The Religious Freedom Restoration Act

Via the always useful Cornell Legal Information Institute.

(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.

Via the often useful Wikipedia.

The Free Exercise Clause of the First Amendment states that Congress shall not pass laws prohibiting the free exercise of religion. In the 1960s, the Supreme Court interpreted this as banning laws that burdened a person’s exercise of religion (e.g. Sherbert v. Verner374 U.S. 398 (1963); Wisconsin v. Yoder406 U.S. 205 (1972)). But in the 1980s the Court began to allow legislation that incidentally prohibited religiously mandatory activities as long as the ban was “generally applicable” to all citizens.

“Religiously mandatory activities” can mean a lot of things – such as refusing to seek medical treatment for a sick child, or murdering a daughter for perceived violations of rules governing sex, or killing all believers in a rival sect. A secular state shouldn’t be messing with the concept of “religiously mandatory activities” at all.


  1. MFHeadcase says

    Hell, the RFRA was written in response to SCOTUS rulings against minority religions.

    Now SCOTUS is using it to claim further power for the dominant religion.

    Three of the five who chose to misuse the RFRA this way were involved in the decision that caused it to be passed.

  2. coelsblog says

    It seems to me that the Religious Freedom Restoration Act is unconstitutional, since it violates the Lemon Tests, specifically it has a religious purpose rather than a secular purpose and it has the effect of promoting religion. What it does is establish religious *privilege*, by privileging a *religious* motivation for doing or not doing something above a secular motivation for doing or not doing that same thing.

    The previous SC rulings had it right. This is Scalia from the 1990 “Employment Division” ruling:

    “… the Clause [1st Amend.] does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons.”

    The Religious Freedom Restoration Act would be more properly called the Religious Privilege Establishment Act.

  3. jesse says

    All that means tho is that even ell-intentioned laws can go awry.

    It also points up a weakness (more a meta-issue I guess) in the way we set up our legal system for dealing with challenges like this. There’s no differentiation between relative power in the way we approach jurisprudence in the US. That is, we strive to have laws that are neutral, in the sense of not putting bigger burdens on one group of people for their religion or race, for instance. We also strive to make our laws specific (in fact any law can be Constitutionally challenged on grounds of vagueness).

    Problem is, that doesn’t address the very real differences between groups of people. The Native Americans who objected to roads being built through what was their land are not in the same position as a major employer, but the law isn’t set up to recognize that. Except in terms of civil rights law, it’s hard to even broach those questions. Especially given that the US has a legal system that expressly ignores issues of social power from say, being rich or poor. (There are real reasons for this, and not all of them are bad, but the effect is still problematic).

    The Hobby Lobby decision tho is especially pernicious because t accepted the definition of abortaficient as the one Hobby Lobby’s owners had, even though it was nonsense. That means in the next lawsuit I could say it is my sincere religious belief that HIV is caused by demon possession, therefore I will not cover HIV meds. It also doesn’t address what happens in cases where pregnancy is really dangerous as it is for some women. (Like, life-threatening). There’s a big honking assumption on the part of the (male I bet) justices that pregnancy is always safe. It isn’t. I wonder what Scalia or Roberts will say when the first woman dies because of this decision.

  4. alqpr says

    The word “religion” has no place in laws or constitutions of any kind. It should be replaced everywhere by “personal conscience” so that people like me are afforded equal protection to who proclaim some kind of “religious” affiliation (whatever that means).

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