Religion holds a unique place in American law. The First Amendment prohibits the government from making any law “respecting an establishment of religion, or prohibiting the free exercise thereof.”

This constitutional protection for, and against, religion has proven contentious for centuries and continues to spark controversy today. Disputes often pit advocacy groups from one side of the political divide against the other. The U.S. Supreme Court also regularly hears cases interpreting the Establishment Clause and the Free Exercise Clause.

The federal Religious Freedom Restoration Act (commonly shortened to “RFRA” and pronounced “Rifra”) was passed in 1993 to provide stronger protections for religious free exercise. Since that time, it has become part of the national debate over same-sex marriage and religious freedom. This article provides an overview of the federal act and some brief information about similar state laws and current issues.

The Road to RFRA: Some Historical Background

We’ll start with some legal history. Congress passed the Religious Freedom Restoration Act in response to a specific Supreme Court decision, Employment Division v. Smith (1990). There, the Court revised a decades-old constitutional rule from Sherbert v. Verner (1963) that permitted plaintiffs to seek exemptions from federal laws infringing upon their free exercise rights.

Instead, Smith held that religious plaintiffs couldn’t be exempted from neutral, generally applicable laws. In the case itself, the Court permitted the state of Oregon to deny unemployment benefits to Native American plaintiffs who were fired for ingesting peyote during a religious ceremony. Widespread concern over this apparent narrowing of free exercise rights (and disagreement with the result) prompted legislation to change it.

Congress passed the Religious Freedom Restoration Act to reverse the Smith decision. The story doesn’t end there, however. Originally, RFRA was also written to apply to state laws infringing upon free exercise rights. But the Supreme Court struck down those provisions as unconstitutional. While RFRA remains federal law today, many states have enacted their own RFRA laws to provide similar protections under state law. Recently, these efforts have attracted attention for reasons unrelated to the early push for RFRA laws.

Federal Religious Freedom Restoration Act Overview

The Religious Freedom Restoration Act expressly restored Sherbert’s free exercise exemption rule. “Government shall not substantially burden a person’s free exercise of religion,” the law states, unless it “is in furtherance of a compelling governmental interest” and is the “least restrictive means of furthering that compelling governmental interest.”

This language carries legal significance. It constitutes a legal standard of review known as strict scrutiny. This is a tough standard for the government to meet – it’s commonly used when courts review racially discriminative laws and laws affecting someone’s free speech rights. Religious freedom under RFRA receives the same level of protection, as it did before Smith.

RFRA provides options for litigants. Plaintiffs filing a religious discrimination lawsuit can allege a RFRA violation in order to obtain relief from a federal law or some federal action. An example might be a religiously conscious business challenging federal healthcare laws. Alternatively, defendants can claim a RFRA violation as a defense to a lawsuit. An example might be a church, mosque, or synagogue sued for gender discrimination. Cases fitting these examples have recently been before the U.S. Supreme Court and attracted that controversy mentioned above.

It’s worth noting that many state RFRA laws are written to mirror the federal Religious Freedom Restoration Act. The language is generally the same, but the context has changed over time.

RFRA Today: Religious Freedom vs. Other Rights

Today, RFRA attracts controversy for different reasons. Recent rulings legalizing same-sex marriage across the United States have raised the profile for same-sex rights. Some religious groups (and their lawyers) have advocated using the Act to permit businesses and individuals to refuse to serve same-sex couples and refuse to employ same-sex employees on religious grounds. Same-sex rights groups, naturally, oppose this idea. Many have criticized recent attempts to pass state RFRA laws as an effort to give cover to same-sex discrimination. Whether either of these views has any legal merit remains an open (and hotly debated) question.

There are other issues where disputes between religious free exercise and other rights arise. Many federal and state non-discrimination laws contain prohibitions against religious discrimination but exempt churches and other religious groups. A religious organizations’ decision to hire or fire employees based on religious grounds can impact their free exercise rights as well as their employee’s rights under federal and state employment laws. There are many other examples of where free exercise rights can conflict with other rights and numerous laws. The federal Religious Freedom and Restoration Act and equivalent state laws frequently find themselves in the middle of it all.

Getting Legal Help

Cases involving religion and the law often involve questions of discrimination. For further help with a particular case, we recommend contacting a discrimination attorney for further advice and assistance.