J. Michael Smith, President Michael P. Farris, Chairman
 
 
January 28, 2003

State Religious Freedom Acts

Frequently Asked Questions

Below are some commonly asked questions about the results of a state Religious Freedom Restoration Act.

What is a Religious Freedom Restoration Act?

A Religious Freedom Restoration Act (RFRA) reestablishes a test which courts must use to determine whether a person’s religious belief should be accommodated when a government action or regulation restricts his or her religious practice. Known as the “compelling interest test,” this test requires the government to prove with evidence that its regulation is (1) essential to achieve a compelling governmental interest and (2) the least restrictive means of achieving the government’s compelling interest.

For example, in People v. DeJonge, a case argued by the Home School Legal Defense Association (HSLDA), a Michigan couple held the religious belief that they as the parents, although not certified teachers, should be teaching their children in their home rather than sending them to school. But the state law requiring all teachers to be certified did not permit the couple to exercise this religious belief. Using the “compelling interest test,” the court required the state to show that (1) teacher certification is essential to fulfill the state’s compelling interest that children be educated and (2) that teacher certification was the least restrictive means to fulfill its interest.

The state was able show without much difficulty that it had a compelling interest in seeing that its citizens were educated. But because this couple’s children were scoring above the 90th percentile on standardized tests, the state could not prove teacher certification was essential for children to be educated and the least restrictive means to achieving that end. Thus, because the state could not satisfy the “compelling interest test,” the parents were allowed to continue teaching their children according to their religious beliefs.

Why are state RFRA’s needed?

Prior to 1990 the U.S. Supreme Court used the above test—the “compelling interest test”—when deciding religious claims. However, in a 1990 decision (Employment Div. of Oregon v. Smith) the Court tipped the scales of justice in favor of government regulation. The Court threw out the compelling interest test, which had shielded our religious freedom from onerous government regulation for more than 30 years.

The Smith decision reduced the standard of review in religious freedom cases to a “reasonableness standard.” In other words, if a state regulation is “reasonable” (which they nearly always are), a religious objector loses. While all other fundamental rights (freedom of speech, press, assembly, etc.) remain protected by the stringent “compelling interest test,” the Court singled out religious freedom, reducing its protection to the weak “reasonableness test.”

In 1993, Congress attempted to remedy the Smith decision by enacting the federal Religious Freedom Restoration Act. This Act simply restored the “compelling interest test” in religious freedom cases. Four years later, the federal RFRA was struck down by the U.S. Supreme Court in the 1997 City of Boerne case.

As a practical matter, here are a few real-life examples of government restricting the free exercise of religion that have taken place under the “reasonableness test.”

a) The long-standing practice of pastor-laity confidentiality has been repeatedly violated.
b) A Catholic hospital was denied accreditation for refusing to teach abortion techniques.
c) Among other zoning ordinance conflicts, a church ministry to the homeless was shut down because it was located on the second floor of a building with no elevator.
d) A church was prohibited by a local city ordinance from feeding more than 50 people per day.
e) Justice Fellowship reports that a Jewish minimum-security prisoner (CPA in jail for fraud, in 6th year of 8-year term) was denied the right to attend high holy day celebrations.

How can a state enact an RFRA law if the U.S. Supreme Court already ruled the Act unconstitutional?

The 1993 federal RFRA attempted to use Congress’ powers under Section 5 of the 14th Amendment to require both the federal and state governments to use the “compelling interest test” in religious freedom cases.

However, when the Supreme Court struck down the federal RFRA in 1997 (City of Boerne v. Flores), the problem wasn’t with the “compelling interest test.” The test had been used, as mentioned earlier, by the U.S. Supreme Court itself for more than 30 years. Rather, while the Supreme Court recognized the legitimacy of the “compelling interest test,” it ruled that Congress could not require states to use this test in religious freedom cases.

A widely recognized principle of law is that states are free to protect an individual’s right with a much higher standard than the U.S. Constitution itself affords. Under this principle and the Boerne decision, states are free to enact their own RFRAs, thereby choosing to apply the higher “compelling interest test” standard in their own religious freedom cases.

Will a state Religious Freedom Act create an increase in litigation?

No. This bill will simply restore the “compelling interest test,” which the U.S. Supreme Court established almost 40 years ago as the standard of review for fundamental rights cases.

This “compelling interest test” worked well for over 30 years with no explosion of religious freedom cases. The consistent application of the “compelling interest test” in the courts “evened the playing field,” giving people of sincere religious faith a fair chance against state regulations that violated their religious beliefs. Many times, both conservative and liberal religious and civil liberty organizations successfully used the “compelling interest test” to defend individuals’ rights to freely exercise their religious beliefs.

As mentioned above, the federal RFRA, which restored the “compelling interest test” in religious freedom cases, was effective from its enactment in 1993 until the U.S. Supreme Court struck it down in 1997. There is no record of an explosion in religious freedom litigation during this four-year period.

Furthermore, twelve states have formally passed RFRAs to specifically restore the application of the “compelling interest test” in religious freedom cases (AL, AZ, CT, FL, ID, IL, NM, OK, PA, RI, SC, TX). Seven more states, through state court precedents, have established a “compelling interest test” independent of the U.S. Supreme Court’s damaging precedence in Smith and Boerne. (KS, MA, MN, OH, VT, WA, WI, and MI.) None of these states are experiencing an explosion in free exercise litigation.

Based on the lack of examples of excessive litigation during the almost 30 years of experience of using the “compelling interest test” for religious liberty (both before the Smith decision and during the federal RFRA years), we believe that restoring this test will generate very little, if any, new litigation. In fact, clarifying the standard for religious liberty under state law may prove to reduce the amount of litigation, because a clearly defined legal standard often leads parties to settle disputes before litigation ensues.

Will the passage of a state RFRA result in a huge increase in litigation against local governments? Will this also increase the costs for the attorney general’s office in defending state officials?

No. The same arguments above apply. The “compelling interest test” is not new. It has been in effect for most of the last 40 years. Local governments and state officials have not been inundated with religious freedom suits.

None of the states that have passed state RFRA have experienced any explosion of religious liberty cases, including Rhode Island where the law is nine years old. The “compelling interest test” is time-tested.

Furthermore, the “compelling interest test” is simply a “balancing test.” It does not give religious claimants an automatic win. It only “evens the playing field” for the little guy.

Will the passage of a state RFRA create an explosion in frivolous cases filed by prisoners?

No. Studies show no sudden surge in religious freedom litigation filed by prisoners during the four years of the federal RFRA demonstrate there was no explosion of cases. Justice Fellowship compiled the following data (provided by the Statistical Division of Administrative Office of the U.S. Courts):

  • Prisoner RFRA cases for the years 1995-1996 accounted for about one-tenth of one percent (0.01%) of cases in U.S. courts.
  • The National Federal Court statistics show that in 1995, out of 43,158 total U.S. civil cases nationwide (1110 prisoner cases), only 50 of the cases invoking the federal RFRA were filed by prisoners.
  • In 1996, out of 48,755 U.S. civil cases, only 51 RFRA cases were filed by prisoners.

A state-by-state breakdown of information was only available for the following three states:

  • In New Mexico, out of 407 U.S. civil cases filed in 1995, 0 were filed by prisoners invoking the federal RFRA. In 1996, out of 492 U.S. civil cases filed, 0 were filed by prisoners invoking the federal RFRA.
  • According to the Virginia Attorney General’s office, out of 1,099 prisoner lawsuits filed against sheriff departments between 1993 and 1997 only 7 were “religious-styled” cases.
  • In Florida, only 5 prisoner religious freedom cases invoked the federal RFRA during 1993-1997.

These statistics show that the federal RFRA caused no explosion of cases filed by prisoners—a group considered most likely to take advantage of such a law.

What is the model for state RFRAs?

The state RFRA model supported by HSLDA is based on other time-tested state Religious Freedom Restoration Acts. It is a combination of the Rhode Island RFRA (the oldest—passed in 1993) and the Illinois RFRA. The substantive provisions of the bill, its heart, are found in all RFRA states. (e.g. Texas, South Carolina, Arizona, Connecticut, Florida, Alabama, Idaho, New Mexico, and Oklahoma). Of course, the “compelling interest test” is patterned directly after the U.S. Supreme Court’s description of the test found in dozens of cases over the last 40 years.

Why can’t we simply let the state courts reestablish the “compelling interest test”?

States which have neither an enacted RFRA nor their own body of case law applying the “compelling interest test” have simply followed whatever the current federal standard is. Courts in these states have always relied on the U.S. Supreme Court’s religious freedom standard of review and its interpretation and application of the “compelling interest test.” The states need to establish their own standard.

Since Smith and Boerne set the current federal precedent, this means trouble for Christians and other people of sincere religious faith.

Does a state RFRA replace all existing remedies to protect religious freedom?

No. A state RFRA only creates an additional “track” which a religious claimant can use to protect his free exercise of religion. State constitutional and federal constitutional remedies are still available.

Is there a problem with the lack of a definition for “religious belief”? For example, what if a group got together (such as a satanic group) and said it was a “religious group” and wanted to meet in a high school gym, but did inappropriate things? Under this law, would the school have to let everyone (including this group) meet in the gym, or allow no one access? Would schools that allow Fellowship of Christian Athletes or Young Life meet in the gym also be forced to let everyone else in (or no one)?

The first issue is the concern over the absence of a definition of religious belief.

There is a large body of case law relating to the definition of “religion.” (For a good summary of the case law see Carl H. Esbeck, A Restatement of the Supreme Court’s Law of Religious Freedom: Coherence, Conflict, or Chaos?, 70 Notre Dame L. Rev. 581, 609-612 (1995)). For example, in U.S. v. Seeger, 380 U.S. 163, 176 (1965), the U.S. Supreme Court defined religious belief as “sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by God.”

The drafters of the 1993 federal RFRA considered defining “religion” but decided against it primarily because the U.S. Supreme Court had already done so. Since the U.S. Supreme Court has defined religious belief in dozens of cases with sufficient clarity, it is not necessary to define it in a state RFRA.

Secondly, a response to the school hypothetical:

The hypothetical Satanists who are denied access to a school could make claims under the Free Speech Clause, the Free Exercise Clause, and the Equal Access Act. Their case would likely be considered under the Equal Access Act and the First Amendment’s Free Speech Clause—not free exercise law. Under the Equal Access Act (effective since 1984), if a school lets one noncurriculum group meet, it must let all noncurriculum groups meet. When Congress was considering the Equal Access Act, people were concerned that it would lead to an explosion of Satanists, Nazis, and hate groups wanting to meet and organize in schools; however, this “explosion” has not occurred.

Under the Free Speech Clause of the First Amendment, religious expression receives the same level of protection as nonreligious expression. See, e.g., Kunz v. New York, 340 U.S. 290 (1951) (meeting permit). Free speech rights are essentially a ceiling on free exercise rights. The standard of review for free speech cases is the “compelling interest test” giving individuals who exercise their right to free speech the highest level of protection. See Heffron v. Int’l Society of Krishna Consciousness, 452 U.S. 640, 652-53 (1981) (solicitation on state fair grounds).

Thus, once the school lets the Fellowship of Christian Athletes meet after hours, it must let in other groups. This is the case regardless of the standard of free exercise law. The school cannot discriminate among groups except to the extent it needs to regulate disruptive speech. See, e.g., Tinker v. Des Moines, 393 U.S. 503 (1969).

In state offices, if a person, because of a religious belief, wanted to have something distasteful on his desk, could his supervisor—under this law—ask for it to be removed?

It depends. If the item was on a teacher’s desk, it could probably be removed under the Establishment Clause. If the item was on a desk not open for public view, it may be protected by the employee’s free speech rights.

Free speech, the prohibition of establishment of religion, and Title VII considerations all would come into play here. However, like the school example, this scenario is likely going to be considered under the Free Speech Clause. Under U.S. Supreme Court precedent, when government regulates its employees’ speech, a different test applies than when government regulates its citizens’ speech. It’s an easier test for the government to satisfy.

If the dispute over the object on the desk could not be resolved, the state RFRA could be invoked and the courts would have to balance the state’s interest with the free exercise claim through application of the “compelling interest test.”

Is it acceptable to exclude certain people, such as prisoners, from protection under the state RFRA?

No. As an inalienable right, religious liberty should not be denied to any class of persons. Home School Legal Defense Association urges states not to deny the protections of a state RFRA to anyone (including prison inmates). Religious liberty is diminished for all if it is denied to any. Once the government excludes one politically unpopular group, it is all too easy to exempt others. Of the states that have enacted RFRAs to date, none has found the need to exclude anyone.

By Christopher J. Klicka, Senior Counsel for Home School Legal Defense Association. Permission to reprint granted.