1993 BYU L. Rev. 221 (1993)
The Religious Freedom Restoration Act

handle is hein.journals/byulr1993 and id is 231 raw text is: The Religious Freedom Restoration Act

Douglas Laycock*
The proposed Religious Freedom Restoration Act' (RFRA)
is a legislative response to the Supreme Court's decision in
Employment Division v. Smith,2 which held that federal courts
cannot protect the exercise of religion from formally neutral
and generally applicable laws. In effect, the Court held that
every American has a right to believe in a religion, but no right
to practice it. Religion cannot be singled out for discriminatory
regulation, but it is fully subject to the entire body of secular
In a pervasively regulated society, Smith means that
religion will be pervasively regulated. In a society where
regulation is driven by interest group politics, Smith means
that churches will be embroiled in endless political battles with
secular interest groups. In a nation that sometimes claims to
have been founded for religious liberty, Smith means that
Americans will suffer for conscience.
RFRA would greatly ameliorate these consequences. The
bill would enact a statutory version of the Free Exercise
Clause. The bill can work only if it is as broad as the Free
Exercise Clause, establishing the fundamental principle of
religious liberty and leaving particular disputes to further
Introduced with bipartisan sponsorship in both Houses of
Congress, supported by President Clinton, and endorsed by its
most influential former opponent, the United States Catholic
Conference, RFRA may finally be on the way to passage after
*   Alice McKean Young Regents Chair in Law and Associate Dean for
Research, The University of Texas Law School. The author participated in the
drafting of the Religious Freedom Restoration Act and testified in support of the
Act before committees in both the Senate and the House of Representatives.
1.  S. 578 & H.R. 1308, 103d Cong., 1st Sess. (1993), available in LEXIS, Legis
Library, BLTEXT File.
2.  494 U.S. 872 (1990).


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