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RFRA Should Be Declared Unconstitutional

The Religious Freedom Restoration Act was passed in 1993 by a Democratic Congress and signed into law by President Clinton. The Supreme Court then struck down part of it, the part that applied to state and local actions, but upheld its application in federal law. In that case, City of Boerne v Flores, Justice John Paul Stevens wrote a concurrence that said this:

In my opinion, the Religious Freedom Restoration Act of 1993 (RFRA) is a “law respecting an establishment of religion” that violates the First Amendment to the Constitution.

If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an enlargement of the structure. Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law. Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment.

This is exactly right. RFRA, and its companion law RLUIPA (Religious Land Use and Institutionalized Persons Act), give to religious individuals and organizations — and only religious individuals and organizations — the right to get out of laws that apply to everyone else. This is quite obviously a violation of the First Amendment and the Equal Protection Clause of the 14th Amendment.

Comments

  1. raven says

    Repeating what I read in an article.

    The RFRA was originally invented because two Native Americans were fired for using peyote. This is part of their religion and very old, predating the European invasion.

    Use of hallucinogens in religions has had a mixed history in recent court cases. Some win, some lose. There are churches now in the USA that legally use Ayahuasca, a powerful South American hallucinogen.

    Of course, it has since been applied much more widely.

    I’m hoping the local Aztecs don’t start building flat topped pyramids again and cutting beating hearts out to keep the sun coming up. That might be a religion but it is hard on the neighbors.

  2. raven says

    This is quite obviously a violation of the First Amendment and the Equal Protection Clause of the 14th Amendment.

    True.

    But what good is it doing us and the USA right now? We aren’t the Supreme court. We aren’t even the Municipal traffic court.

    That and $1.75 will get you a cup of coffee at Starbucks.

  3. abb3w says

    Until Scalia keels over dead, repeal of the statute seems a more likely basis for its demise.

    And yes, I’m aware of the chances of such with the current composition of the House.

  4. Pteryxx says

    The RFRA was originally invented because two Native Americans were fired for using peyote. This is part of their religion and very old, predating the European invasion.

    …Why not just legalize peyote and leave the religion part out of it?

  5. says

    What I found completely weird about the Hobby Lobby case is that it wasn’t based on the 1st Amendment, it was based on statutory law, namely RFRA. So for starters, it’s unclear to me why that should take precedence over a more recent law (the ACA) requiring contraceptive coverage for employer-based insurance. Even stranger, RFRA quite explicitly applies only to individuals and religious non-profits. And yet the court majority somehow found that it now applies to for-profit corporations, merely because they didn’t think anyone could show them why it shouldn’t, and even though this was clearly not the intent of the people who passed RFRA. It’s as if they decided that RFRA was part of the Constitution and proceeded to look for unenumerated rights lurking within it. It all makes no sense.

  6. hardindr says

    I dunno about declaring RFRA unconstitutional. It was designed by its authors (like Barry Lynn of AU) to be interpreted very narrowly and to be used to avoid costly litigation for people with religious objections to certain laws/policies that had little negative impact on 3rd parties. Lynn explains this here.

  7. Crimson Clupeidae says

    It won’t be any time soon.

    Standing, you see. The get out of responsibility free card for SCOTUS.

  8. qwints says

    The problem I have with the proposition that the 1st amendment forbids any favoring of religion over non-religion is that it would seem to make the free exercise clause unconstitutional. Exercising one’s religion has to mean more than speech, press, assembly and petition.

  9. raven says

    …seem to make the free exercise clause unconstitutional. Exercising one’s religion has to mean more than speech, press, assembly and petition.

    Oh really?

    No it doesn’t!!!

    You do not have the right to cut out my heart and offer it up to the sun god. You do not have the right to cut off my electricity because you joined the Amish. Or steal my Chardonnay because you are a Mormon. Or bomb the local Starbucks because you are a Seventh Day Adventist.

    In fact, you do not have the right to impose any of your religion on anyone else.

  10. Jeff Engel says

    Re #8, qwints – Would you want to say the 1st Amendment’s forbidding of favoring religion over irreligion is unconstitutional or rather that it’s redundant given the protections of speech, press, assembly and petition? I’d think it’s the latter, and I’d also think there’s no strong reason to suppose that parts of the Bill of Rights cannot be redundant – heck, I’d suggest that’s a plausible way of reading the 9th and 10th amendments.

  11. raven says

    Exercising one’s religion has to mean more than speech, press, assembly and petition.

    Hmmm, well there are some possibilities here.

    As a Norwegian Pagan, we’ve been thinking about building a large wooden boat with a decorative dragon prow.

    Who is up for paying a “visit” to Santa Cruz, Monterey, and Santa Barbara? In the advent that things get a bit dicey, don’t worry. The Valkyries have got your back and Valhalla is a fun place to spend eternity.

  12. says

    The problem I have with the proposition that the 1st amendment forbids any favoring of religion over non-religion is that it would seem to make the free exercise clause unconstitutional.

    The free exercise clause declares that the government shall not interfere with the practice of religion. It doesn’t mean that religious rights trump the rights of others. To use the extreme example offered by Raven: You can freely exercise your worship of the sun god, but you can’t cut another person’s heart out and offer it to the sun god, because that interferes with another person’s rights. The use of peyote or even marijuana is a more compelling case for exemption from normal laws, since using those drugs affects only the person taking them in a religious ceremony.

    Things get more complex when we get to other issues like zoning laws. The government has a compelling interest in restricting certain activities in order to cut down on nuisances like traffic snarls and noise pollution. Most people would say that its reasonable to keep many commercial (non-religious) activities such as a huge mult-plex out of areas that are primarily residential in nature. But what if a religious organiation wanted to build a huge mega-church that receives 1,000 or more people every week in the middle of a residential community? Do the residents not have a right to be free of the traffic jams and noise associated with that every Sunday morning? Under the RFRA as originally written, the answer is no, even though the government interest isn’t in preventing people from worshiping, only that they do it in a location where it doesn’t cause a nuisance for others.

  13. Who Cares says

    @Qwints((#8): Wrong. The 1st prohibits the government from favoring one religion over another (and by extention non religion).
    Further the 1st is a limit on the government, not on people. That is as long as those people are not on the clock working for the government. Thus the distinction between being able to fire/sue a teacher who bring religion into class but the same teacher having the ability to proselytize outside school (incidentally that last is what is protected by the free exercise clause). However the moment that that teacher proselytizing outside school goes: “hey you are in my class and you will listen or I’ll flunk you” we’re squarely back into a violation of the 1st.

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