Issues Library—Religious Freedom

Religious Freedom Restoration Act

What is the Religious Freedom Restoration Act?

The Religious Freedom Restoration Act (RFRA)¹ was a 1993 federal law that attempted to use Congressional Fourteenth Amendment powers to require state and federal governments to give religious freedom a higher level of protection. Specifically, it reestablished a test by which courts must give the highest deference to a person’s religious practice (known as the compelling interest test). This test puts the burden of proof on the government to show that its regulation of a religious practice is essential to achieve a compelling governmental interest and the least restrictive means to achieve that interest.

Where Does the Act Stand Now?

RFRA still applies to federal actions involving religious practice. In the 1997 Supreme Court case of City of Boerne v. Flores 521 U.S. 507 (1997), the Court struck down the law as it applied to the states, saying that Congress cannot require states to use the compelling interest test in religious freedom cases. This is because of the widely recognized principle that states have the freedom to award individual rights much higher protection than that offered by the federal government.

States are free to enact their own versions of the RFRA and to apply the compelling interest test to religious freedom cases. As of April 2011, more than a quarter of the states have acted to protect religious freedom by passing some version of a Religious Freedom Act. These states are Arizona, Connecticut, Florida, Idaho, Illinois, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, Virginia, and Washington.² Alabama made religious freedom even more secure by specifically amending its state constitution to recognize religious freedom as a fundamental right protected by the compelling interest test. Michigan, Massachusetts, Minnesota, Ohio, and Vermont all have state court cases affirming the people’s right to religious freedom.