S5, Ep. 06: RFRA at 30
Amanda and Holly look at the standard set by RFRA and discuss how the law has been used in both controversial and non-controversial cases.
Thirty years ago today, President Bill Clinton signed the Religious Freedom Restoration Act (RFRA) into law. It was a monumental event in religious liberty law at the time, and it remains part of an even more complex legal landscape of religious exemptions today. Amanda Tyler and Holly Hollman look at the standard set by RFRA and discuss how the law has been used in cases dealing with issues ranging from sacramental drug use to application of health insurance regulations. They discuss the non-controversial applications of RFRA, too, and the search for win-win solutions to complicated situations that arise in a religiously pluralistic society.
Segment 1 (starting at 00:38): The need for and passage of RFRA
Learn more about the Religious Freedom Restoration Act (RFRA) on BJC’s website: BJConline.org/RFRA
Read the text of the federal Religious Freedom Restoration Act at this link.
Amanda mentioned these two “high water mark” cases in the period before 1990: Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972).
The 1990 Employment Division v. Smith is the case often known as the “peyote case.” We played audio from Justice Antonin Scalia reading the opinion of the Court from the bench, which you can listen to and read at this link.
Watch the signing ceremony for RFRA on November 16, 1993, at this link on the YouTube channel of the William J. Clinton Presidential Library.
Holly mentioned this printed resource available on our website, produced for the 20th anniversary of RFRA.
Segment 2 (starting at 14:16): Twists and turns of RFRA over 30 years
Amanda mentioned the 1997 case that struck down RFRA as applied to the states: City of Boerne v. Flores.
The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) has the same standard as RFRA, but it has not been the subject of so many controversies.
Holly and Amanda mentioned three other RFRA cases: Gonzales v. O Centro Espírita Beneficente União do Vegetal in 2006 (also known as the “UDV” case), Tanzin v. Tanvir in 2020, and Burwell v. Hobby Lobby Stores in 2014.
Holly wrote about the application of RFRA to corporations in light of the Hobby Lobby decision in 2014: Examining RFRA in light of Hobby Lobby
J. Brent Walker, executive director of BJC at the time, wrote about the Hobby Lobby decision in 2014: Exploring Hobby Lobby’s narrow victory
Segment 3 (starting at 32:28): The state of RFRA today
Here are additional resources from BJC providing more context on the application of the Religious Freedom Restoration Act:
- S1, Ep. 06: Stay-at-home orders, religious freedom and RFRA (2020)
- S1, Ep. 12: Not a charm: Contraceptive mandate returns to the Supreme Court for the third time (2020)
- S3, Ep. 03: What’s going on with religious exemptions to COVID-19 vaccine mandates? (2021)
- Watch this video of former BJC General Counsel Oliver “Buzz” Thomas discussing the origins of RFRA
Resources from BJC on cases:
- Do states need religious freedom legislation? By J. Brent Walker, 2015
- Contraceptive mandate oral arguments shed light on underreported issues by Holly Hollman, 2014
- RFRA’s constitutionality called into question by J. Brent Walker, 2014
- RFRA at 20: A retrospective by Holly Hollman, 2013
- Remembering the origins of RFRA by J. Brent Walker, 2013
Respecting Religion is made possible by BJC’s generous donors. You can support these conversations with a gift to BJC.
Transcript: Season 5, Episode 6: RFRA at 30 (some parts of this transcript have been edited for clarity)
Segment 1: The need for and passage of RFRA (starting at 00:24)
AMANDA: Welcome to Respecting Religion, a BJC podcast series where we look at religion, the law, and what’s at stake for faith freedom today. I’m Amanda Tyler, executive director of BJC.
HOLLY: And I’m general counsel Holly Hollman. Thirty years ago this week, former president Bill Clinton signed the Religious Freedom Restoration Act into law.
AMANDA: And today, we’re looking back on this monumental event for religious liberty law and some of the controversies that have emerged over the past three decades and where we go from here.
HOLLY: That’s right, Amanda. Our predecessors who led BJC at the time led the coalition to get the Religious Freedom Restoration Act — or RFRA, as it’s known — passed. So we can celebrate that accomplishment as well as acknowledge some of the controversies relating to applications and interpretations of RFRA since then.
AMANDA: Exactly. Talking about RFRA is an opportunity for us to revisit one of the most important areas of religion and the law, and that is the role of religious exemptions in protecting religious freedom.
Holly, I know that’s something that you highlight when talking about RFRA, and it’s a focus of an op-ed you published this week to mark the anniversary.
HOLLY: Religious exemptions are an important part of protecting religious freedom in a religiously diverse, pluralistic society. Yet it’s something that people often don’t think about, and it’s also not something as simple as just claiming a religious motivation for doing something or not doing something and then escaping compliance with laws or government regulations.
But exemptions are an important aspect of religious liberty law, and depending on how they’re crafted or interpreted in case law, there can be very significant implications for other policy areas beyond religion, including public health and nondiscrimination law.
AMANDA: So suffice it to say, we do have a lot to discuss on this special anniversary episode of Respecting Religion.
HOLLY: Well, Amanda, I guess we should begin by defining it. What is the Religious Freedom Restoration Act?
As I mentioned, it was signed by President Bill Clinton. It is landmark legislation, passed by Congress and signed into federal law. It’s statutory protection for religious freedom, and it provides protection for religious exercise, you know, that word that we notice in the First Amendment as we think about religious liberty.
And it protects religious exercise even when it is incidentally or unintentionally harmed by government regulations. It is not designed to assist a specific religious practice, but it was written and intended to set a standard, determining when exemptions to laws must be allowed to protect the free exercise of religion.
It doesn’t guarantee any specific result in any given case, but it implicitly acknowledges that sometimes religion is burdened by government regulations, and, you know, it’s not necessarily ‑‑ it’s not intended, it’s not targeted to harm religion, which, of course, would be unconstitutional under the Free Exercise Clause, but it happens as an oversight.
And so RFRA is intended to address that situation, and RFRA was specifically designed not to exclude any particular kinds of claims but to apply a broad standard to all claims for exemptions. The statute says, “Government shall not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability, except if government can demonstrate that the application of the burden to the person is (1) in furtherance of a compelling governmental interest and (2) is the least restrictive means for furthering that compelling government interest.”
And if you want to see that language yourself, you can take a closer look by seeing BJC’s RFRA page on our website.
AMANDA: Yeah. We’ll link to that page in our show notes, Holly, because this is a lot to absorb for our podcast listeners. I mean, I feel like we’re going back to law school a little bit, and I think that’s really important context to understand why this landmark legislation, the Religious Freedom Restoration Act, was needed.
So let’s take our listeners back to law school a little bit — or maybe for the first time for some of you.
So prior to 1990, there were cases where the Supreme Court had interpreted the Free Exercise Clause of the First Amendment to mean that only governmental interests of the highest order would justify restrictions on the free exercise of religion.
And there were a couple of cases that really marked high-water marks for this very robust protection of Free Exercise rights through interpretation of the First Amendment.
One of those cases from 1963 was called Sherbert v. Verner. That was a case over the right or ability to collect unemployment compensation where the person who was wanting to collect unemployment compensation was a Seventh-day Adventist who observed a Saturday Sabbath and who refused to work on her Sabbath, and it was whether or not she could then be eligible to receive unemployment compensation.
The other case from that earlier period was a case called Wisconsin v. Yoder. That case was from 1972, and it held that an Amish person was exempt from a compulsory education law –- again, a law that would apply to everyone, but someone had a particular religious belief and whether that person could be exempt from such a law.
And so in both of these cases, the Supreme Court talked about the burdens on religious exercise that would come about if the law were enforced just as it was on its face, without regard to religious exemption, and then it also talked about the compelling interests that the government might have in enforcing the law again over those religious exemptions or those religious claims. That’s where this very robust protection for Free Exercise came out of the Supreme Court’s interpretation of the First Amendment.
HOLLY: Yeah. Sometimes people talk about “compelling government interests” or “interests of the highest order.” It was that kind of language that really signaled that the Free Exercise Clause could provide relief to a general law.
There were other cases that had been decided where the Court did not apply that standard, but they had specific contexts, and so generally the Sherbert/Yoder standard is what a lot of advocates assumed was the law of free exercise.
And then something really big happened, and it’s a famous case that, yes, everyone who goes to law school and takes con law — even without taking a specific religious liberty class — probably hears about this case. In 1990, the Court decided the case of Employment Division v. Smith. It is famous in that it surprised people. It really motivated a lot of reaction, and the majority opinion was written by Justice Scalia. It’s a six to three decision.
So that case, known as the “peyote” case, involved two Native American men who worked as drug counselors and were fired from their jobs after failing a drug test, and they failed the drug test because their religion involved religious ceremonies that included the ingestion of the illegal hallucinogenic drug peyote.
So when they lost their job, they applied for but were denied unemployment compensation by the state of Oregon, because they were fired for cause, which is a disqualifying event. They appealed, asserting that they had ingested peyote as a sacrament during a worship service at their Native American church, and so that to deny them unemployment compensation would be a violation of the First Amendment’s Free Exercise Clause.
And as Justice Scalia described the claim in the decision in the Smith case, he said: “Respondents” ‑‑ talking about these former employees. He said, “The respondents urge us to hold quite simply that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that and decline to do so now.”
The Court went on to hold that, “The right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes or prescribes conduct that his religion prescribes or proscribes.”
We’re going to play audio from Justice Scalia, announcing the Court’s decision from the bench.
JUSTICE SCALIA: (audio clip) We reject Respondent’s argument that governmental actions burdening religion must be justified by a compelling governmental interest. The government’s ability to enforce its criminal laws, like its ability to carry out other aspects of public policy, cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development. To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs except where the state’s interest is compelling, permitting him by virtue of his beliefs to become a law unto himself, contradicts both constitutional tradition and common sense.
AMANDA: So I think Justice Scalia’s portrayal of the case here as being contrary to constitutional tradition and common sense took a lot of people — including people who worked here at BJC at the time — off guard. This was a surprise to many people, because this constitutional law — as far as Free Exercise protection — felt very well settled at the time. By that point, the Sherbert/Yoder cases had been around for more than two decades, and so this really unsettled what we thought had been settled law when it comes to the protection of Free Exercise rights.
People at BJC were not the only ones who had that reaction, but we were in touch with this larger community, and so we gathered litigators, religious groups, academics, civil rights groups together into a coalition, a Coalition for the Free Exercise of Religion, that talked about, what is the response; what could be a response to this Court’s decision.
And this coalition was incredibly broad and diverse. You know, when I talk about the Coalition, I often — just to give people an idea of the diversity — it was everyone from the ACLU to the Family Research Council. It’s really hard to think about those two groups in the same room now, let alone working to pass the same piece of legislation.
I also recall hearing, Holly, about some concerns that were raised that seemed pretty out there at the time, particularly from some of the Catholic groups who were involved. They were really concerned about what if Roe v. Wade gets overturned ‑‑ okay, again, this is 1990.
What if Roe v. Wade gets overturned? And then we have faith-based groups or individuals who are raising Free Exercise rights to the right to an abortion. And so they at first did not want to support the law because of what might happen if all of those dominoes fell. That’s particularly interesting to us now, because that’s exactly what’s happening in some places, Holly, that those dominoes have fallen.
HOLLY: That’s right. And my understanding is that at the time, it seemed like a particular concern of the U.S. Conference of Catholic Bishops that seemed really unlikely, that people were like, really, you’re going to hold up this important piece of legislation that everyone agrees upon, that has people from across the religious spectrum? There were Christians and Jews and Muslims and all kinds of different religious groups that were involved.
And so that concern that, you know, they could hold it up for a while, because it was the U.S. Conference of Catholic Bishops. That’s quite a bit of power, and it took a long time, I think, to work through that.
AMANDA: Yeah. But the Coalition did work through that. The Coalition worked as strong coalitions should in answering concerns as they came up and creating legislation, and then doing the advocacy work on Capitol Hill to find the support for the law. And they did find that support. It passed with overwhelming support by both houses of Congress.
And then President Bill Clinton signed the bill into law in a ceremony on November 16, 1993. And we will link in show notes to a YouTube video which shows the signing ceremony, which is a real blast from the past.
HOLLY: And we’ll also link to a printed resource that we prepared at the 20th anniversary of RFRA that has a timeline and some valuable information, pictures and comments around the time of the passage, and a letter from the Coalition for the Free Exercise of Religion as they advocated for this law.
Segment 2: Twists and turns of RFRA over 30 years (starting at 14:16)
AMANDA: And so now, Holly, 30 years later, we have the benefit of knowing the history that the Coalition for the Free Exercise of Religion never could have guessed or predicted, all of the uses and outcomes, the twists and turns that RFRA has been through.
As you noted at the beginning, Holly, RFRA is a standard. It’s not a “religious claimant, you win” card. And so we’ve seen RFRA applied in all different kinds of cases, with different kinds of claims and different religious groups or individuals claiming religious exemptions, and we’ve also seen the courts limit the applicability of RFRA in a number of ways.
And the first really large limitation came in a case in 1997, so just four years after RFRA was signed into law when the Court limited and struck down RFRA as applied to the states. The particular facts of that case are pretty complex, but that’s the bottom line — is that after that City of Boerne v. Flores case, RFRA only applied to the federal government.
Now, the standard itself– the standard we went over with the substantial burden and the government’s requirement to show a compelling government interest — that standard has proliferated in various ways and forms. We saw that with another federal law that was passed and signed into law in 2000, the Religious Land Use and Institutionalized Persons Act — or RLUIPA — which took the RFRA standard and applied it in a more targeted way, to cases involving land use and institutionalized persons.
And that law, I want to point out ‑‑ again, same standard as RFRA, but that law has not had the same kind of controversies that RFRA has had over the number years and has stood up to constitutional scrutiny now for 23 years.
We also saw the standard proliferate in a number of state RFRAs, so these were, as the name shows, state laws that used the federal RFRA standard for the most part and were passed at the time to provide that state level protection after the City of Boerne case. We saw a bunch of those state RFRAs passed in the wake of City of Boerne v. Flores, and I actually was a legal assistant at BJC at the time, and I used to talk to people at the state level about how to pass a state RFRA and why that was a great idea.
Then we saw another spate of state RFRAs in more recent history that used different standards than the original RFRA, so just a real high-level look at how ‑‑
HOLLY: It’s a continuing conversation.
AMANDA: Yes. Exactly.
HOLLY: That development, Amanda, City of Boerne v. Flores, and then that continuation was getting at this fact that RFRA was written really broadly. You know, when I read that statutory language, I just said “government.” And so it was intended to apply to any government act. And in that Boerne case, you know, the Court said that Congress did not have the constitutional power to go that far.
And so it didn’t take away all the excitement and interest in the coalition of having a high standard. It was just saying, okay, well, we can’t do it this way. How can we do it, because it’s important to us that religious claims are evaluated on their face and given a fair look and that any burdens have to be justified.
So the conversation just continued on what standard should be there. We knew what standard should be there: a higher one, the one in the Sherbert and Yoder cases. That’s what people in the Coalition wanted. But then they had this conversation about how do we get it, how do we apply it. And as you mentioned, RLUIPA — the passage of RLUIPA — was a big marker, because Congress did have the power to pass a law that would apply broadly to those areas where they could build a record of the need for protection and, you know, areas that often infringed on free exercise, particularly landmarking and prisons.
AMANDA: Yeah. And, you know, just going over this history, Holly, this feels almost like a relic of the past, at how these institutions actually worked very well together during this time, that the Supreme ‑‑ you know, the Supreme Court in 1990 said, That’s not what the First Amendment says. Congress says, Okay, fine; here’s a statute. Three years later — or four years later, the Supreme Court comes back and says, Nope, that statute’s too broad. Three years after that, Congress comes back and says, Okay, fine; how about this statute? Right?
We see the institutions of government really in conversation with each other, and what ends up is, in the end, continuing protection for religious freedom for all. I say that feels almost quaint or like a relic from the past, because our institutions don’t seem to be in that same kind of dialogue right now about any issue, not just religious freedom.
HOLLY: That’s right. The other thing that’s notable is how complex it is. You have this need for protection of Free Exercise, but what standard applies depends on where you are and what your claim is and, you know, is it a state law or a federal law, or what kind of regulation is burdening you. So it becomes quite a complex matter to figure out what law applies and how cases might be decided.
So then there’s a couple other notable cases, RFRA cases, that we want to mention as we are looking at the impact of the Religious Freedom Restoration Act. In 2006, the Court decided a case that’s known as the UDV case, in which it strictly enforced RFRA’s standard requiring government to prove that infringements on religious exercise are justified by compelling state interest.
This case came out of the experience of a small, American religious group with origins in the Amazon rainforest, and they actually brought this litigation. They sued the federal government under RFRA, seeking to use the hallucinogenic drug hoasca as a part of a sacramental tea in their faith ceremonies.
So hoasca was prohibited in the U.S. under the Controlled Substances Act, and so they were concerned that if they imported it and used it, that they could be prosecuted. So they brought this action, and the case made its way all the way to the Supreme Court.
The Court was not convinced by the federal government’s argument that there was a compelling government interest, the least restrictive means, that a uniform application of its drug laws was warranted. I think that was kind of surprising to some people because of the context.
But what this case did was really showed the teeth in RFRA, showed that the statutory language is strong, and the Court was willing to look at the intent of RFRA to be broadly protective of religious rights and look at the actual statutory language that said that you look at how the burden is applied to the person — meaning to the actual circumstances of the person making the claim. And the Court decided the case in an eight to zero decision, written by Chief Justice John Roberts.
Now, I will say that this was at a preliminary stage, and so they were just simply taking care of the government’s argument that they could say, Hey, we have a compelling interest in the uniform application of drug laws.
AMANDA: Right. So because it was at a preliminary stage, it wasn’t saying that the religious claimants automatically won. They were just saying that the case could go on. And I do think this was an important case, because we finally have the Court saying, Yes, in a federal law situation, the standard does apply.
And then we saw just recently, really, in a 2020 case the Court again affirmed RFRA and what kind of damages are available for religious claimants who have a RFRA claim. In that case ‑‑ the case is the Tanzin case. It was another 8-0 decision, this time written by Justice Thomas. Justice Barrett was not participating in the case, because she was new to the Court.
But there were three Muslim immigrants who were living legally in the United States, and they sued FBI agents in their personal and professional capacities for placing them on the “No Fly List” as retaliation for refusing to become informants for the FBI.
And in the Tanzin case, the Court held that RFRA permits monetary damages from individual government officials and not just the government entity they work for, so, again, not specifically on the standard but what on the standard could yield in the way of damages and another important affirmation of RFRA by the Supreme Court.
HOLLY: That’s right. That the Court is willing to read the statute and uphold it and to apply it, with the strength that it’s written in, that it means what it says, and there is a real burden on the government to show why it is necessary to proceed with some kind of governmental interest in a way that burdens someone’s religion, that substantially burdens it. And if the government can’t do that, well, the government’s going to lose.
So, Amanda, those are two significant eight to zero decisions. We skipped over another big decision of the Supreme Court that deals with RFRA, and in fact, I would say that it’s a case that really introduced a lot of people to the Religious Freedom Restoration Act, and that is Burwell v. Hobby Lobby Stores from 2014.
And that was a five to four decision that involved a large craft store suing to get out of what’s known as the contraceptive mandate part of the whole regulatory scheme for the Affordable Care Act. So Hobby Lobby objected to how that regulation applied to it. They had religious objections to the application of the law to them, based on the owners of Hobby Lobby’s religious objections to certain kinds of contraceptive methods.
And so the Court, you know, takes that objection and looks at that through how this government regulation applied to Hobby Lobby to decide if there’s a substantial burden and what the government’s interest is. And the background of that case ‑‑ and this is something that I’m sure a lot of people didn’t know about it, because it just sounds like, oh, it’s a case about employers not wanting to provide certain benefits for their employees.
But actually Hobby Lobby was about whether or not they could take advantage of a different part of this regulatory scheme to avoid having to pay for that particular health service. So the employees, under Hobby Lobby‘s theory, would still have access to the contraceptives, but they would get out of paying for it. And they said that that should be readily available, because the government had provided something like that for religious affiliates.
The Court assumed that the HHS regulation that required an employer’s health insurance to include contraceptives for its employees imposed a substantial burden on the religious exercise of Hobby Lobby. As we know, the stories continue and continue, and there was later litigation about that and whether or not the accommodation provided for religious affiliates, most often associated with the Little Sisters of the Poor, whether or not that in and of itself was a violation of the Religious Freedom Restoration Act.
So a lot of people will remember the Hobby Lobby case because it’s ‑‑ they were curious about an employer getting out of some kind of government regulation, a requirement, based on the employer’s religion and were concerned, of course, in how that would affect employees.
AMANDA: So that’s right. I mean, that’s another part of RFRA is that when you’re looking at an exemption, the government may very well have a compelling government interest. But then we think, is there some other way that the government can achieve its interest that doesn’t infringe on someone’s religious Free Exercise rights.
HOLLY: Yeah. You’re looking for a win-win.
AMANDA: Exactly. And so the Court in this case said that a win-win would be to apply RFRA to the Hobby Lobby claims and that the employees could still have access to the contraceptive coverage, but that the employer didn’t have to pay for it.
Now, I think ‑‑ I say, a win-win. Well, we know there was a ton of controversy and continues to be a ton of controversy around this case, and I think for good reason. I mean, I think for one thing, some of those quick soundbites that came out after that case were, Corporations have rights, too — like people were so surprised that a corporation could claim this access to Religious Freedom Restoration Act.
And, Holly, you at the time, along with the then-executive director, J. Brent Walker, talked about the fact that the fact that it would apply to corporations wasn’t surprising to us, because ‑‑ guess what ‑‑ most religious organizations, churches and denominations and other groups, they are themselves corporations. Now, they’re nonprofit corporations, but they are corporate entities.
So the fact that RFRA applies to corporations wasn’t surprising. What was surprising is that RFRA would apply to closely held corporations and that the owners’ of those corporations religious beliefs would be taken into account for RFRA. That was something, I think, that the original coalition had not contemplated or thought through when they were thinking about the application of the law.
The other piece that, again, we ‑‑ we being BJC, you, actually, Holly, individually ‑‑ reflected on at the time was Justice Alito’s analysis of the standard and the opinion itself, where we felt like he really conflated the sincerity of a religious belief with the religious claimant’s duty to show a substantial burden on the free exercise of religion ‑‑ right? ‑‑ and that by really glossing over that second piece, the duty to show a substantial burden, that Justice Alito had not given full consideration of the standard.
And had he done so, I think people still might have been upset about the decision, but at least we could have seen the reasoning that went into it. And I think that’s some of the concern also in the aftermath of Hobby Lobby. A lot of courts have followed suit and aren’t really looking into, well, What is the substantial burden on free exercise?
Religious belief alone is not enough to win under ‑‑ or even to get to the next stage of a RFRA claim. But because he dealt with that all and conflated those two things together, it’s difficult to apply that case after the fact. But we are going to link in show notes here to BJC commentary at the time of the decision so you can read more about that as well.
HOLLY: As you note, Amanda, it did spark a lot of discussion about RFRA and whether the Court applied it correctly or not. And part of that was ‑‑ part of the interest was just that context, that very important context of health care law.
In this country, for some reason, we provide health care through employers, and there is a great need to provide more access to health insurance. And you had this important federal statute that really expanded the reach of health insurance for millions of Americans. So the idea that a religious liberty law could somehow move away from that important government interest, you know, caused a lot of people great concern or fear that this federal statute could be used to somehow take away the employees’ rights that were part of that regulatory scheme.
But, of course, the decision, read closely, should say, No, it should work. It just is going to work in a different way and that the employees could continue to access the contraceptives, and it could be this win-win.
What was interesting, though, is that people were upset by this context. As you mentioned, the for-profit nature of the corporate entity, that people hadn’t really thought about that: What does that mean for this to apply to large, for-profit employers?
And this relationship between the employer and the employee, you know, that if this law means that an employer’s religion could affect the employee’s access, that is a concern that a lot of people would have, that would make them much more skeptical of religious exemptions than they might otherwise be.
Segment 3: The state of RFRA today (starting at 32:28)
AMANDA: So, Holly, now as we turn to look at RFRA today and the state of RFRA and how it’s received by different groups and society in general, you know, I think suffice it to say, RFRA does not enjoy the same kind of broad, diverse, bipartisan support that it did 30 years ago.
HOLLY: And yet ‑‑
AMANDA: And yet ‑‑ right ‑‑ we also see RFRA operating much like Congress thought and the coalition that passed it thought it would operate, that it’s being used for more conservative causes, causes like those who have a moral religious objection to abortion or who have differing views of human sexuality than the laws that are protecting LGBTQ rights in society.
We also see it being used for more progressive causes, those who have a religious view that supports the use of abortion, those who have objections to immigration laws as they’re being enforced today.
And then we see RFRA used in a number of uncontroversial causes, like grooming standards, Sabbath observance, houses of worship feeding of those who are unhoused, using eagle feathers at graduation, religious dietary requirements. I think there’s a lot of conversation out there about the more, I guess, hot-button issues where RFRA is used.
But we should remember that it’s also being used in ways that many of us never hear about but that are protecting sincerely held religious beliefs that are substantially burdened by laws of general application.
HOLLY: And I think that conversation, Amanda, is so important, and, you know it comes up when we hear about proposals to change RFRA. And there are from time to time proposals to amend the law, particularly to say that it would not apply to certain kinds of claims, because, you know, people don’t want it to apply to certain claims if they might have an impact on something that matters to them.
But as this conversation has shown, it’s really about having a common standard and making sure that people have an opportunity to bring a case when their conscience is burdened and when their religious exercise is substantially burdened, and that we want that. We don’t want government to act in ways that unnecessarily impose on religious exercise.
And at the same time, we should be concerned if the balance is out of whack and the law is used in a way that undermines and undercuts a very important, compelling government interest. So we are still in this, and this whole endeavor of protecting religious freedom for all, we believe, continues to rely on at least the possibility of providing religious exemptions, if that can be done without subverting a really important government interest.
AMANDA: Where we’ve seen controversy that I think makes sense and that we should be attuned to is places where the government interest that is being undermined is the government’s requirement to protect civil rights and liberties. And we think that often religious claims and civil liberties are unnecessarily pitted against each other, and we should be attuned when that’s happening and particularly if the RFRA standard is being used to drive that wedge.
And those are things that we all — not just the courts but, I think, all Americans should be alert to that potential. But that potential alone doesn’t undermine, in our view, the need to support religious exemptions and the idea that religious exemptions are really necessary in a number of cases in order to protect everyone’s religious freedom in a religiously pluralistic society.
So I think a big takeaway from our whole conversation today, Holly, is just how complex this issue is, this complexity around RFRA itself but also what RFRA signifies, and that is statutory protection for religious exemptions.
And we can only do so much, as we’ve said, in a single episode, but for decades really, BJC has been going in depth on these issues and trying to communicate them in a way that is accessible to a general audience. And that’s also, Holly, what you and I try to do on this podcast.
And so for listeners who want to go more in-depth, we are going to link in the show notes to prior episodes and to other resources that provide even more context in this area, and we encourage you to check those out.
HOLLY: That brings us to the close of this episode of Respecting Religion. Thanks for joining us. For more information on what we discussed, visit our website at RespectingReligion.org for show notes and a transcript of this program.
AMANDA: This episode of Respecting Religion is produced by Cherilyn Guy and edited by Jordan Edwards, with editorial assistance from Guthrie Graves-Fitzsimmons and Jennifer Hawks.
HOLLY: Learn more about our work at BJC, defending faith freedom for all, by visiting our website at BJConline.org.
AMANDA: We’d love to hear from you. You can send both of us an email by writing to [email protected]. We’re also on social media @BJContheHill, and you can follow me on X, which used to be called Twitter, @AmandaTylerBJC.
HOLLY: And if you enjoyed the show, please share it with others. Take a moment to leave us a review or a five-star rating to help others find it.
AMANDA: We also want to thank you for supporting this podcast. You can donate to these conversations by visiting the link in our show notes.
HOLLY: Join us on Thursdays for new conversations Respecting Religion.