The Religious Freedom Restoration Act of 1993 (RFRA) turns 30 years old tomorrow. RFRA was a landmark bill signed into federal law by President Bill Clinton that ensures religious freedom is protected from government overreach. Thirty years on, RFRA has become a cornerstone of religious freedom, putting statutory muscle behind the promise of the free exercise of religion in the First Amendment.
Congress drafted RFRA in response to the Supreme Court’s decision in 1990 in Employment Division v. Smith, which held that government can burden religious exercise so long as it uses a neutral, generally applicable law to do so. This sounds reasonable but it had the practical effect of permitting overweening rules and regulations to throttle religious practices, from Sikhs wanting to carry a kirtan in public, to U.S. Navy sailors wishing to wear a kippah, to Native Americans wishing to worship at sites that have been held sacred for hundreds of years.
RFRA has dramatically expanded the latitude for religious freedom for this increasingly diverse American society.
Lori Windham, Vice President and Senior Counsel at the Becket Fund, writes that “although some predicted that RFRA’s standard would be a recipe for anarchy, it has instead proven that religious liberty works remarkably well in practice.” She adds that “RFRA has served as a bedrock protection for religious groups ranging from Apache feather dancers to Catholic religious sisters.”
Although RFRA applies to all faiths and creeds, it has been essential in preserving the rights of religious minorities by giving them their “day in court.” As Becket argues, despite assertions that RFRA “opens the floodgates … for imposing Christian values in the areas of abortion, contraception, and gay rights,” RFRA primarily benefits these minorities. According to Becket, a comprehensive empirical study of religious freedom cases from 2012 to 2017 reveals that religious minorities are significantly overrepresented in religious freedom cases.
The federal RFRA has been so successful and popular that, in recent years, half of all states have passed their own versions of RFRA to strengthen the legal protections afforded to religious beliefs and practices within their borders. With North Dakota and West Virginia joining the list of states with RFRA laws earlier this year, twenty-five states now have their own form of RFRA. State courts have adopted this standard in nine additional states.
Religious expression is not some isolated activity which we schedule for certain parts of the week. It is fundamental to our identity, which is why it is included among our first freedoms. The growth of state RFRAs in the last thirty years is a testament to the bipartisan interest in the vitality of religious liberty. As Protect The 1st blows a birthday candle, we wish that perhaps thirty years from now there will be a RFRA in every state.
On Thursday, November 16th at 12:00 pm ET, the Orrin G. Hatch Foundation will host a panel on “Thirty Years of the Religious Freedom Restoration Act: Reflecting on the Past, Looking to the Future.” We urge our readers to attend online.