The Religious Freedom Restoration Act—A History
At long last the 1991 version of the Religious Freedom Restoration Act (RFRA) has been reintroduced to Congress. Representative Stephen Solarz [D-NY] is continuing as the prime sponsor (as he was with the 1990 version) of this important legislation which would restore the free exercise of religion to the category of rights receiving the benefit of the compelling state interest test.
The RFRA is necessitated because of a decision of the United States Supreme Court in Employment Division v. Smith on April 17, 1990. In that case the Court held that the free exercise of religion would no longer receive the benefit of the higher level test of constitutional protection the Court has employed for rights it has deemed to be “fundamental” constitutional rights.
Until this decision it was widely accepted by all courts that the free exercise of religion was entitled to the same high level of protection accorded other First Amendment freedoms such as freedom of speech, press, and assembly. But the conservative majority on the Court held that guaranteeing the free exercise of religion with this high level of constitutional protection was a “luxury” which our nation could not afford.
It is no small irony that the Court chose an economic measure to describe its denigration of religious freedom. The conservatives on the Court are largely committed to an economic brand of conservatism which differs in great measure from the kind of conservatism espoused by Christian conservatives. Ironically Christian conservatives were the people that supplied a great deal of the political momentum for President Reagan who placed these conservatives on the Court. George Will, the economically conservative columnist, declared his support for the Court's decision in Smith and urged the Court to go even further and reverse Wisconsin v. Yoder. In supporting this denigration of religious freedom Will declared his materialistic view of American history when he wrote:
A central purpose of America's political arrangements is the subordination of religion to the political order, meaning the primacy of democracy. The Founders, like Locke before them, wished to tame and domesticate the religious passions of the sort that convulsed Europe. They aimed to do so not by establishing religion but by establishing a commercial republic—capitalism. They aimed to submerge people's turbulent energies in self-interested pursuit of material comforts.
Will's phrase “the subordination of religion to the political order” is an inaccurate view of American history, but it is an apt description of the effect of the Smith decision.
Lower Courts Are Quick To Dismantle Religious Freedom
The lower courts have wasted no time in taking the judicial wrecking ball to demolish religious protections in case after case. Cornerstone Bible Church lost its federal lawsuit against the city of Hastings, Minnesota over the exclusion of all churches from commercial areas of the city. The religious freedom claims of the church were treated with a low level of judicial protection.
First Covenant Church in Seattle had its victory in the Washington State Supreme Court reversed by the United States Supreme Court in light of its decision in Smith. Seattle officials had intruded in the church's building based on the landmark preservation ordinances of the city. The church claimed and the state Supreme Court agreed that this intrusion into the church's affairs violated its right to freely exercise its religion. The federal Supreme Court struck down this important decision.
A number of other court decisions have resulted in losses which would clearly have been victories prior to Smith. Some federal judges feel bound to follow Smith but apologize for the decision against religious freedom which follows. One federal appeals court declared: “Smith does not alter the rights of prisoners; it simply brings the free exercise of rights of private citizens closer to those of prisoners.”
A Wide Coalition Supports the Legislation
Because of the clear danger Smith represents to religious freedom, a large and divergent coalition was formed to seek a legislative remedy to the denigration of our rights to free exercise of religion.
Originally the group was virtually all-encompassing of the political and religious right and left. The ACLU and Christian Legal Society both endorsed the bill as did the National Association of Evangelicals and the National Council of Churches. Concerned Women for America and its arch-rival in textbook litigation, People for the American Way, also joined in endorsing the bill. Groups that usually fight nose-to-nose in court suddenly saw things eye-to-eye.
The coalition appointed a drafting committee chaired by Michael P. Farris, president of Home School Legal Defense Association and former long-time general counsel for Concerned Women for America. The co-chair was Marc Stern, general counsel for the American Jewish Congress. The drafting committee reflected the ideological balance presented by its co-chairmen.
Several lawyers and law professors with special expertise in religious freedom made numerous consultations with the drafting committee to ensure that the language of the RFRA was consistent with its declared intent: to restore the free exercise of religion to the traditional level of protection afforded other fundamental rights under the compelling interest test.
This test requires the government to prove that any burden on the free exercise of religion is essential to further a compelling state interest and is the least restrictive means of accomplishing such an interest. The drafting committee operated with the agreement that there would be no attempt to write the language to produce a desired result in any particular case. Rather the desire was simply to restore the legal standard and allow the courts to continue to make the ultimate decisions. The spirit of cooperation flowing from the "“no special deals” agreement was deemed a matter of great political amazement that such widely divergent groups were able to work together on such a potentially volatile topic.
The Coalition Flounders on the Issue of Abortion
In early 1991, the National Right to Life Committee (NRLC) began to complain that the RFRA would help pro-abortionists looking for alternative protections for the right to abortion in the event Roe v. Wade was reversed. Beverly LaHaye, president of Concerned Women for America, Tom Glessner, executive director of Christian Action Council, Sam Ericsson, president of Christian Legal Society, Michael Farris, president of Home School Legal Defense Association, and Robert Dugan, director of the National Association of Evangelicals Office of Public Policy, wrote a letter urging their fellow pro-lifers to continue their support of the bill. The letter declared that the signers had studied the claimed legal impact of the RFRA on abortion and found it to be a non-existent risk.
NRLC continues to insist that it will oppose the RFRA unless a phrase making the bill “abortion neutral” is added. Congressional leadership has made it clear that if such a provision is added to the bill, it will be politically dead. Moreover, many pro-lifers oppose the concept of exempting the issue of abortion from the bill with “abortion neutral language.” One reason for this is that many pro-life health care workers refuse to participate in abortions for religious reasons. If they are fired for such refusal, the RFRA is needed to give their religious freedom claims a chance for success in the courts.
Mike Farris and NRLC's general counsel, James Bopp, had a long telephone conversation where Farris urged Bopp to withdraw NRLC's opposition to the RFRA since “on the balance” religious freedom had everything to lose and the risk to the pro-life cause was so minimal. Bopp remarked that he did not agree that the risk to the pro-life cause was minimal and in any event their organization was concerned with the single issue of abortion and did not have to give any weight to the issue of religious freedom.
NRLC ultimately picked up a powerful ally in the National Catholic Conference. The Catholic Conference of Bishops had been seeking special provisions in the legislation from the earliest stages. The drafting committee consistently refused to agree to the Catholic demands for special favors in the legislation. The drafting committee argued that as soon as special favors were made for one cause, there would be dozens of causes both liberal and conservative which would be seeking exceptions in the legislation.
The pro-life community had a meeting where there was an attempt to seek agreement on a strategy to advance the legislation. The meeting ended in failure when the Catholics and the NRLC refused to back down from their position.
In addition, a number of evangelical organizations started to crumble in their support for the RFRA because of their publicly-stated fear that the NRLC stance would “give them a black eye” with their constituency.
None of these organizations believe that the legal arguments advanced by NRLC had any legal merit. Indeed noted pro-life constitutional lawyer William Ball wrote a lengthy legal memorandum reasoning that the abortion concerns were misplaced. Ball's position was supported by eminent legal scholars specializing in free exercise matters who are also pro-life, including Michael McConnell of the University of Chicago, Douglas Laycock of the University of Texas, and Edward Gaffney, dean of the Valparaiso Law School. Legal scholar Tom Jipping of Coalitions for America (headed by Paul Weyrich) also wrote a strong memorandum concluding that the abortion claims were unwarranted fears.
However, Attorney Ball had a change of heart, not for legal reasons, but for political reasons after reading an endorsement of the RFRA by the Religious Coalition for Abortion Rights. RCAR has long argued that abortion is a right which can be supported by claims of religious freedom. No respected free exercise lawyer—be he pro-life or pro-choice—believes that RCAR's arguments will ever be taken seriously by any court. The overwhelming consensus of lawyers specializing in religious freedom from both the left and right is that if the Supreme Court reverses Roe v. Wade on constitutional grounds, it is not going to place itself back in the middle of the abortion controversy by finding a novel right to abortion in a statute designed to protect the traditional view of religious freedom.
The Catholic Conference and NRLC were successful in their effort to change the perception of the RFRA from a non-controversial bill to a bill which is controversial because of the issue of abortion. Accordingly, support has been lost both in Congress and among pro-life groups in the coalition.
However, a number of pro-life organizations remain politically supportive of the bill. The National Association of Evangelicals, which is comprised of thousands of Bible-believing churches, including the Assemblies of God and Conservative Baptist Association, remains stalwart in its support of the Religious Freedom Restoration Act of 1991.
And other than NRLC and the Catholic Conference, almost all those who have withdrawn their support for the RFRA have made it clear that they have done so for political reasons, not because of any belief that the arguments advanced by NRLC have any legal merit.
After months of attempting to solve the “abortion” problem, the coalition eventually concluded that NRLC would not accept any other alternative to demonstrate the bill's neutrality on the subject of abortion. And more significantly, the Catholic Conference would not withdraw its demand for special favors in the legislation. Accordingly, the drive to launch the bid for religious freedom is now underway without NRLC's support.
It will be more difficult to pass this bill because of the trouble caused by the abortion controversy, but it is still politically possible to see this important restoration of religious freedom become the controlling law once again.