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The Religious Freedom Restoration Act: A Legislative History

Published online by Cambridge University Press:  24 April 2015

Robert F. Drinan ,
S.J.  and
Jennifer I. Huffman
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Extract

The effects of Employment Division of Oregon v. Smith, the 1990 Supreme Court free exercise decision, were felt far beyond the members of the Native American Church who were denied the right to ingest peyote as part of a religious ritual. Smith held that as long as a statute was generally applicable and not directed at religion, it would be upheld, regardless of whether it infringed on a religious practice. This unexpectedly broad and severe opinion of the Court galvanized a large number of diverse religious groups as well as various civil rights organizations and the eventual result of their efforts was the Religious Freedom Restoration Act (RFRA), a bill designed to restore free exercise law to its pre-Smith state.

While the RFRA seemed initially to have almost universal backing, it eventually met resistance from various Catholic and anti-abortion groups which feared it could be used to argue for the right to a religiously-motivated abortion. More recently, concerns were expressed regarding the bill's effect on the rights of prisoners. However, despite the concerns, the bill passed both the House and Senate by wide margins and has been signed into law by President Clinton.

Type
Articles
Information
Journal of Law and Religion , Volume 10 , Issue 2 , June 1993 , pp. 531 - 541
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1993

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References

1. 494 US 872 (1990).

2. Id at 878.

3. Religious Freedom Restoration Act, 42 USC § 2000 bb et seq (1993).

4. See Frazee v Illinois Dept of Employment Security, 489 US 829 (1989); Sherbert v Verner, 374 US 398 (1963).

5. 494 US at 878.

6. For example, Barrett, Paul M., Court to Test Religion Rights in Sacrifice Case, Wall Street Journal, 10 28, 1992Google Scholar, at B1; but cf Niebuhr, Gustav, Disparate Group Unites Behind Civil Rights Bill on Religious Freedom, Wash Post, 10 16, 1993, at A7Google Scholar (while a large number of religious groups have been aroused, the public overall has been unmoved by Smith).

7. See, for example, American Friends Service Comm. v Thornburgh, 961 F2d 1405 (9th Cir 1992); Vandiver v Hardin County Board of Education, 925 F2d 927 (6th Cir 1991). See generally Ackerman, David M., The Religious Freedom Restoration Act of 1993: A Legal Analysis, CRS Report for Congress 14–18 (04 23, 1993)Google Scholar. Not all state courts followed Smith. One notable exception is the Minnesota Supreme Court's decision in State v Hershberger, 462 NW 2d 393 (Minn. 1990), where the court avoided Smith by deciding a free exercise claim under the State constitution to provide a religious exemption to Amish defendants charged with failure to display a slow moving vehicle sign required by state law.

8. See, for example, Kissinger v Board of Trustees of Ohio State University, 786 F Supp 1308 (S.D. Ohio 1992); United States v Philadelphia Yearly Meeting of the Religious Society of Friends, 753 F Supp 1300 (E.D. Pa 1990). See generally Ackerman, , CRS Report at 18–20 (cited in note 7)Google Scholar.

9. Yang v Stumer, 750 F Supp 558, 558-59 (D.R.I. 1990).

10. See for example, Elsaesser v City of Hamilton Board of Zoning Appeals, 61 Ohio App 3d 641, 573 v E 2d 733 (1990); Prince v Firman, 584 A2d 8 (DC 1990). See generally Ackerman, , CRS Report at 20–24 (cited in note 7)Google Scholar.

11. Petition for Rehearing, Employment Division v Smith, 494 US 872 (1990), denied, 496 US 913 (1990).

12. HR 5377, 101st Cong, 2d Sess (1990).

13. For example, Hernandez v Commissioner of Internal Revenue, 490 US 680 (1989) (Church of Scientology not entitled to tax deductions for costs of training services); United States v Lee, 455 US 252 (1981) (Amish employer not exempt from paying employer's part of Social Security taxes).

14. Religious Freedom Restoration Act of 1991: Hearings on H.R. 2797 Before the Sub-comm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 102nd Cong, 2nd Sess 385–95 (1992)Google Scholar [hereinafter Hearings] (statement of Prof. Ira C. Lupu) (arguing Congress may lack the power to enact the RFRA).

15. Hearings, (cited in note 14) at 354 (statement of Prof. Douglas Laycock).

16. Religious Freedom Restoration Act of 1990: Hearings on H.R. 5377 Before the Sub-comm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 101st Cong, 2nd Sess 13 (1990)Google Scholar (testimony of Hon. Stephen J. Solarz).

17. Religion and the 103rd Congress, Christian Century, 01 6, 1993, at 7Google Scholar (in the 102nd Congress the RFRA “was ultimately killed by a combination of lack of time and the dispute over abortion”); Marcus, Ruth, Reins on Religious Freedom?; Broad Coalition Protests Impact of High Court Ruling, Wash Post, 03 9, 1991, at A1Google Scholar.

18. Feldmann, Linda, Congress to Boost Freedom of Religion, The Christian Science Monitor, 05 17, 1993, at 1, 14Google Scholar.

19. Hey, Robert P., US Free-Religion Bill Hits Abortion Snag, The Christian Science Monitor, 04 18, 1991, at 7Google Scholar (“key congressional conservatives” have changed position on the bill).

20. Feldmann, Congress to Boost Freedom of Religion (cited in note 18).

21. Silk, Mark, Restoring Faith's Freedom Religious Liberty Bill Cracks Anti-abortion Coalition, The Atlantic Journal and Constitution, 01 25, 1993, at E6Google Scholar.

22. H R 4040, 102nd Cong, 1st Sess (1991).

23. Id.

24. Hearings (cited in note 14) at 82 (statement of Nadine Strossen, President, and Robert S. Peck, Legislative Counsel, American Civil Liberties Union).

25. Id at 105 (testimony of Nadine Strossen, President, American Civil Liberties Union), Id at 125 (statement of Hon. Stephen J. Solarz) (asserting that the RFRA does not write any new law in the area of abortion).

26. Memorandum from the Congressional Research Service, Nov 18, 1991.

27. Hearings (cited in note 14) at 126 (statement of Hon. Stephen J. Solarz).

28. Id at 38 (statement of Mark E. Chopko, General Counsel, on behalf of the United States Catholic Conference).

29. Id at 40 (statement of Mark E. Chopko, General Counsel, on behalf of the United States Catholic Conference); but see Id at 60-1 (questioning of Mark E. Chopko by Hon. Craig A. Washington) (Mr. Chopko admitting that he had no specific names of Members of Congress that asserted that RFRA was. designed for use in abortion claims).

30. Id at 7 (testimony of Hon. Henry J. Hyde).

31. Id at 44 (statement by Mark E. Chopko).

32. Id at 46.

33. Id at 44.

34. Id at 44-45.

35. Id at 135 (testimony of Hon. Stephen J. Solarz).

36. Id at 285 (statement of James Bopp, Jr., General Counsel, National Right to Life Committee, Inc.).

37. Id at 128 (letter from Hon. Stephen J. Solarz to Hon. Don Edwards).

38. Id at 130.

39. S Rep No 111, 103d Cong at 12 (1993).

40. Catholic Group Will Back Act on Religious Freedom, Los Angeles Times, 03 13, 1993, at B4Google Scholar (director of the U.S. Catholic Conferences' Office of Government Liaison agreed “Casey changed the abortion landscape”).

41. Id.

42. S Rep No 11; H R Rep No 88, 103d Cong (1993).

43. Catholic Group Will Back Act on Religious Freedom (cited in note 40).

44. Fournier, Ron, Clinton Talks of Humility Faith at Prayer Meeting, St. Petersburg Times, 09 4, 1993, at 3Google Scholar; Congress Moves to Lift Ban on Religious Practices, PR Newswire, 06 30, 1993Google Scholar.

45. Claiborne, William,State Officials Seeking to Derail Religious Rights Measure, The Wash Post, 008 6, 1993, at A2Google Scholar.

46. Id.

47. Claiborne, State Officials (cited in note 45) (prisoner in Ohio sued claiming he was required by his religion to have steak and wine every night); but see Frivolous Objection in a Case of Religious Freedom, The Wash Post, 08 21, 1993 (Editorial), at A20Google Scholar (“most states' attorneys general support RFRA without any exemption for prisons”).

48. Claiborne, State Officiais (cited in note 45).

49. Id.

50. Wilson, James C., Religious Freedoms: Lost and in Need of Restoration?; Let Us Prey, The Recorder, 08 13, 1993, at 9Google Scholar.

51. See for example, Cruz v Beto, 405 US 319 (1972); Cooper v Pate, 378 US 546 (1964).

52. 482 US 342 (1987).

53. S Rep No 111 at 9.

54. Id at 11.

55. Saperstein, David and Thomas, Oliver, Religious Freedoms: Lost and in Need of Restoration?; Suspension of Belief, The Recorder, 08 13, 1993, at 8Google Scholar.

56. H R Rep No 88.

57. 139 Cong Rec S15342 (daily ed Oct. 26, 1993) (Letter from Robert Abrams, Attorney General of New York, to Senator Edward M. Kennedy and Senator Orrin G. Hatch).

58. Id at 14361 (statement of Senator Orrin Hatch).

59. Id at 1452.

60. 113 S Ct 2217 (1993).

61. Fein, Brace, Ruling Makes Religion Bill Unnecessary for Freedom, Insight, 07 19, 1993, at 34Google Scholar.

62. 137 Cong Rec E2422 (daily ed June 27, 1991) (statement of Rep. Stephen J. Solarz).