73 Tex. L. Rev. 209 (1994-1995)
Interpreting the Religious Freedom Restoration Act

handle is hein.journals/tlr73 and id is 227 raw text is: Texas Law Review
Volume 73, Number 2, December 1994
Interpreting the Religious Freedom Restoration Act
Douglas Laycocek & Oliver S. Thomas*
In Employment Division v. Smith, the Supreme Court held that neutral and
generally applicable laws can be applied to suppress religious practices, and that states
need have no reason for refusing exemptions for the free exercise of religion. The
Religious Freedom Restoration Act responds to Smith, creating a statutory right tofree
exercise exemptions, subject to the compelling interest test.
Professor Laycock and Mr. Thomas draw on intimate knowledge of the Act's
legislative history to argue for interpretations that will implement the congressional
purpose. They argue that the generality of the Act resulted from a principled deter-
mination to treat all religions equally. They elaborate the meaning of the three critical
* Alice McKean Young Regents Chair in Law and Associate Dean for Research, The University
of Texas Law School. B.A. 1970, Michigan State University; J.D. 1973, The University of Chicago.
Professor Laycock testified in support of the Religious Freedom Restoration Act in both houses of
Congress. He is grateful to Laura Pugh for research assistance and to participants in the New York
University faculty colloquium series for helpful comments on an earlier draft.
** Special Counsel for Religious and Civil Liberties, National Council of Churches of Christ in
the U.S.A., and Consultant, Freedom Forum First Amendment Center, Vanderbilt University. B.A.
1977, University of Tennessee; M.Div. 1980, New Orleans Baptist Theological Seminary; J.D. 1983,
University of Tennessee; LL.M. 1990, University of Virginia. Mr. Thomas formerly taught church-
state law at the Georgetown University Law Center, and he chaired the Coalition for the Free Exercise
of Religion, the principal source of organized support for the Religious Freedom Restoration Act.
Many things happen orally in the course of drafting, negotiating, lobbying for and against, and
deliberating on major legislation. Mr. Thomas was intimately involved in the discussions about the
Religious Freedom Restoration Act; Professor Laycock was peripherally involved. We have cited the
written record when possible, and with respect to congressional intent, only the written record is
authoritative. But with respect to the fears, desires, hopes, and negotiating positions of groups
supporting and opposing the bill, the written record is fragmentary, much of what is written is not
accessible, and the written materials cited are secondary evidence at best. Whatever we may have cited
with respect to these background matters, we have relied principally on the personal knowledge of Mr.

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