By K. Hollyn Hollman, BJC General Counsel
For more than a year, the BJC has been working with a small steering committee of religious liberty colleagues to plan a symposium commemorating the upcoming 20th anniversary of the passage of the federal Religious Freedom Restoration Act (RFRA). Our organizing partners, including the Christian Legal Society, the Religious Action Center for Reform Judaism, the American Jewish Committee, the Union of Orthodox Jewish Congregations, the Becket Fund for Religious Liberty and the Religious Freedom Center of the Newseum Institute, represent past and present religious liberty advocates and some key players in RFRA’s genesis.
RFRA was specifically designed to make it difficult for government to substantially burden the exercise of religion without a compelling reason for doing so. It attempted to provide a workable legislative test for balancing religious liberty needs against other important government interests and to afford religious claimants relief from generally applicable laws in some circumstances. When Congress passed RFRA, by overwhelming majorities in both chambers, it recognized that many times general laws may incidentally and unintentionally harm religion. RFRA was enacted to mitigate such harms and encourage religious accommodations when possible.
Since RFRA was signed into law by President Bill Clinton in 1993, the legal landscape of religious liberty has shifted dramatically. Subsequent cases and federal and state laws have affected RFRA’s usage, and RFRA is being applied in new contexts that were unforeseen two decades ago. There is no longer broad consensus about RFRA’s benefits or even its intended scope. Many groups who once supported RFRA (and the law’s state corollaries) have since changed course, fearing that these laws are increasingly 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.
The BJC’s November 7 symposium, which will be held at the Newseum in Washington, D.C., will use the occasion of the RFRA anniversary as an opportunity to reflect on the state of free exercise of religion in America more generally by examining it in a number of contexts. Our goal is to inspire critical thinking about the importance of protecting religious freedom, not just in the abstract but in the real world where conflicts often arise and where the law can make a difference in protecting rights of conscience.
First, we will revisit the context in which such a remarkable coalition of interests coalesced, secured bipartisan agreement in Congress and passed large-scale federal legislation to protect religious freedom. Religious freedom advocate and former BJC General Counsel Oliver “Buzz” Thomas, who chaired the RFRA coalition, will provide a keynote address followed by a panel of experts who were part of the coalition, represent a variety of religious constituencies and are involved in other policy debates that impact religious freedom.
Second, a segment of the symposium will be devoted to examining the cases working their way through the federal courts that use RFRA to challenge the contraception mandate under the Affordable Care Act. Former law professor Ira “Chip” Lupu, one of the nation’s leading religious liberty experts, will moderate a discussion between attorneys from the American Civil Liberties Union and the Becket Fund for Religious Liberty, both of whom are deeply involved in these disputes as well as other cases applying RFRA. For the last couple of years, such lawsuits have been the primary vehicle for reviving discussion about the meaning and impact of RFRA.
Third, Professor Doug Laycock of the University of Virginia School of Law, a key drafter of and advocate for RFRA, will provide a keynote address on the free exercise of religion in our diverse society with an eye toward the future. His presentation will be followed by a panel representing a variety of religious and cultural views on religion in America to assess our biggest challenges.
Our hope is that, throughout the day, we can learn from each other and continue the cooperation and respect for differences that are necessary to maximize religious freedom in ways that are mutually beneficial (if not ideal) for all stakeholders.
For more on RFRA:
Visit BJConline.org/RFRA or read “Remembering the origins of RFRA” by Executive Director J. Brent Walker, from the October 2013 Report from the Capital.
From the October 2013 Report from the Capital. Click here for the next article.
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