Why Is the Solicitor General Chipping Away at RFRA?

The Religious Freedom Restoration Act (RFRA), passed in 1993 with overwhelming bipartisan support, was crafted to provide a strong shield for religious liberty. It requires that any government action that substantially burdens religious exercise must be the least restrictive means of advancing a compelling government interest. This principle was not meant to expire or be casually overridden.
 
In a recent Supreme Court filing, the Biden Administration asserted that RFRA can be silently displaced by later statutes, even if Congress says nothing about overriding religious liberty. In a brief footnote, the government argued that if a later statute mandates action – even if it burdens religious exercise – it must override RFRA by default.
 
Perhaps that was to be expected from the Biden Administration, which did not make the freedom of religious exercise a priority. More troubling is that the current administration’s Solicitor General, Dean John Sauer, echoed this view in a letter to the Supreme Court in Apache Stronghold v. United States. Sauer reaffirmed the notion that the land-exchange statute at the heart of the case supersedes RFRA, simply because it came later and is “more specific.”
 
This theory invites the piecemeal erosion of civil liberties. If accepted, it would allow Congress – or perhaps even regulatory agencies – to nullify fundamental rights like religious freedom without ever saying so explicitly. All it takes is a newer law or rule that conflicts with RFRA, and the protections vanish.
 
That logic assumes Congress fully weighs the consequences for religious liberty every time it enacts a new law. It presumes that federal agencies act with constitutional clarity. In truth, lawmakers are not always so meticulous, and regulators have been known to ride roughshod over constitutional protections.
 
This framework has already emboldened efforts to undercut conscience protections in healthcare. Under this view, statutes that promote access to abortion or gender-transition procedures can override RFRA by mere implication – forcing doctors and hospitals to act against their beliefs, without any serious effort to reconcile those conflicts.
 
It is disappointing, to say the least, that a Trump Administration lawyer would continue this Biden-era legacy. Conservatives, especially those with commitments to religious liberty, should reject any legal doctrine that grants Congress or regulators an easy path to nullify core civil rights.
 
RFRA was designed to stand as a bulwark, not a speed bump. Allowing it to be bypassed by silence or implication is not just bad legal reasoning – it undermines a law that reinforces the First Amendment’s guarantee of the free exercise of religion. The Supreme Court declared in 2020 that “RFRA operates as a kind of super-statute, displacing the normal operations of other federal laws.”
 
The Supreme Court should now again affirm that RFRA remains fully in force.

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