Restoring Religious Liberty - from Kim Colby

The purpose of the Fortnight for Freedom is to pray for stronger religious liberty in America. Religious liberty was seriously weakened by the Supreme Court’s 1990 decision in Employment Division v. Smith.

Before the Smith decision, the Supreme Court required that the government show a compelling interest to justify any substantial burden on a citizen’s, or institution’s, sincerely held religious belief.  This test had been laid out in the Court’s 1963 decision in Sherbert v. Verner and its 1972 decision in Wisconsin v. Yoder.  For simplicity, we will call it the Sherbert test.  

Even with such a strong test, the government won fairly often.  But the test gave religious citizens leverage.  The government at least had to articulate a strong government interest -- and why that interest could not be achieved by a means less restrictive of the individual’s religious exercise. Often that mean the government deferred to the religious claimant.

In Smith, the Court replaced the Sherbert test with a rational basis test.  If a law is neutral and generally applicable, the government may compel religious citizens and institutions to comply with the law even if it substantially burdens their religious exercise.  The Court left several loopholes in Smith by which religious claimants may still avoid rational basis review and reach strict scrutiny review, but that’s a story for another day.

Today’s focus is Congress’ response to the Smith decision.  The immediate reaction to the Smith decision was sustained outrage by a nearly united religious liberty community.  From left to right, most religious groups demanded congressional action to restore the Sherbert standard.

Congress responded in 1993 by passing the Religious Freedom Restoration Act by nearly unanimous votes in both houses.  President Clinton signed the bill into law.  RFRA (pronounced “riff-ra”) requires that the government (federal, state, or local) demonstrate a compelling state interest unachievable by less restrictive means for any action challenged by a religious citizen as a substantial burden on his or her religious exercise.  

Unfortunately, in 1997, the Supreme Court held that Congress did not have the power to impose the Sherbert standard on state and local officials.  However, in 2006, the Court sustained RFRA’s applicability to federal law.  

Next year, RFRA will celebrate its 20th anniversary as a great bipartisan victory for religious liberty.  Thank God for this law and ask that federal officials will respect it.  Pray for Justice Alito and his work on the Supreme Court.  (As a federal judge on the Third Circuit Court of Appeals, Justice Alito wrote one of the strongest opinions interpreting RFRA.)