Religious Freedom Restoration Act

12 Key excerpts on "Religious Freedom Restoration Act"

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  Religious Liberty in a Lockean Society

  • Elissa B. Alzate(Author)
  • 2017(Publication Date)
  • Palgrave Pivot

    (Publisher)

  64 E.B. ALZATE the issue, identifying any one conception that represents contemporary society’s view on the subject presents difficulty. Arguably, the best and most unified political pronouncement on religious liberty in recent years comes from the Religious Freedom Restoration Act of 1993 (hereafter RFRA) and subsequent state acts sharing the same name (hereafter state RFRAs). The stipulations set forth in this legislation heavily emphasize individuals’ rights at the cost of governmental authority. Essentially, RFRA restricts political authority by requiring government to allow indi- vidual exemptions to otherwise neutral laws or policies that happen to place a “substantial burden” on those individuals’ religious beliefs or worship. This requirement applies to all government action unless gov- ernment can prove that its action furthers “a compelling governmental interest” and uses “the least restrictive means” to achieve that interest. 1 At the time the federal statute was passed, as well as Connecticut and Rhode Island RFRAs, there was strong bipartisan support for their pas- sage, removing potential objections that the ideas represented therein reflected only the views of one political party or group in society. The notion of religious liberty embodied in RFRA laws was the result of a culmination of various tensions played out over time concerning government and the individual regarding the place of religion. Society’s view of the individual freedom of religion, as well as its view of the meaning of the relevant First Amendment protections, has evolved over time, as evidenced by the changing views of the Supreme Court. The justices of the highest court in the United States are no different from the American founders in terms of their diversity of opinion.

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  When Religious and Secular Interests Collide

  Faith, Law, and the Religious Exemption Debate

  • Scott A. Merriman(Author)
  • 2017(Publication Date)
  • Praeger

    (Publisher)

  Chapter Six

  From RFRA to Hobby Lobby

  The Religious Freedom Restoration Act (RFRA) of 1993 was passed in order to counter the Oregon v. Smith decision, and it requires governmental laws which substantially burden religion to be justified by a compelling government interest. Even then, the least restrictive means must be used by the government. However, this act only balances off the interest of the individual whose religious freedom is allegedly limited versus that of society. It seems to ignore any other interested parties, such as if there are other people affected, including those who are on the other side of the scales of justice. For instance, if a person claims to be allowed to discriminate against participants in a same-sex marriage because his religion requires it, RFRA only looks at the interest of the state and the interest of the person claiming a right to discriminate—it ignores those wanting to participate in the same-sex marriage ceremony. Such a lack of consideration is nothing new, as previous cases have also ignored important third parties. In the area of the establishment (not free exercise), the prayer in the public school cases (such as Engle v. Vitale) ignored everyone besides the children being told to pray. Historian J.R. Pole writes, “Oddly enough, although these opinions dealt with the susceptibilities of children, they failed to notice the difficulty for the nonconformist or irreligious teacher who might be assigned the duty of leading the class in prayer.”1 Thus, many decisions in the past really dealt with different issues than the ones considered today. This should not surprise us as the Supreme Court generally tries to limit its holdings to the area of law forced by the case at hand (and to the type of parties covered by the case at hand). However, not even all the parties covered by the case are represented.

  As America as a country claims to be equal for all members of society, discrimination allowed by law destroys that equality. Pole describes John Rawls, a twentieth-century American philosopher, in this way: he “described self-respect as ‘perhaps the most important primary good.’ He [Rawls] defined self-respect as an ability, within one’s powers to fulfill one’s intentions.”2 Not being able to marry equally would seem to be the antithesis of that self-respect and so also the antithesis of the “most important primary good.”3

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  The Contested Place of Religion in Family Law

  • Robin Fretwell Wilson(Author)
  • 2018(Publication Date)
  • Cambridge University Press

    (Publisher)

  J. (Apr. 2, 2015), www.wsj.com/articles/indiana-lawmakers-unveil-changes-to-religious-freedom-law- 1427981035; Monica Davey, Campbell Robertson, & Richard Perez-Pena, Indiana and Arkansas Revise Rights Bills, Seeking to Remove Divisive Parts, N.Y. Times (Apr. 2, 2015), www.nytimes.com/2015/04/03/us/indiana-arkansas-religious-freedom-bill.html. 29 For a collection of attempts to enact state Religious Freedom Restoration Acts in 2015 and 2016, see National Conference of State Legislatures, 2015 State Religious Freedom Restoration Legislation (Sept. 3, 2015), www.ncsl.org/research/civil-and-criminal-justice/2015-state-rfra- legislation.aspx; National Conference of State Legislatures, 2016 State Religious Freedom Religion and the Family in the Wake of Hobby Lobby 45 similarly faced significant criticism. And in light of that criticism, some of these bills have been amended 30 and some vetoed. 31 That RFRA is now the object of such scorn – after being originally embraced across the political spectrum – typifies the extraordinary shift in the broader religious liberty narrative. 32 As RFRA has been invoked in the current culture wars over same-sex marriage, the public perception of RFRA has now been radically reformulated. This new narrative no longer sees RFRA as primarily in the service of vulnerable religious minorities, but primarily as a tool deployed by far more secure religious majorities. 33 To be sure, this oft-invoked characterization grossly oversimplifies the demographic dynamics at work. Indeed, to lump together all “Christians” and then describe them as a majority misses the way in which “Christian” as a category encapsulates a wide range of denominations that differ in innumerable ways on matters of religious doctrine.

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  Armageddon in Waco

  Critical Perspectives on the Branch Davidian Conflict

  • Stuart A. Wright(Author)
  • 2014(Publication Date)
  • University of Chicago Press

    (Publisher)

  With almost unprecedented unity, a coalition of religious groups pressured Congress to pass legislation to restore the “compelling interest” test. As a result, in November 1993, the Religious Freedom Restoration Act (RFRA) became law, explicitly reinstating pre- Smith standards. Passed overwhelmingly by both chambers of Congress (its Senate sponsors were Catholic Democrat Edward Kennedy and Mormon Republican Orrin Hatch), RFRA is a clear expression of legislative intent to protect free exercise as it had been understood (Wood 1993b). Given Smith’s rationale of deference to the political process, RFRA may well succeed in undoing Smith’s changes. However, it is too early to document any effects of RFRA; also, any potential constitutional challenges to the act itself have not yet surfaced. The social history of religious movements in the United States demonstrates that the boundaries of the culturally legitimate may change, but at any one time they push minority groups firmly to the margins. The dynamics of marginalization have been reflected in the changing fortunes of free religious expression in Constitutional law. These two themes come together in the government’s actions against the Mt. Carmel Branch Davidians. It demonstrates that the difficult balance of social order and religious liberty can be fatal, even in the relatively tolerant climate of contemporary America. Social Order and Religious Liberty: The Waco Case In the wake of the disastrous ending to the confrontation with David Koresh and the Branch Davidians, the government has produced a variety of rationales for its actions. The two primary justifications for governmental action have been Koresh’s weapons supply and allegations of child abuse

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  When Religious and Secular Interests Collide

  Faith, Law, and the Religious Exemption Debate

  • Scott A. Merriman(Author)
  • 2017(Publication Date)
  • Praeger

    (Publisher)

  CHAPTER SIX From RFRA to Hobby Lobby The Religious Freedom Restoration Act (RFRA) of 1993 was passed in order to counter the Oregon v. Smith decision, and it requires governmen- tal laws which substantially burden religion to be justified by a compel- ling government interest. Even then, the least restrictive means must be used by the government. However, this act only balances off the interest of the individual whose religious freedom is allegedly limited versus that of society. It seems to ignore any other interested parties, such as if there are other people affected, including those who are on the other side of the scales of justice. For instance, if a person claims to be allowed to discrimi- nate against participants in a same-sex marriage because his religion requires it, RFRA only looks at the interest of the state and the interest of the person claiming a right to discriminate—it ignores those wanting to participate in the same-sex marriage ceremony. Such a lack of consider- ation is nothing new, as previous cases have also ignored important third parties. In the area of the establishment (not free exercise), the prayer in the public school cases (such as Engle v. Vitale ) ignored everyone besides the children being told to pray. Historian J. R. Pole writes, “Oddly enough, although these opinions dealt with the susceptibilities of children, they failed to notice the difficulty for the nonconformist or irreligious teacher who might be assigned the duty of leading the class in prayer.” 1 Thus, many decisions in the past really dealt with different issues than the ones considered today. This should not surprise us as the Supreme Court gen- erally tries to limit its holdings to the area of law forced by the case at hand (and to the type of parties covered by the case at hand). However, not even all the parties covered by the case are represented.

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  Can God and Caesar Coexist?

  Balancing Religious Freedom and International Law

  • Robert F. Drinan(Author)
  • 2008(Publication Date)
  • Yale University Press

    (Publisher)

  Moreover, many laws that support religion deal with extremely private, consensual conduct, and some people argue that a government should not insist on maintaining laws that have proved to be unenforceable. All of these factors are weighed by the people who apply the IRFA to the world scene. Understandably, these analysts shy away from the difficult questions, preferring to report on the topic of global religious freedom from a relativistic per-spective that reflects the views of very different societies on the place of religion. The work of the Commission on International Freedom of Religion has been facilitated and made more visible by the  Religious Freedom in the United States near-doubling of the number of democracies in the world during the  s. The rebirth of democracy in Eastern Europe has prompted an amazing revival of religious organizations in that region. The commission’s reports have related some of the victories for religious freedom in such nations as Poland and Lithuania. The  annual report produced under the IRFA sets forth the belief that “each religious tradition has a moral code, a way of understanding who we are and how we ought to order our lives together. The articulation of these understandings in the public square is not something to be feared by democ-racies. Rather it makes a vital contribution to the development of public policy.” The rhetoric about preaching in the public square, although familiar in the United States, is not exactly prominent in the language of international law or human rights. But it seems to be a truism that democratic institutions are strengthened by the free expression of religious ideas. Any attempt to apply that assumption to nondemocratic states such as China raises complex problems. The free exercise of religion is guaranteed in the ICCPR, to which  countries are signatories.

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  Congress, the Supreme Court, and Religious Liberty

  The Case of City of Boerne v. Flores

  • J. Waltman(Author)
  • 2013(Publication Date)
  • Palgrave Macmillan

    (Publisher)

  Boerne decision struck down RFRA as being outside the scope of Congress’ enforcement authority under section 5 of the 14th amendment. The 14th Amendment allows Congress to protect individual rights against state infringements. It would appear, therefore, that RFRA is still valid as to the Federal Government . . .

  Second, and most importantly, the Court’s holding regarding the role of Congress in interpreting the Constitution and protecting individual liberties raised troubling questions concerning the relationship between the judiciary and the elected representatives of the people in the Legislative branch.12

  Rep. Jerold Nadler, a Democrat from New York, followed with a tirade against the decision, then concluded on a hopeful note: “Just as a broad and diverse coalition of religious and civil liberties groups, with bipartisan cooperation in the Congress, succeeded in passing the Religious Freedom Restoration Act, I am confident that we will succeed in restoring once more the freedom of religion this Court has so cavalierly stripped from our citizens.”13

  Indeed, the coalition of which Nadler spoke was already working to come up with a way to respond to Boerne . In an effort to give life to these efforts, committees in both the House and Senate followed up on the initial hearings with several others.14 At the outset, there was near unanimity in the need to search for a rebuttal to the court. However, Nadler’s optimism proved premature, as the coalition that had worked together over RFRA frayed before what became known as the Religious Liberty Protection Act (RLPA) could be passed. The source of the fissure was a concern voiced ever more loudly by groups backing gays and lesbians that the act might be used to challenge state and local civil rights laws banning discrimination in employment and housing on the basis of sexual orientation. Their concern was heightened by the statements of some conservative Christian groups that when it passed they intended to use RLPA for that very purpose. In time, the major civil rights organizations and most major liberal religious groups withdrew their support from the new bill. Although it passed the House, but not before a protracted fight over this issue, it was stillborn in the Senate. In the end, only a scaled-back version of RLPA, the Religious Land Use and Institutionalized Persons Act of 2000, could be placed on the statute books.15

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  Societal Agents in Law

  Quantitative Research

  • Larry D. Barnett(Author)
  • 2019(Publication Date)
  • Palgrave Macmillan

    (Publisher)

  20

  Table 6.1 names the states that have a provision in their law that is equivalent to the federal RFRA (first column) and cites the source of each provision (second column). The states were identified by a search of the statutes and constitutions of every state during April 201521 and by several supplemental searches for state session laws that had been adopted in 2015.22 Table 6.1 excludes any state that incorporated such a provision into its law during or after 2016, but as explained infra , the exclusion did not affect the coding of any state on the dependent variable of the study that is reported in Sect. 6.2 of the present chapter. I regarded a state measure as equivalent to the Act that Congress adopted when the standards of the state provision for government action that materially affected the exercise of religion were worded identically or comparably to the wording of the two standards (listed in the previous paragraph) in the federal Act.23 The last (right-hand) column of Table 6.1 reports the year in which the state provision was approved.24 Readers should note that the federal RFRA, which was adopted on November 16, 1993,25 was preceded by RFRA-comparable legislation in two states: Connecticut, whose provision was adopted a maximum of ten months before the federal Act26 ; and Rhode Island, whose provision was adopted approximately four months before the federal Act.27 At the time that these two states approved their legislation, the bills that led to the federal RFRA were under deliberation by the U.S. House of Representatives and the U.S. Senate,28 thus offering the states a prototype that they could (and presumably did) consider and employ in writing their law.

  Table 6.1 States with law equivalent to the federal Religious Freedom Restoration Act

  State	Source of RFRA-equivalent provision	Year adopted a
  Alabama	Ala.​ Const.​ amend.​ 622 (codified at Ala.​ Const.​ art.​ I, § 3.​01)	1998
  Arizona	1999 Ariz. Sess. 1769 (codified at Ariz.​ Rev.​ Stat.​ §§ 41-1493 to 41-1493.​02 )	1999
  Arkansas	2015 Arkansas Laws Act 975 (S.B. 975) (codified at Ark . Code Ann . §§ 16-123-401 to 16-123-407 (2015)	2015
  Connecticut	1993 Conn. Acts 801 (Reg. Sess.) (codified at Conn . Gen . Stat . § 52-571b)	1993
  Florida	1998 Fla. Laws 3296 (codified at Fla.​ Stat.​ §§ 761.​01 to 761.05)	1998
  Idaho	2000 Idaho Sess. Laws 352 (codified at Idaho Code §§ 73-401 to 73-404

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  Religious Freedom v. Equal Protection

  Clashing American Rights

  • Kevin A. Johnson, Jennifer J. Asenas, Mary E. Stuckey, Mitchell S. McKinney(Authors)
  • 2022(Publication Date)
  • Peter Lang Inc., International Academic Publishers

    (Publisher)

  This means either protecting all religious beliefs that are burdened 292 JASON ZENOR or moving back to a balancing test for religious accommodation, including for Christianity. Conclusion The Religious Right argues that they are the minority in a secular nation and that their individual rights must be protected. But over the last forty years, their political power has been quite evident in all branches of government at every level. For example, in 2017, President Trump signed an Executive Order on Religious Liberty promising to protect all religions, while at the same passing a travel ban that he called a “Muslim Ban” while he was a candidate. At the same time, the Religious Right has been privileged by a legal protection that was originally intended to protect a religious minority, such as Native Americans, whose rights were put in question by the decision in Smith. But, RFRA expanded the protection of religious exercise well beyond Sherber t. After RFRA, religious exercise could not to be substantially bur- dened unless the government had a compelling state interest and the law was narrowly tailored. This is very difficult for the government to establish. RFRA now essentially protects any religious practice against all government regulation- as any government burden is substantial. Moreover, in Burwell v. Hobby Lobby (2014), the U.S. Supreme Court extended this religious pro- tection to a corporation. It appears the Court will also no longer examine the centrality or the sincerity of the belief—a party must merely claim that there was a burden to religion in order to prevail. This was exactly what Justice Scalia warned against in Smith, individuals are now “a law unto themselves.” Yet, as the example of the Sioux challenge of the Dakota Access Pipeline or the Navajo Nation’s challenge to a ski resort on sacred lands show us, free exercise of religion for all has not been fully realized.

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  Religious Free Exercise and Contemporary American Politics

  The Saga of the Religious Land Use and Institutionalized Persons Act of 2000

  • Jerold L. Waltman(Author)
  • 2010(Publication Date)
  • Continuum

    (Publisher)

  Religious liberty is viewed, accordingly, as a matter of freedom of speech, or a right of association, or one of mere equal protection. But, he declared, that position flies in the face of both the American tradition and the text of the constitution. “Whatever ultimately one thinks about the bal-ance of liberty and equality, it is fair to say that the greatness of our tradition in religious liberty will be impoverished if we do not understand that at its core it is about the protection of religious differences, religious pluralism, and religious conscience, and that sometimes these values are so strong that they even override otherwise relevant equality claims.” 13 THE FINETUNED POLITICS 51 Crafting a Response Part of where one stood on what specifically should be done depended on one’s stance toward what Boerne meant. For those wanting to face down the Court, some kind of challenge, or at least a shot across the bow, was the pre-ferred approach. For those bent on achieving practical results in the short, or even the intermediate, term the question was how to find a path around Boerne . Two steps proposed by some of the more agitated partisans were discarded immediately: passing a resolution telling the Court how angry Congress was and repassing RFRA. A resolution would merely offend the Court and accomplish nothing, several people pointed out, whereas repass-ing RFRA was a politically hopeless enterprise. It was extremely unlikely that enough votes could be marshaled for such an effort, and the president would not sign it in any event. Furthermore, it would certainly be struck down in the courts, and leave nothing but bitterness on all sides. Loading the canon of a constitutional amendment was favored by some. 14 While this would undoubtedly have immunized a RFRA-type statute, there were two objections to pursuing this route. The first was the political diffi-culty associated with drafting and passing any amendment.

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  Cato Supreme Court Review, 2004-2005

  • Mark K. Moller(Author)
  • 2005(Publication Date)
  • Cato Institute

    (Publisher)

  28 Congress responded by enacting the Religious Freedom Restoration Act (RFRA), which provides that the federal government may ‘‘substan-tially burden a person’s exercise of religion’’ only if the state burden serves a ‘‘compelling governmental interest’’ and is the ‘‘least restric-tive means’’ of furthering that interest. 29 In Gonzales v. O Centro Espirita Beneficiente Uniao , 30 the Court con-fronts the question whether RFRA requires the federal government to permit the importation, possession, and use of hoasca, a tea con-taining the hallucinogen DMT, in religious ceremonies. This question divided the U.S. Court of Appeals for the Tenth Circuit, sitting en banc, which held that members of a religious group were entitled to a preliminary injunction barring federal enforcement of the Con-trolled Substances Act (CSA) as applied to hoasca in religious ceremonies. 31 The federal government maintains that it has compelling interests in the uniform enforcement of federal drug laws and in compliance with a United Nations drug control treaty that outweigh the religious freedom claim at issue. All DMT-containing substances are listed as ‘‘schedule I’’–controlled hallucinogens under the CSA, and Congress asserted that schedule I substances have ‘‘a high potential for abuse’’ and lack any ‘‘currently accepted medical use.’’ 32 While Congress, 26 494 U.S. 872 (1990). 27 Id. at 890. 28 Id. at 879–82 (rejecting religious exemption from valid and neutral laws of general applicability); id. at 886–89 (rejecting strict scrutiny). 29 42 U.S.C. § 2000bb-1. As enacted by Congress, RFRA applied to all levels of government. RFRA’s application to states was, however, struck down in City of Boerne v. Flores , 521 U.S. 507, 536 (1997), for exceeding the scope of Section 5 of the Fourteenth Amendment. 30 No. 04-1084. 31 O Centro Espirita Beneficiente Uniao v. Ashcroft, 389 F.3d 973, 976 (10th Cir. 2004). 32 21 U.S.C. § 812 (b)(1)(A)–(C). 326

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  International Religious Freedom Advocacy

  A Guide to Organizations, Law, and NGOs

  • H. Knox Thames, Chris Seiple, Amy Rowe(Authors)
  • 2011(Publication Date)
  • Baylor University Press

    (Publisher)

  1 1 Overview of International Religious Freedom Advocacy Around the world, persons of faith continue to face serious obstacles to the full and free enjoyment of religious freedom, whether from Christian, Muslim, or other religious communities. Religious freedom is perhaps the most personal of human rights, as it goes to the very core of a human being. Yet limitations, abuse, and persecution are a daily occurrence, with some estimating that more than half of the world’s population cannot fully enjoy this cherished fundamental freedom. At the same time, religious freedom protections are well established at the international level. International law recognizes religious freedom as a universal human right. Treaties and international agreements guarantee and reinforce the right of individual and communal religious freedom. Placing limitations on individual belief is never permitted, and communities of believ-ers must be allowed to congregate for worship and study. Because of these wide protections, religious freedom is considered a part of “customary inter-national law,” and thereby every country in the world must protect this human right, even if they have not signed any treaties or joined international organi-zations. Of course, despite states pledging to uphold and defend these norms, implementation is inconsistent, even among European countries. Consider-ing the ongoing abuses and robust international protections, many advocates want to take action on behalf of those suffering elsewhere, but they may not know how. This guidebook is written for them. Bob Seiple, the first U.S. Ambassador-at-Large for International Reli-gious Freedom and founder of the Institute of Global Engagement, has spo-ken about how persons of good will observe repression from their homes but are prevented from taking action by the unfamiliar maze of governmental and international offices and mechanisms, as they do not know where to go and who to approach.

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