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1 1 (April 3, 2020)

handle is hein.crs/govcqyt0001 and id is 1 raw text is: FF. ' iE SE .r, i , April 3, 2020 The Religious Freedom Restoration Act: A Primer The Religious Freedom Restoration Act of 1993 (RFRA) establishes rights beyond those protections afforded by the Constitution's free exercise clause by creating a heightened standard of review for government actions that substantially burden a person's exercise of religion. This In Focus provides an overview of the statute, including its origins, how it operates, and how the Supreme Court has interpreted the law since its passage. The First Amendment provides that the government shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. According to the Supreme Court, the clause protects individuals' right to exercise their religion of choice and prohibits government regulations that target religious beliefs. The free exercise clause protects not only religious beliefs but acts involved with religious practice. Under the clause, the government may not compel religious belief, punish religious expression, or impose regulations that favor one religion over another. The Supreme Court's interpretation of whether the clause requires religious accommodation to neutral, generally applicable laws (as opposed to laws that specifically target a religious practice) has changed over time. In Sherbert v. Verner, 374 U.S. 398 (1963), the government denied a claimant unemployment compensation benefits for failure to accept available work because she had declined to work on Saturdays for religious reasons. The Court reasoned, based on the facts of the case, that if a generally applicable law imposes a religious burden on an individual, that person could seek an exemption from the law unless the government could show that the burden was justified by a compelling government interest a high standard to meet. The Court, however, departed from this framework in Employment Division v. Smith, 494 U.S. 872 (1990), when it held that the free exercise clause does not exempt individuals from compliance with generally applicable laws and does not require the government to show a compelling interest in applying such laws to a particular individual. In Smith, two members of the Native American Church were denied unemployment benefits after they were fired for ingesting peyote as part of a religious ceremony. The Court held that religious exemptions from generally applicable laws should come from the legislative process. Nonetheless, even after Smith, Supreme Court precedent still requires the application of the compelling interest test in free exercise cases involving government action that intentionally (rather than incidentally) burdens religious exercise and in cases involving religious exemptions in programs that allow for individualized assessments. In 1993, Congress enacted RFRA in direct response to Smith. In its statutory findings, Congress expressed its disagreement with the Smith decision by concluding that Sherbert's compelling interest test is more workable for striking sensible balances between religious liberty and competing prior governmental interests. In its original form, RFRA applied to all government action at the federal, state, and local levels. Congress justified applying the law to the states by relying on Section 5 of the Fourteenth Amendment, which grants Congress the power to enforce, by appropriate legislation, the provisions of' the Fourteenth Amendment, which, among other things, has been interpreted to require state compliance with the First Amendment. Congress has since amended RFRA so that it applies only to federal entities. RFRA imposes a heightened standard of review for government actions including rules of general applicability that substantially burden a person's religious exercise. The statute does not define the term substantial burden, but the phrase appears to have originated from free exercise case law, which holds that such burdens exist when an individual is required to choose between following his or her religious beliefs and receiving a governmental benefit or when an individual must act contrary to his or her religious beliefs to avoid facing legal penalties. Importantly, this case law suggests that when evaluating an individual's free exercise claim, courts should defer to parties' assertions about their sincerely held religious beliefs. Once a party has established a substantial burden, the action is valid only if the government shows that the burden is (1) in furtherance of a compelling governmental interest and (2) the least restrictive means of furthering that interest. This standard is high, but not impossible, for the government to meet. To enforce its provisions, RFRA creates a private cause of action for persons whose religious exercise has been substantially burdened, allowing them to assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. The scope of RFRA changed as a result of City ofBoerne v. Flores, 521 U.S. 507 (1997), where the Court held that RFRA's application to states and local governments was beyond Congress's power under Section 5 of the Fourteenth Amendment. The Section 5 power, according to the Court, is remedial, allowing Congress to act only in instances where there is evidence of a pattern of conduct that violates the Fourteenth Amendment. The Court determined that because Congress had not established a widespread pattern of religious discrimination, RFRA could not be justified as K~:> gognpo goo g , q 'M M X 11L1\L\N,\1kJ\W,

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