Over the last few years, you’ve probably read quite a bit about “Religious Freedom Restoration Acts.” Perhaps the most well-known RFRA over the last few years was Indiana’s, which then-governor Mike Pence signed and later asked the legislature to revise.
Let’s take a look at what RFRAs do and why they most certainly are not blank checks.
In addition to the federal RFRA, signed by President Bill Clinton in 1993, twenty-one states have a version of the law. Here is how a RFRA works.
If somebody challenges a law or invokes RFRA as a defense, courts ask three questions:
- Does the law place a substantial burden on a sincere exercise of religion?
- Does the government have a compelling interest in imposing that burden?
- Is the method that the government is using the least restrictive means of accomplishing its compelling interest?
This infographic helps visualize the way these questions function, but the short of it is this: A RFRA defense will only succeed if the government has substantially burdened a sincere exercise of religion, and the government has no compelling interest in the situation (or the government has a less restrictive means of accomplishing its interest).
Let’s take an example from this list of 10 Americans helped by RFRAs or laws similar to them:
“Abdul Muhammad is a Muslim incarcerated in Arkansas. He was not allowed to grow the 1/2 inch beard his religion commands even though Arkansas permits beards for other reasons. And the same beard would have been allowed in 44 state and federal prison systems in the country. In 2011, he filed suit. He won the suit using the “RFRA for prisoners” — the Religious Land Use and Institutionalized Persons Act. That bill was also signed by Bill Clinton.
“. . . Muhammad won his case unanimously at the United States Supreme Court. They held that he’d shown the restriction was a substantial burden on his religious exercise.”
RFRAs Are Not a Blank Check
From the same list above, we have an example of a time that RFRA didn’t work as a defense:
“Danuel & Mary Quaintance were arrested for running large quantities of marijuana. They argued that they are members of the Church of Cognizance, which Mr. Quaintance founded in 1991. According to the ruling handing down the rejection of their claim, ‘The church is organized around the teaching that marijuana is a deity and sacrament. The Quaintances claimed that they sincerely hold this belief and that possession (and consumption) of marijuana is essential to their religious exercise. Accordingly, they argued the prosecution against them unduly burdened their religious beliefs and thus could not stand under RFRA.’
“The 10th Circuit didn’t buy their story. One of the requirements of RFRA is that targets of government action demonstrate that they have sincere religious beliefs. The court noted that one of their dealers had been hastily inducted into the church the night before he was to pick up his first load of ganja for them. They gave him a certificate designating him an authorized church courier but never had him read the pledge of membership or even asked him if he shared their beliefs. For his part, the courier didn’t share their beliefs and testified that he’d signed up just so he could “do the load” of marijuana he’d been asked to transport.”
Maybe you’re wondering whether RFRA jurisprudence has changed since that case. Let’s look at a more recent example, per Vox:
“A drug dealer tried an innovative legal strategy to defend his heroin business in court: He argued religious freedom laws protect him, because his religious beliefs drive him to sell heroin to people. Therefore, he claimed, the government shouldn’t prosecute him for dealing heroin.
“On Wednesday, the Eighth Circuit Court of Appeals was clear about this interpretation of the law: No, that’s not anywhere close to correct.”
In short, RFRAs are not blank checks to circumvent the law, no matter what you may have read. RFRAs provide a balancing test to prevent the government from infringing on sincere exercises of religion while still allowing the government to accomplish its compelling interests.
For more examples of why RFRAs matter, see this piece by James Gottry at the ADF blog.