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What Is a State Religious Freedom Restoration Act (RFRA) and Why Does it Matter?
By Frank DeVito
If you are in any way involved in the work of faith-based nonprofits or religious liberty in America, you have likely come across the term “RFRA.” So what is a RFRA? What is the difference between the federal RFRA and a state RFRA? And what does a RFRA have to do with you and your nonprofit organization? Read on to find out.
What is a RFRA?
A Religious Freedom Restoration Act (RFRA) refers to a law or constitutional amendment that protects religious freedom when the government seeks to pass a general law that would burden religious freedom. By passing a RFRA, a government voluntarily limits its abilities to exercise power over religious activity, providing more protection to religious exercise than the Constitution (as currently interpreted) provides.
The origins of RFRA began in the wake of the Supreme Court’s highly controversial Employment Division of Oregon v. Smith decision, which held that neutral laws of general applicability could burden religious belief and exercise.1 This ruling meant that, even if a law burdens the exercise or religion in practice, the law does not violate the First Amendment as long as the law is neutral, does not openly target religion, and applies to religious and secular persons and organizations equally.
In response to the Smith decision, Congress passed the federal RFRA. In RFRA, Congress sought to ensure that a law could only burden religious free exercise if the law satisfied an analysis akin to strict scrutiny.2 Practically, this means that even if according to Smith a law does not violate the First Amendment, the government must prove that a law burdening religious exercise furthers a compelling government interest and that there is no way to further that interest that would be less burdensome to religious freedom.
What is the difference between the federal RFRA and a state RFRA?
After Congress passed the federal RFRA, the Supreme Court invalidated the federal RFRA as applied to the states in a case called City of Boerne v. Flores. The Supreme Court held that RFRA only applied to federal statutes passed by Congress, not to state statutes. Thus, a state government can restrict religious free exercise under the more permissive Smith framework without violating RFRA.
In response, certain states have enacted their own RFRAs, voluntarily limiting the state government’s ability to exercise power over religious activity.3
Currently, 30 states have state RFRAs. 28 of those states have RFRAs that provide religious liberty protections that are essentially the same as the federal RFRA: they require the government to show that a law – even a neutral, generally applicable law – that burdens religious exercise serves a compelling interest and is narrowly tailored to accomplish that interest. Pennsylvania and Indiana have modified RFRAs that appear to offer less protection than the typical RFRA.
While most state RFRAs are similar to the federal RFRA, it is worth highlighting two positive innovations in certain states.4
First, several states include a provision that, if a person is victorious in his RFRA lawsuit, he can collect attorneys’ fees from the losing party, which is often the government. This can help individuals or organizations with limited financial means afford to file a lawsuit if they have had their religious liberty violated.
Second, some states have made clear that a RFRA lawsuit can be filed even if a government entity is not a party. This is distinct from the federal RFRA, which requires the government to be a party in a RFRA claim. This is an extremely important change. Often, a government action (such as a statute or regulation) will result in a burden on religious liberty, but the burdensome action comes from a private actor, not a government entity.
For example, if a nondiscrimination provision found in the Civil Rights Act or in a state employment law infringes upon an employer’s religious liberty, the parties to the lawsuit are often the religious employer and the employee claiming discrimination. If a government entity is a required party for a RFRA claim, the religious employer has no ability to argue that the action violates its rights under RFRA. Thankfully, states have caught on to this and are crafting their state RFRAs accordingly to ensure religious liberty is protected in all instances, not just when a government actor is a direct party.
Why does it matter to my organization whether my state has a RFRA?
RFRAs benefit faith-based organizations and religious freedom because these laws make it more difficult for the government to burden religious exercise. The presence or absence of a state RFRA is one of the most important religious freedom protections for a faith-based nonprofit.
What if a religious organization wants to use its current office location for a new mission to provide religious education to those it serves, but that use of the property violates the local zoning laws and the municipality refuses to approve an exception?
What if a state law passes a law banning a certain type of medical procedure used by pro-life health clinics or requiring crisis pregnancy centers to disclose information about the women they serve?
In each of these cases, the laws – whether zoning laws, laws prohibiting certain medical procedures, or laws requiring disclosure of information – appear to be neutral and do not specifically single out religious exercise. In practice, however, each of these laws substantially burdens the religious exercise of religious organizations.
In cases where religious exercise is burdened by state or local laws, there will be other defenses available – a law maybe be invalid under the Religious Land Use And Institutionalized Persons Act (RLIUPA) or the First Amendment. But often, the strongest and most direct answer to such a burden on religious exercise will be a state’s RFRA. If a zoning law or an information disclosure law burden an organization’s religious practice, RFRA is triggered and the government has to prove that the burden furthers a compelling interest and is the least restrictive way of doing so. An organization immediately raising a RFRA claim in such a situation may cause the state or municipality to back down and reconsider, or in the case of litigation may be the quickest way for a court to rule in favor of a religious organization.
Conclusion
RFRAs are an important protection for religious organizations. A RFRA can protect your organization against laws that appear to be neutral but in fact burden the practice of religion in your organization’s life and work. After reading this introduction to the importance of RFRAs, what should you do next? Consult Napa Legal’s Multistate Matrix and Faith & Freedom Index to explore the laws of the different states and see how each state ranks on RFRAs and other factors that may affect your organization.
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1 494 U.S. 872, 879 (1990).
2 For an analysis of the federal RFRA, see Stephanie H. Barclay & Mark L. Rienzi, Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions, 59 B.C.L.Rev. 1595 (2018) Available at https://lawdigitalcommons.bc.edu/bclr/vol59/iss5/3.
3 Lund, Religious Liberty after Gonzales, supra note 8 at 474 (“This reinforces a key and often overlooked point. Smith and Boerne together mean that we live today in a multiple-exemption regime. Religious observers will need to win exemptions from all the legal regimes that bind them-from federal laws, from state laws, and from local laws. They must wage battles in every political sphere simultaneously and they must win each one. If they fail anywhere, they fail completely. 5 8 For in our system of multiple sovereigns, being protected from one governmental entity offers no immunity from any other. So while the federal RFRA is necessary for the protection of religious liberty, it is not sufficient. States must also choose to accommodate religious freedom within their respective spheres.”).
4 See, for example, Utah Code Sec. 63G-31-201, a RFRA which contains both an attorneys’ fee provision and a non-government party provision.
