.”…
Indeed, Congress mandated that “free exercise” “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.”
So, why am I writing about the two federal laws when the furor is about Indiana and Arkansas laws? In a future piece I propose to compare/contrast the new state laws with RFRA.
Posted: Saturday, April 9, 2015, 11:00 pm - QCOnline.com
By John Donald O'Shea
Copyright 2015
John Donald O'Shea
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