Note: This is an educational course, not legal advice.
Employment Division v. Smith (1990) set a lower constitutional floor for religious exemptions. Congress, nearly unanimously, set a higher one by statute: the Religious Freedom Restoration Act of 1993 (RFRA). This topic shows how a statute can give more protection than the Constitution requires, and what limits apply. It uses Congress's Section 5 power from Con Law I.
| RFRA's rule | Meaning |
|---|---|
| Government shall not substantially burden a person's exercise of religion, even by a rule of general applicability, unless… | the claimant shows a sincere religious exercise and a substantial burden |
| …it is in furtherance of a compelling governmental interest… | the government must show a compelling interest, applied to this person |
| …and is the least restrictive means of furthering it | if a less burdensome way would work, the government must use it |
Why it works
Boerne left RFRA in force against the federal government, which Congress can bind by statute in its own laws. In Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006) the government had to show a compelling interest in applying federal drug law to a church's sacramental tea. In Burwell v. Hobby Lobby Stores (2014) the Court held, 5 to 4, that closely held for-profit corporations are "persons" under RFRA and that a federal rule requiring their health plans to cover certain contraceptives was not the least restrictive means, since an accommodation already used for religious nonprofits was available. Justice Ginsburg's dissent argued that the ruling let employers' beliefs burden employees. Congress also passed RLUIPA (2000), using its spending and commerce powers, to protect religious exercise in prisons and land use; in Holt v. Hobbs (2015) a state prison had to let a Muslim inmate grow a half-inch beard. Many states have adopted their own RFRAs.
Key idea
RFRA (1993) restored strict scrutiny (compelling interest, least restrictive means) for substantial burdens on religion. City of Boerne v. Flores (1997) held it invalid as applied to states (Section 5 needs congruence and proportionality), but it binds the federal government (Burwell v. Hobby Lobby Stores (2014)). RLUIPA covers state prisons and land use.
Worked example: Federal or state?
A state prison bars a prisoner from wearing a religious head covering. Can he sue under RFRA?
- RFRA does not apply to states after Boerne.
- But RLUIPA (2000) applies to state prisons that receive federal funds and uses the same strict test.
- Holt v. Hobbs applied RLUIPA in a similar case.
Answer: Not under RFRA; under RLUIPA, yes.
Worked example: A federal rule
A federal agency requires all workers at a federal site to work on a day that is a Sabbath for one employee, with no exceptions. What statute and test?
- A federal rule: RFRA applies.
- The worker must show a sincere religious exercise and a substantial burden.
- The government must then show a compelling interest and that no less restrictive means (such as shift swaps) would serve it.
Answer: RFRA: compelling interest and least restrictive means.
Common mistake
Thinking Boerne struck down RFRA entirely. It struck it down as applied to states; federal law remains subject to RFRA, and many states have their own versions. Check: is the government that acted federal or state?