November 16, 2012
For example, the Affordable Care Act (ACA) requires a business that employs 50 or more individuals to include contraception in its health coverage of employees.
However, just two decades ago, it was the other way around: people were turning to the Executive and Legislative branches for relief from an “attack on religious liberty” from the Judiciary.
That relief came in the form of the Religious Freedom Restoration Act, which was signed into law 19 years ago today, on November 16, 1993.
The Act, commonly known as “RFRA” (pronounced “rif-ra”), was a congressional attempt at overturning a Supreme Court decision from 1990, Employment Division v. Smith.
For those who still remember their constitutional law classes, this is the “peyote case,” wherein two Native Americans were fired for using peyote in a religious ceremony (the use of peyote was illegal under Oregon state law at the time, with no religious exception allowed by law).
The suit wasn’t against the employers, but rather the state for denying unemployment benefits to the two.
Although the Oregon Supreme Court found that the denial of benefits was a violation of the Constitution’s Free Exercise Clause, the Supreme Court decided otherwise, and in doing so, rolled back Free Exercise protections that were previously much stronger.
These previous protections were enshrined by the 1963 Supreme Court case Sherbert v. Verner, which applied strict scrutiny, the harshest lens of judicial analysis, to laws that “substantially burdened” a “sincerely-held religious belief.”
In Smith, however, the Court decided that “generally applicable” laws were exempt from the so-called Sherbert test.
According to the majority, only laws that specifically targeted religious behavior were subject to strict scrutiny – which, as Justice O’Connor noted in her concurrence, “relegates a serious First Amendment value the barest level of minimum scrutiny that the Equal Protection Clause already provides.”
In other words, the majority gutted Free Exercise protections.
This decision incensed the nation on both sides of the political spectrum and across all religious divides.
RFRA was the response of the American public (through Congress and President Bill Clinton) to the Smith decision, in that it reinstated the Sherbert test (and strict scrutiny along with it) for all government actions and laws, even generally applicable ones.
Of course, the Supreme Court wasn’t going to take this defeat lying down.
In 1997, the Court ruled in City of Boerne v. Flores, which struck down RFRA as it applied to the states.
Flores did this by holding that only the Supreme Court may define (i.e. expand or contract) the “substantive rights” guaranteed by the Fourteenth Amendment.
By imposing new requirements on the individual states on what laws they can and cannot pass, the Flores court ruled that Congress was also overstepping its bounds under the Eleventh Amendment, in that it was unconstitutionally waiving the states’ sovereign immunity (their ability to get sued) without their consent.
Thus, the only part of RFRA that remains is that as it applies to the federal government (since a government can waive its own sovereign immunity).
Interestingly, though, RFRA is the legal authority primarily used by the earlier mentioned opponents of the Obama administration’s “contraception mandate” – and generally with success.
Considering how difficult it is for government laws to pass a strict scrutiny test intact, it’s not surprising that RFRA would be so heavily relied upon, and that those who invoke it would, by and large, be successful in their legal endeavors.
We can only imagine how much more liberty that would be enjoyed had the entirety of RFRA remained in effect and individual states were bound by the same standards as the federal government.