capitol longshot

By K. Hollyn Hollman, BJC General Counsel

Recently, I served as a panelist at a symposium hosted by the Religious Freedom Education Project at the Newseum called “Defining religious freedom: Current challenges, future directions.” The day-long event included two well-moderated panels and considerable audience participation, focusing on fundamental questions about religious liberty. With court challenges involving contraception and same-sex marriage as the backdrop, the symposium provided a rare and welcome opportunity for a broad, civil discussion about current and future religious liberty challenges in a changing landscape.

The conversation also reflected a need for more in-depth consideration of the free exercise of religion as we approach the 20th anniversary of the federal Religious Freedom Restoration Act (RFRA). RFRA, of course, is the federal religious liberty statute passed after the U.S. Supreme Court’s harmful opinion in Employment Division v. Smith (1990) that discarded decades of strong constitutional protection for religious exercise. A diverse body of religious liberty and civil rights advocates coalesced to push for corrective federal legislation, culminating in RFRA, which President Bill Clinton signed into law in November 1993. As its name suggests, the law “restored” the pre-Smith First Amendment standard courts use to evaluate free exercise claims.

Under this test, the government may not substantially burden an individual’s free exercise of religion unless it shows it has a compelling reason for doing so, and it has pursued the least restrictive means of accomplishing its important interest. In constitutional law jargon, this is known as “strict scrutiny,” and it ensures that the government must satisfy a high burden of proof before infringing on citizens’ rights. Because the Supreme Court later held that RFRA only applies to the federal government, many states have enacted similar legislation to ensure state government actors are also held to this higher standard.

As of March 2013, 17 states have passed such laws, designed to bolster religious freedom in addition to state constitutional provisions, many of which already provide greater protection than the U.S. Constitution. A majority of these measures were passed in the late 1990s, but several have been proposed in recent months. Not all are identical to the federal RFRA, and controversies over the latest versions reflect changes in the legal and political landscape of state RFRA support — indeed, support for RFRA generally.

Many groups who once supported these laws have since changed course, fearing that RFRAs are being used too expansively in ways that harm other important rights. While RFRA sets a high standard for religious freedom claims, without regard to any particular claim or outcome, its application in the context of civil rights and health care laws has dampened its popularity among some prior advocates. At the same time, others conclude the laws have not done enough to provide meaningful protection for religious liberty and should be strengthened.

Departures in legislative language from the federal RFRA have taken a number of forms. Some proposed measures, like a North Dakota state ballot measure defeated last summer, just say government cannot burden religion, omitting the important modifier that the burden must be substantial. This appears to go beyond what the federal RFRA intended, triggering strict scrutiny of any state law or regulation and easing the way for exemptions. Another feature of several state RFRAs not found in the federal corollary concerns the burden of proof the government must meet in showing its “compelling interest” for the regulation at issue. The Kentucky legislature, for instance, recently overrode the governor’s veto to enact a state RFRA that requires the government to prove its compelling interest by clear and convincing evidence. Though not entirely unprecedented (Idaho and Tennessee use this standard), this language is not part of the federal RFRA and remains largely untested. Critics argue it will make it too easy for religious claimants to prevail.

Finally, a few recently proposed state RFRAs have defined “burden” in novel ways as including indirect burdens such as withholding benefits or exclusion from government programs. This language, not found in the federal RFRA, raises concerns that, in addition to inviting litigation, it will allow government support of religious entities and lead to other conflicts with important no-establishment safeguards.

While it is not surprising that RFRA — like religious liberty in general — is more popular in principle than in its specific applications, research suggests that even among states that have enacted some version of RFRA, there has been scant litigation testing the statutes’ application to various types of claims. Twenty years is long enough to see significant changes in our society, especially when it comes to recognizing the rights of minorities. While change brings challenges, it should not shake our commitment to the standards that have survived the test of time and provided a fair way to protect religious freedom for all.

Video of the March 18 event “Defining religious freedom: Current challenges, future directions” is available from the First Amendment Center website at The first video features the panel discussed in this article.

From the April 2013 Report from the Capital. Click here for the next article.