What Is RFRA?

The federal RFRA (short for “Religious Freedom Restoration Act”) was enacted in 1993 with the goal of protecting religious liberty, especially the liberty of religious minorities. And since then, 21 states have also enacted their own RFRAs. Over the past two decades, however, RFRAs have been used in ways its original proponents never imagined. Unfortunately, many are now trying to use RFRAs to overturn laws protecting against discrimination and ensuring access to health care. And those who continue to advocate for state RFRAs make it clear that they also intend to use RFRA is these troubling ways.

Why Did Congress Pass RFRA?

In 1990, the Supreme Court ruled in Employment Division v. Smith that neutral and generally applicable laws do not violate the Free Exercise Clause of the U.S. Constitution even if they result in a substantial burden on religious exercise. Thus, the Court concluded that the state did not violate the free exercise rights of two Native Americans when it enforced a policy to deny them unemployment benefits after they’d been fired for using peyote as part of a religious ritual. At the time, people from many faiths and denominations, legal experts, and civil liberties advocates—including Americans United—saw the decision as a drastic change that would weaken constitutional protection for religious liberty. Progressive and conservative groups joined together in a broad coalition to advocate for a congressional response to the Smith decision and in 1993, Congress passed RFRA.

RFRA was meant to be a shield to safeguard religious freedom, not a sword to harm others. It was supposed to provide relief in situations where, for example, a Sikh student was prohibited from wearing a turban at a school that bans head gear, a prisoner was denied the right to attend religious services, or a Jewish government worker was refused time off for Rosh Hashanah. It was never meant to let individuals—let alone for-profit corporations—harm and discriminate against others. 

How Was the Law Supposed to Work?

RFRA says that the government may not cause a substantial burden on religion unless it has a compelling interest and the law is narrowly tailored.

The law was intended to reflect the state of the law before the Smith decision: to provide heightened but not unlimited protections for religious exercise. Thus, RFRA was not designed to protect minimal burdens on religious exercise.  And even substantial burdens are permitted where necessary to achieve a compelling government interest, which had included preventing tangible harm to third persons and combating discrimination.

What Went Wrong?

In the early 1990s, some landlords refused to rent apartments to unmarried couples on religious grounds and brought lawsuits, in some cases under RFRA, to obtain exemptions from laws prohibiting housing discrimination. These cases led many groups to reassess their support for RFRA. Indeed, after the Supreme Court held in 1997 that RFRA could not apply to the states, Congress attempted to pass a new bill, the Religious Liberty Protection Act, that would have applied the RFRA standard to the states, but it failed to pass because of concerns that the law would be used to justify discrimination.

Over the years, the concerns about RFRAs have only grown.  Since the passage of the federal RFRA, many have attempted to use the law to trump non-discrimination, health, and safety laws. In addition, the courts—including the Supreme Court in Burwell v. Hobby Lobby Stores—have interpreted RFRAs in ways that sponsors never intended.

Today, many who support passage of state RFRAs intend for them to be used to trump non-discrimination laws, especially those that prohibit discrimination against LGBT individuals, and laws that ensure access to healthcare. And tellingly, proponents of the new state RFRAs have refused to change the legislation to prevent the laws from allowing discrimination.

How Are RFRAs Being Misused?

Many people and corporations are trying to use RFRAs in ways that harm other people.

If There’s a Federal RFRA, Why Do States Have RFRAs Too?

Congress originally intended for RFRA to apply to both the federal government and the states. In City of Boerne v. Flores, however, the Supreme Court ruled that applying RFRA to the states violated the U.S. Constitution. The federal RFRA, therefore, applies only to the federal government, the District of Columbia, and federal territories such as Puerto Rico and Guam.

After City of Boerne, all eyes turned to the states, and several states passed their own RFRAs. 

At first, state supporters had the same good intentions as the original supporters of the federal RFRA. But today, supporters of state RFRAs make it clear that they intend to authorize discrimination against LGBT Americans and denial of reproductive healthcare to women. The RFRA that passed in Indiana in 2015 illustrates their motives: the law was backed by anti-gay groups and its supporters described it as a way to ensure that businesses could discriminate against same-sex couples.

If RFRAs Are Being Misused, Why Not Repeal Them?

The need for affirmative protections for religious exercise is as true today as when RFRA was enacted. For example, in 2015, a Sikh student used the federal RFRA to successfully challenge Army regulations that barred him from enlisting in ROTC while wearing his articles of faith. And several Sikh soldiers, including an officer, have recently won accommodations to serve in the Army while wearing their articles of faith. Churches have used RFRAs to challenge restrictions on their ministries to feed the homeless.  Native Americans have used the federal RFRA to challenge restrictions on their use of eagle feathers in religious ceremonies.

We believe that RFRA should be restored to its original intent, not repealed. RFRA must provide protections for religious exercise without imposing harms on others.

How Can We Restore RFRA?

We believe it is time to amend the federal RFRA to restore it to its original purpose. What is needed is an amendment to clarify that RFRA cannot be used to create religious exemptions to laws which result in harm to a third party. RFRA shouldn’t be used to:     
  • trump non-discrimination laws
  • evade child welfare laws 
  • undermine workplace laws
  • deny access to healthcare 
  • refuse to provide government-funded services under a contract 
  • refuse to perform duties as a government employee
We support the Do No Harm Act, introduced by Reps. Joseph Kennedy (D- RI) and Bobby Scott (D-VA) on July 13, 2017, which would preserve RFRA’s power to protect religious liberty while clarifying that RFRA may not be used to harm others.