So now I’m trying to work my way back through the history of RFRA, to try to figure out why it had so much support, from the left as well as the right.
The ACLU has a relevant article on its site…but it has no date, which is very unhelpful. But for what it’s worth…
Religious freedom is a fundamental human right that is guaranteed by the First Amendment’s Free Exercise and Establishment clauses. It encompasses not only the right to believe (or not to believe), but also the right to express and to manifest religious beliefs. These rights are fundamental and should not be subject to political process and majority votes. Thus the ACLU, along with almost every religious and civil rights group in America that has taken a position on the subject, rejects the Supreme Court’s notorious decision of Employment Division v. Smith. In Smith, Justice Scalia wrote that the accommodation of religion should be left “to the political process” where government officials and political majorities may abridge the rights of free exercise of religion.
That’s just way too broad – that “but also the right to express and to manifest religious beliefs.” It’s just not true that there’s a sweeping general right to express and to manifest religious beliefs no matter what – it’s a conditional right that can be trumped by more basic rights. Some – indeed many – religious beliefs justify or mandate murder, torture, inequality before the law, subordination of women, genocide, you name it. In the US religious beliefs mandate the forced marriage of underage girls to men decades older; they mandate refusal to get medical treatment for children with treatable diseases; they mandate female subordination; they mandate refusal to vaccinate children.
So, weird city, on this one I agree with Scalia and disagree with the ACLU – but a lot of people are in that position, especially now in the wake of Hobby Lobby. Scalia himself has notoriously shifted.
The note under :
 Employment Division v. Smith, 494 U.S. 872, 890 (1990). The majority opinion was written by Justice Scalia and joined by Chief Justice Rehnquist and by justices White, Stevens, and Kennedy. The Court held that a neutral law of general applicability may constitutionally result in incidental restrictions on free exercise where there was no contention that the government intended to target religious activity with the law. (The ACLU filed an amicus brief before the Court arguing that the free-exercise right should prevail.) The national opposition to the Smith case and its reasoning was overwhelming. The ACLU joined with a broad coalition of religious and civil liberties groups, including People for the American Way, the National Association of Evangelicals, the Southern Baptists’ Ethics Religious Liberty Commission, and by many other groups to urge Congress to reinstitute the rule that religious freedom could be constrained solely if the government had a “compelling interest” in doing so. The Congress agreed overwhelmingly with the ACLU’s position (that was rejected by Justices Scalia, Rehnquist, White, Stevens and Kennedy), and adopted the Religious Freedom Restoration Act of 1993 unanimously in the House and by a vote of 97-3 in the Senate.