1AP’s 3 Things to Know—Religious Freedom Restoration Act (RFRA)

  1. What does a Religious Freedom Restoration Act (RFRA) do? RFRA creates a way for people to sue the government if it violates their religious freedom. If a person or group feels their rights have been violated, they can sue under RFRA and argue that the government has placed a substantial burden on their sincerely-held religious belief. Then it’s up to the government to prove that it has a compelling interest in interfering with the activity and that it has used the least restrictive means to do so. See some real-life examples here.
  2. Who does RFRA help? RFRA protects people of all faiths, but it is especially helpful for minority faiths. Sometimes laws that have nothing to do with religion can burden people of faith. This is especially true for minority religions whose traditions are not always part of the mainstream culture. This can include things like maintaining dietary restrictions or wearing head coverings or facial hair. RFRA creates a way for these people to gain an exemption so that they can practice their religion. It has been used by the Amish, Native Americans, Sikhs, and many others to ensure that they can fully participate in society without violating their faith.
  3. Why do we need state RFRAs? The Supreme Court ruled that the federal RFRA only applies to actions by the federal government. So if it’s a state law or agency violating a person’s rights, they can’t sue under the federal RFRA. In the 13 states with RFRA-like protections, people have sued arguing that the state constitution’s version of the 1st Amendment should function like a RFRA, and the courts have agreed. But for the other 16 states, no RFRA means it’s much harder to change things if you feel the state government has violated your religious freedom rights.

So why not pass RFRAs in the 16 remaining states?

Over the past decade, RFRAs have been unfairly maligned as a way to discriminate against LGBT people, even though RFRA protects all LGBT people of faith. Even though RFRAs are used nationwide to help people live out their faith, there just isn’t political capital to pass any more of them. The most recent state RFRAs passed in 2015, and they were accompanied by major political fights and boycotts.

The other problem with RFRA is it requires people to go to court. It doesn’t really feel like a victory when you’ve spent years of your life and tens of thousands of dollars (or more!) fighting the government. Legislation that provides clear boundaries for the government is better for the people it’s meant to protect.

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