The Text Of The Free Exercise Clause As AMeasure Of Employment Division V SmithAnd The Religious Freedom Restoration Act

Congress adopted the Religious Freedom Restoration Act of 1993(1) (RFRA) to overturn the decision of the United States Supreme Court in Employment Division v. Smith.(2) In Smith, the Court declined to mandate a constitutional exemption from the State of Oregon's drug laws for two members of the Native American Church who had ingested peyote as part of a religious ceremony.(3) More generally, the Court held that the Free Exercise Clause provided religiously motivated actors no special exemption from the reach of laws of general applicability.(4) Although religious beliefs were absolutely protected by the First Amendment, religiously motivated conduct was not. Laws of general applicability that adversely affected such conduct were subject to neither more nor less judicial scrutiny than laws that adversely affected conduct of a nonreligious nature.As a consequence of Smith, a law that indirectly, although perhaps substantially, affected a religious practice would be examined under the lowest level of scrutiny, that is to say, virtually none at all. More intense judicial review was reserved for those rare instances in which a law regulated conduct because of, and not merely in spite of, that conduct's religious nature.(5) Smith did not, however, announce the complete demise of religious exemptions from otherwise neutral laws. The Smith Court made clear that its holding did not preclude a legislature from creating an exemption for a religious practice; the Court did hold, however, that such exemptions were not constitutionally required.(6)The response to the Smith decision was intense and highly negative.(7) And although some of that intensity may have been attributable to what was perceived as the Court's insensitivity to a minority religion, the critique of Smith transcended the specific facts of the case. The trouble with Smith, according to its critics, was the doctrine it created, or, perhaps more to the point, the doctrine it destroyed. Prior to Smith, and most notably in Sherbert v. Verner(8) and Wisconsin v. Yoder,(9) the Court had, at least under some circumstances, applied a compelling state interest test to laws of general applicability that either indirectly affected or more directly burdened religiously motivated conduct.Thus in Sherbert, a Sabbatarian was entitled to receive unemployment benefits even though her unemployment resulted only from her refusal to work on Saturdays as required of all other citizens; the otherwise neutral unemployment law substantially and unlawfully burdened the practice of her chosen religion.(10) Similarly, in Yoder, Amish parents were granted a special privilege to withdraw their children from school after the completion of the eighth grade since, according to the Amish, further education would undermine the religious values and salvation of the Amish community.(11) Although the Smith opinion rather inartfully fudged the point, in essence, the Smith Court jettisoned the reasoning and doctrine of Sherbert and Yoder. No longer would courts use the compelling state interest test to examine the constitutionality of a law of general applicability under the Free Exercise Clause, regardless of that law's impact on religious practices.(12)The RFRA was expressly designed to return free exercise claims to their perceived legal status prior to Smith,(13) that is, to affirm the doctrinal legitimacy of Sherbert and Yoder, and, as RFRA's proponents would have it, to return religious liberty to the United States.(14) To this end, section 3 of the RFRA provides that the government--broadly defined to cover all agencies of federal, state and local government--"shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability."(15) In short, the RFRA creates a blanket, generic religious exemption. The only exception, which parallels the doctrinal jurisprudence of Sherbert and Yoder, states: "[government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person--(l) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. …