Religious Freedom Restoration Act of 1993

Until 1990 courts interpreted the Free Exercise Clause as mandating an exemption from a generally applicable statute, ordinance, or regulation which burdened the free exercise of religion unless the law was supported by a government interest of the highest order which was effected by a legislative program which had the least possible burden on the free exercise of religion. See e.g., Sherbert v. Verner, 374 U.S. 398  (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972).  In 1990, the United States Supreme Court somewhat diminished Free Exercise Clause exemptions from generally applicable laws. See Employment Div. v. Smith, 485 U.S. 660 (1988).

Congress responded by passing the Religious Freedom Restoration Act of 1993 and the Religious Land Use and Institutionalized Persons Act of 2000.  The United States Supreme Court has declared the Religious Freedom Restoration Act unconstitutional to the extent that it is applied against state and local laws. City of Boerne v. Flores, 521 U.S. 507 (1997).  It has continuing force and effect against federal statutes and regulations.  Many states also passed statutes which to one degree or another restore earlier protections for the free exercise of religion.  Those state statutes may be found at the Lewis Roca Rothgerber Christie Religious Liberty Archive’s State Statutes. 

Lewis Roca Rothgerber Christie Religious Institutions Group

42 U.S.C. § 2000bb. Congressional findings and declaration of purposes

(a)        Findings

The Congress finds that –

(1)        the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution;

(2)        laws “neutral” toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;

(3)        governments should not substantially burden religious exercise without compelling justification;

(4)        in Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and

(5)        the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.

(b)        Purposes

The purposes of this chapter are –

(1)        to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and

(2)        to provide a claim or defense to persons whose religious exercise is substantially burdened by government.

42 U.S.C. § 2000bb-1. Free exercise of religion protected

(a)        In general

Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.

(b)        Exception

Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person –

(1)        is in furtherance of a compelling governmental interest; and

(2)        is the least restrictive means of furthering that compelling governmental interest.

(c)        Judicial relief

A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.  Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.

Section 2000bb-2. Definitions

As used in this chapter –

(1) the term “government” includes a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, a State, or a Documents subdivision of a State;

(2) the term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, and each territory and possession of the United States;

(3) the term “demonstrates” means meets the burdens of going forward with the evidence and of persuasion; and

(4) the term “exercise of religion” means religious exercise, as defined in section 2000cc-5 of this title.

[Editor’s Note: The Religious Land Use and Institutionalized Persons Act (RLUIPA) of 2000, 42 U.S.C. § 2000cc-5(7)(A) defines “religious exercise” as follows:  “The term ‘religious exercise’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”

RLUIPA further clarifies, at 42 U.S.C. § 2000cc-5(7)(B) that, among other practices, “[t]he use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose.”]

Section 2000bb-3. Applicability

(a)        In general

This chapter applies to all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993.

(b)        Rule of construction

Federal statutory law adopted after November 16, 1993, is subject to this chapter unless such law explicitly excludes such application by reference to this chapter.

(c)        Religious belief unaffected

Nothing in this chapter shall be construed to authorize any government to burden any religious belief.

Section 2000bb-4. Establishment clause unaffected

Nothing in this chapter shall be construed to affect, interpret, or in any way address that portion of the First Amendment prohibiting laws respecting the establishment of religion (referred to in this section as the “Establishment Clause”).  Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, shall not constitute a violation of this chapter.  As used in this section, the term “granting”, used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions