Written by Don Byrd

The federal Religious Freedom Restoration Act (RFRA) has for more than 20 years protected the religious free exercise rights of individuals against the unintended consequences of government action. The government may not “substantially burden” a person’s free exercise of religion, the law says, unless it is necessary to further a compelling state interest.

The federal version of RFRA seeks a balance between religious liberty rights and the need for government regulation by providing a legal framework that requires a case-by-case analysis when such conflicts arise. Sometimes, the religious objector wins (when the burden on religious exercise is substantial and the government fails to demonstrate its compelling interest); sometimes the government wins (when the burden is deemed insubstantial, or when it is demonstrated as necessary to achieve a compelling interest).

Of course, RFRA is not without controversy. Some detractors argue that the law effectively is a trump card that allows individuals (and sometimes corporations) to avoid laws the rest of us must follow. But a pair of decisions in criminal cases last week demonstrate just how ill-fitting that description is.

In People of the Virgin Islands v. Felix, a defendant charged with violating drug statutes, including possession with the intent to sell, sought to have the case dismissed pursuant to a RFRA defense. Because marijuana use is a basic tenet of his faith, he argued, the government cannot prosecute him. The court rejected this argument, explaining:

The Virgin Islands Legislature has determined that distribution of controlled substances is a substantial threat to the public welfare. . . . Defendant cannot use free exercise as a shield to prosecution because, were he to be convicted by the jury, it would be for conduct that constitutes a substantial risk to the public.

Evidence at the hearing indicated that the defendant is a Rastafarian, and that marijuana has a central place in the Rastafarian religion. But the defendant has not been charged with simple possession. Rather he is charged with possession with intent to distribute. The Defendant might have been successful in defending against a charge of simple possession of marijuana… but there exists no evidence that distribution of marijuana is a requirement of Rastafarianism. 

Meanwhile in United States v. Warren, a defendant in Arizona was charged with violating federal law by assisting undocumented aliens in evading immigration authorities. Mr. Warren claimed that providing shelter and other assistance to those without homes is a requirement of his faith and asked the district court to dismiss the case under RFRA. While the court concluded he may still be able to offer a RFRA defense as part of his trial, he is not entitled to have the case dismissed because many of the relevant facts are in dispute:

[T]he argument that Warren’s conduct does not, legally, constitute a crime in light of the strictures announced in the RFRA – the argument underpinning his entire motion to dismiss – is unavailing in the context in which Warren raises it as it recites and relies upon facts about Warren’s alleged criminal conduct which the Government disputes. For instance, the argument advances and assumes, inter alia, that Warren “provided emergency aid” and that the recipients were “in need” on the dates listed in the indictment.

RFRA remains an important protection for free exercise. But that doesn’t mean that those claiming their religion is burdened are automatically allowed an accommodation to circumvent the law. In fact, many if not most RFRA claims would seem to be resolved in favor of the government. RFRA is no get out of jail free card.

For more on the Religious Freedom Restoration Act, see the Baptist Joint Committee’s RFRA Resource page.