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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 Articles 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. Thomas.

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