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The Religious Freedom Restoration Act at 30

Some original supporters of the landmark law to protect conscience rights now want to weaken it

President Bill Clinton talks to supporters of the Religious Freedom Restoration Act after signing the bill into law on Nov. 16, 1993. Associated Press/Photo by Dennis Cook

The Religious Freedom Restoration Act at 30
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Thirty years ago this month, the landmark Religious Freedom Restoration Act (RFRA) was signed into law. The enactment of RFRA was historic in a number of ways, from the broad coalition that rallied around it to the exceptional congressional resolve that passed it. But most of all, RFRA’s enactment was significant because of how the law contributes to practically implementing our first freedom and helping us navigate our differences as a society. Three decades later, that is more important than ever.

The basic principle behind RFRA is that when the government makes policy, it should not interfere with religious believers’ practice of their faith. The coalition that worked for RFRA’s passage brought together 66 diverse religious and civil rights organizations, from the Southern Baptists to the American Civil Liberties Union. Catholic, Jewish, Mormon, Muslim, and many other religious groups participated in the coalition.

Then a member of the House of Representatives, Chuck Schumer, D-N.Y. was the lead House sponsor of RFRA and Sen. Ted Kennedy, D-Mass., sponsored the Senate bill. Support was so high that the House opted to pass the bill by voice vote and the Senate voted 97 to 3 for passage. President Clinton remarked at the signing ceremony, “the power of God is such that even in the legislative process miracles can happen.”

More soberly, President Clinton observed that RFRA “reestablishes a standard that better protects all Americans of all faiths in the exercise of their religion in a way that I am convinced is far more consistent with the intent of the Founders of this Nation than the Supreme Court decision.”

The decision he was referring to was Employment Division v. Smith, handed down by the U.S. Supreme Court in 1990. The Smith decision departed from decades of precedent and made it more difficult for Americans to stand a chance of getting relief when government action infringed on their religious practice. That provoked a groundswell of response. Congress reacted to the Court’s decision by passing RFRA to codify the criteria that had been used before Smith for legal review in religious liberty cases.

RFRA enacted a balancing test to evaluate competing claims in cases of government action interfering with individuals’ or groups’ religious free exercise. If religious believers show that a government policy substantially burdens their faith, the government must show that it has a very important reason to pursue that policy, and that there is no reasonable alternative that could avoid the problem.

A particular strength of RFRA is that it applies across all areas of government action.

The law doesn’t predetermine the outcome of any religious freedom case. It simply gives religious believers the chance to make their case in court and to be judged according to a standard that takes their claims seriously and holds the government accountable for its actions. A particular strength of RFRA is that it applies across all areas of government action. Congress and the original RFRA coalition resisted efforts to narrow its scope through amendments.

For three decades, religious believers have been able to appeal to RFRA to seek exemptions from federal policy that substantially burdens the practice of their faith. This has been important for religious minorities in a variety of policy areas. Over the past decade, RFRA also helped resolve dozens of conflicts for Catholic and evangelical groups, from the Little Sisters of the Poor to Geneva College, who successfully sought exemption from the Obama administration’s requirement that employer insurance plans cover contraceptives and abortion-inducing drugs.

As conscience conflicts have proliferated around new government policies related to abortion, sexual orientation and gender identity, some of RFRA’s original supporters have sought to narrow its scope. Several bills introduced in Congress would remove certain policy areas from the scope of RFRA’s protections. Some of the groups that were at the forefront of the RFRA coalition, such as the ACLU, have supported these new bills.

The proposed Equality Act, for example, would add sexual orientation and gender identity categories to current federal non-discrimination laws. The bill stipulates that RFRA would not apply to conflicts that emerge as a result of the law. That would deny religious adoption agencies or shelters, for example, the chance to appeal to RFRA for relief in such cases. The efforts to narrow the scope of RFRA are antithetical to its premise that religious free exercise should be respected in all areas of the law.

As the attrition of support for that premise shows, there is much more work to be done. RFRA and other religious liberty protections are a part of a larger set of cultural, legislative and legal efforts that will be required to navigate and resolve current conflicts over what it means to be human, created male and female. In that long-term effort, continuing to articulate and defend the rationale behind RFRA for the next generation is a good place to start.

Jennifer Patterson

Jennifer Patterson is director of the Institute of Theology and Public Life at Reformed Theological Seminary (Washington, D.C.) and a senior fellow with the Ethics and Public Policy Center.

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