2022 State Legislative Sessions: An Overview on Religious Freedom Restoration Acts
The free exercise of religion has been called America’s “first freedom” because it is the first one enumerated in the U.S. Bill of Rights. Historically, America has been a place where people of any and all faiths could live in accordance with their sincerely held beliefs without fear of government discrimination. However, changes to the way courts review religious freedom claims have made additional legislative protections for America’s first freedom necessary. Thankfully, this year, state legislators continued their efforts to ensure that every state affords the same legal protection for religious freedom afforded by federal law (in federal legal contexts) by introducing Religious Freedom Restoration Acts (RFRAs).
Like the federal Religious Freedom Restoration Act, state RFRAs require state courts to use a balancing test in cases concerning religious freedom claims to ensure that a law, regulation, or rule:
- Does not substantially burden a citizen’s sincere exercise of religious freedom, unless
- It furthers a compelling government interest and
- It uses the least restrictive means of furthering that compelling government interest.
Additionally, many RFRAs create a cause of action for individuals whose religious freedom has been violated by the government.
To explain the need for state-level RFRAs, a brief legal background is needed.
Historically, when a federal or state legislature passed a law restricting a constitutionally protected right, the courts would deem that law unconstitutional unless it passed the “strict scrutiny” test. This test requires the state to demonstrate that the law promotes a “compelling governmental interest” and is narrowly tailored to advance that interest in the “least restrictive means” possible. However, in the 1990 case Employment Division v. Smith, the U.S. Supreme Court ruled that laws restricting religious freedom need only pass the “rational basis” test—demonstrating only a “legitimate interest” (not a compelling one) with a neutral application (rather than the narrowest application possible). “Rational basis” is the lowest of the three levels of legal scrutiny, and by denying religious freedom the highest level of scrutiny, the U.S. Supreme Court denied religious freedom claims the legal status that a constitutionally protected right deserves.
Congress responded by passing the Religious Freedom Restoration Act of 1993, which required courts to use the strict scrutiny standard in religious freedom cases. The strongly bipartisan measure passed unanimously in the House, was supported by all but three senators, and was signed by President Bill Clinton. However, in the 1997 case City of Boerne v. Flores, the U.S. Supreme Court ruled that Congress had no power to apply this standard to state and local legislation. This Court decision made it vital for each state to pass its own RFRA.
Opposition to RFRA is a relatively recent occurrence. In 2015, at the height of the debate over same-sex marriage, groundless fears were stoked by the left that RFRA would sanction discrimination against those who identify as LGBT. However, RFRA’s long track record proves otherwise. RFRAs do not allow businesses to turn away customers or engage in discrimination as they see fit. Opponents of state RFRAs raise all kinds of hyperbolic hypotheticals, but when asked for examples of where a RFRA has been abused in this way, they cannot cite a single example, despite the fact that RFRA has existed federally and in half of the states since the 1990s and has been invoked in hundreds of cases. RFRA is a shield, not a sword, and provides a useful and time-tested balancing test for religious freedom cases. It has been used over the years to protect the religious practices of Native Americans, the right of liberal churches to resist state efforts to co-opt them as immigration agents, and the right of nuns not to provide abortifacient drugs to their employees.
RFRAs were proposed in five states this year—Iowa, Nebraska, New Jersey, West Virginia, and Wyoming. Each of these states introduced bills containing a cause of action for individuals whose religious freedom rights have been violated by a government official, in addition to establishing the balancing test mentioned above. Iowa, Nebraska, and West Virginia introduced RFRAs that included provisions to prohibit the government from treating religious organizations and conduct more restrictively than secular organizations and conduct during a state of emergency. The need for these provisions was born out by government overreach in response to the COVID-19 pandemic when some churches were ordered to close while businesses were allowed to remain open. These provisions continue to be introduced, either as part of RFRAs or as standalone bills, but the need for broader protections—RFRAs—is made clear by the fact that states with RFRAs did not need additional, specialized, stand-alone legislation.
The number of introductions this year was similar to last year’s numbers, but unfortunately, none of these bills have been enacted in 2022. Ironically, until this year, the number of enacted RFRAs had been steadily rising each year since 2015.
Legislatures in 24 states have successfully enacted RFRAs, the most recent being Montana, North Dakota, and South Dakota last year. In addition to these, some state courts apply a similar “strict scrutiny” standard due to state court precedent. Depending on a state’s political environment, it may or may not be advisable to strengthen a given state’s court precedent with legislation.
Every American deserves to have their freedom of conscience defended against government intrusion. To accomplish this, legislators in states that still lag behind the rest of the nation need to enact RFRAs to protect the status of religious freedom as a fundamental right.