Religious Freedom 101

Religious Freedom 101:   Key Judicial & Legislative Milestones

Constitutional Protection:  America was founded by pilgrims who came here to escape religious tyranny and to practice their faiths freely.  Years later, our Founding Fathers would underscore the importance of this fundamental principled, often called the “First Freedom,” by enshrining it in the first amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Sherbert Test:   In 1963, in Sherbert v. Verner, the U.S. Supreme Court established a test based on the first amendment’s free exercise clause.  Adell Sherbert was a Seventh Day Adventist who was fired after she stipulated that she could not work on her Sabbath based on her religious beliefs, and she was later denied unemployment compensation.  The Supreme Court ruled that this denial was an unconstitutional burden on her free exercise of religion.  The Sherbert Test, as it has come to be known, essentially puts the burden of proof on the government.  The test considers:

  1. Whether the claim involves a sincere religious belief
  2. That the government has a compelling state interest
  3. That the government is achieving that goal in the manner least burdensome to religion

The compelling interest test became the legal standard for protecting religious freedom for 30 years, until the Smith Decision in 1990.

Smith Decision: In 1990, the Supreme Court’s decision in Oregon Employment Division v. Smith overruled the Sherbert Test which resulted in a major setback for the first amendment’s guarantee of freedom of religion.  Alfred Smith was a Native American who was fired and denied unemployment compensation for smoking peyote, an illegal drug in Oregon, as part of his religious ceremony.  The Supreme Court ruled in favor of Oregon, saying the law did not violate the free exercise clause as it applied to everyone.  The ruling meant that government no longer had to justify burdens on the free exercise of religion as long as these burdens are “merely the incidental effect of a generally applicable and otherwise valid provision.”   In short, the government no longer had to prove it had a “compelling interest”, merely a “legitimate” interest.

The Federal Religious Freedom Restoration Act (RFRA): 

The federal Religious Freedom Restoration Act was signed into law by President Bill Clinton in 1993, after passing with near unanimous support in Congress.  Sen. Edward Kennedy, Sen. Orrin Hatch, Rep. Charles Schumer and Rep. Chris Cox were the bill’s sponsors.  The bill sought to undo the 1990 Supreme Court Smith Decision, and it reestablished the strict scrutiny test of Sherbert v. Verner.   The Smith decision prompted a public outcry from many religious groups and others, and Congress responded with the RFRA.   RFRA’s do not apply to the states, which was decided by Boerne and therefore many states have enacted their own state or “mini-RFRA,” which reverts back to what had been the law of the land in all 50 states until 1990.

Flashpoint: In March 2014, Hobby Lobby and Conestoga Wood’s claims against the HHS Mandate of the Affordable Care Act were brought to the Supreme Court under the federal RFRA.   At issue was whether or not RFRA applies to for-profit corporations, or just individuals and non-profits. In June 2014, the Supreme Court ruled 5-4 in favor of Hobby Lobby, which opened up the possibility of other faith-based organizations, whether for profit and nonprofit.

Boerne V. Flores:   While this case was filed as religious freedom case, it ended up being resolved by the Supreme Court as a case about constitutional separation of powers and limited government.  Archbishop Flores wanted to expand a church in Boerne, Texas, but the permit was denied. When he sued in a local federal court, under a RFRA claim, the court ruled that RFRA was unconstitutional. In 1997, the Supreme Court ruled that Congress had overstepped its authority when it passed RFRA and that Boerne was restricting the church expansion because it was an historic landmark, which made it a “generally applicable” law.   Its implication on religious freedom essentially meant that the federal RFRA would not apply in the states.

State Religious Freedom Restoration Acts (RFRA’s):

Like the federal Religious Freedom Restoration Act of 1993, state Religious Freedom Restoration Acts (RFRAs) and state court decisions that function as RFRA equivalents require state governments to have a compelling interest in order to justify burdening someone’s free exercise of religion.  In 1997, the Supreme Court, in Boerne v. Flores, ruled that the federal RFRA did not apply to states.  As a result, state legislatures began passing their own state RFRA’s, sometimes called “mini-RFRA’s.”   19 states have state RFRA legislation and another 12 have RFRA-like protections as a result of court rulings.   State RFRA’s are designed to protect people of all faiths, particularly religious and ethnic minorities, from government coercion and violation of their religious freedoms.

Flashpoint:   In March 2014, state RFRA’s came under attack when the Arizona state legislature attempted to pass a very narrow “fix” or amendment to their existing 1999 RFRA.  The bill was intended to make explicitly clear that RFRA laws apply when two people sue each other, where the government would enforce the outcome.   The bill changed the definition of “person” to include for-profits, as people should not lose their fundamental rights just because they open a business or earn a living.   LGBT groups argued that it would give businesses a license to discriminate against LGBT people.

Hosanna-Tabor:   In 2012, the Supreme Court ruled that the “authority to select and control who will minister to the faithful is the church’s alone.” If an antidiscrimination lawsuit attempts to interfere with such matters, the First Amendment does not permit it to proceed.   Cheryl Perich was fired from her teaching job at Hosanna-Tabor Lutheran Church and School for insubordination and the Equal Employment Opportunity Commission took up her case.   The ruling upheld the principle of keeping the government out of the affairs of the church, in this case, the Lutheran church.

Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA):

RLUIPA was passed in 2000 in the wake of Boerne v. Flores, and seen as a “fix” to the federal RFRA.  RLUIPA specifically protects the rights of prisoners to worship according to their consciences and protects religious organizations from burdensome zoning restrictions that prevent the creation and expansion of houses of worship.  It passed the House and Senate by unanimous consent and was upheld by the Supreme Court as constitutional in the 2005 case of Cutter v. Wilkinson. In that case, five prisoners successfully sought to apply the protections of the act to their religious practices.


Blaine Amendments:   James Blaine, the House Speaker in 1875, tried to pass a constitutional amendment that would prohibit government funding to religious schools.  His amendment never became law, but 36 states passed their own version of Blaine Amendments.  They were enacted at the height of the 19th century’s anti-Catholic sentiment, as Catholic immigration increased.  Many states retain these discriminatory constitutional provisions, which are frequently used as weapons to exclude religious persons and associations from full participation in civil society.  The U.S. Supreme Court has recognized the original discriminatory intent of state Blaine Amendments:  In 2002, the Zelman v. Simmons-Harris decision partially negated them, in theory, when it ruled that vouchers were constitutional if state funds followed a child to a privately chosen school, even if it were religious.

This resource is part of the Religious Freedom topic.

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