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From BJC Staff Reports

A Nov. 7 symposium celebrated the Religious Freedom Restoration Act of 1993 as a singular legislative accomplishment and explored contemporary controversies regarding the free exercise of religion.

Former BJC General Counsel Oliver “Buzz” Thomas began the day recounting the history of RFRA, noting that it is more than a civil rights law. “It’s about what it means to be an American,” Thomas said, pointing to how diverse religious views are all protected under RFRA.

The genesis of the legislation can be traced to the U.S. Supreme Court’s 1990 Employment Division v. Smith decision. In Smith, the Court announced that the First Amendment is not violated when neutral, generally applicable laws conflict with religious practices. The decision generated widespread concern that religious groups would be vulnerable to government burdens on religion.

Thomas said that the harmful impact was immediate. “[W]e saw in just a few short years about 50 reported cases – so [there’s] no telling how many hundreds of instances – where religious claims simply lost. They never got a real day in court.”

Thomas chaired the broad and diverse Coalition for the Free Exercise of Religion, which worked to pass legislation to restore religious liberty protections diminished by the Smith decision. Their bill was the Religious Freedom Restoration Act, which stalled in the 101st and 102nd Congresses over fears ranging from its potential to create a claim for religiously-motivated abortion to its possible impact on the tax-exempt status of religious organizations. The coalition worked to make clear that RFRA did not “expand, contract or alter the ability of a claimant to obtain relief” beyond the pre-Smith state of the law. The proposed statute was amended to clarify that the legislation did not affect the First Amendment’s Establishment Clause, which prohibits government establishment of religion.

These changes secured necessary support and cleared the way for the bill to pass the 103rd Congress with a unanimous voice vote in the U.S. House of Representatives and by a 97-3 vote in the U.S. Senate.

“We were at the mercy of government, but RFRA changed that, and it restored this delicate balance between church and state of requiring the government to justify restrictions on religious practice,” Thomas said.

He remarked that RFRA has become less popular over time as it has been applied to cases, creating winners and losers. But, Thomas said that should not be a concern. “It was the same way with the First Amendment.”

Thomas also joined the day’s first panel, moderated by BJC General Counsel Holly Hollman, which brought together a group of religious liberty advocates who were key members of the coalition formed in the early 1990s. The panelists recalled the legal and political climate in the wake of the Smith decision and the widely perceived need for a statutory solution. They described the challenges that arose among and beyond coalition members during the legislative process and the methods used to maintain broad support.

In response to an audience question, Thomas said RFRA quite likely would not pass today. He called it “a pretty dicey proposition,” especially since polls show many Americans think that even the First Amendment goes too far in the rights it guarantees.

After the first discussion, the event provided a video presentation highlighting four stories of people who have relied on statutory protections for religious exercise. “Faces of Free Exercise” featured stories ranging from a Christian church who feels called to feed the homeless to Native Americans whose religious beliefs demand they protect sacred lands.

The second panel focused on current disputes over the Affordable Care Act’s contraceptive mandate, which some employers have challenged based on religious objections to providing insurance coverage for certain types of contraception. Lori Windham, senior counsel at the Becket Fund for Religious Liberty, argued that employers with religious objections to these services should not be “required to participate in something [their] faith teaches is wrong … .” Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief, countered that any burden on for-profit employers’ conscience arising from the mandate is too attenuated to raise viable claims under RFRA. “These companies are not required to use contraception themselves. They’re not required to endorse it. They’re merely required to make it available as one of many … covered services,” he said.

Douglas Laycock, professor at the University of Virginia School of Law and one of the primary drafters of RFRA, gave the second keynote address. He frankly discussed some of the current controversies and challenges regarding the protection of religious liberty in many areas, including the contraception mandate and same-sex marriage laws.
“The biggest problem for religious liberty in our time is deep disagreement about sexual morality,” he said. “The tendency of both sides to insist on a total win – liberty for them and not for the other – is a very bad thing for religious liberty.”

The conference concluded with a forward-looking panel discussion on contemporary challenges to religious liberty. Panelists representing different faith perspectives discussed the current lack of consensus on the meaning of free exercise in America and the harm being wrought by divisions over same-sex marriage as well as by over-simplified — and often sensationalist — media coverage of other religious disputes.

Dahlia Lithwick of Slate magazine shared her experiences covering religion and observed that language used in the press often isolates opposite schools of thought. “I think no one is more to blame for that polarization than the media,” she said, noting that pieces that are “fiery takedowns” often get more traction than thoughtful articles sharing a variety of perspectives.

One of the main points of discussion was whether or not building a coalition like the one behind RFRA would be possible in today’s polarized political climate. Marc Stern of the American Jewish Committee said, “It’s gone … When I was young, we thought of religious liberty as, ‘I don’t have to agree with you, but I have to agree to let you live your life.’ … The debate is now, ‘Do I think what you’re doing is right?’ … For neither side should that be a winning proposition. But that is the way the battle is now shaping up.”

Kim Colby of the Christian Legal Society deflected Stern’s accusation that religious conservatives have grown “completely tone-deaf,” and she seconded Doug Laycock’s claim that the culture has “turned its back on pluralism and on genuine diversity.”

The panelists seemed to agree that a more civil dialogue and a willingness to embrace respectful pluralism are necessary to regain some of the ground that has been lost in the two decades since RFRA’s passage.

Check out the following resources from the symposium:

Visit the BJC’s page on the 20th anniversary symposium.

Read a booklet prepared by the BJC with more on RFRA, including a timeline and signing remarks from President Bill Clinton
• Watch “Faces of Free Exercise” to hear stories from people who rely on RFRA
• See more photos from the day’s event
• Watch all three panels in their entirety

From the November/December 2013 Report from the CapitalClick here for the next article.