THE RELIGIOUS FREEDOM RESTORATION ACT: ITS RISE, FALL, AND CURRENT STATUS
CRS Report for Congress
The Religious Freedom Restoration Act:
Its Rise, Fall, and Current Status
David M. Ackerman
American Law Division
In City of Boerne, Texas v. Flores the Supreme Court on June 25, 1997, held the1
"Religious Freedom Restoration Act" (RFRA) to be unconstitutional as applied to the
states. Congress enacted RFRA in 1993 in response to an earlier Supreme Court
decision — Employment Division, Oregon Department of Human Resources v. Smith2
— which had construed the free exercise clause of the First Amendment to prohibit only
government action which intentionally burdens the exercise of religion. In RFRA
Congress sought to broaden the legal protection afforded religious exercise by
prohibiting government action that has the effect of substantially burdening religious
practice as well. But in Boerne the Court held that Congress lacks the power under §
The Clinton Administration maintains that RFRA continues to be valid for the
federal government, and at least one federal appellate court has sustained that position.
In addition, in the 105 Congress bills were introduced in both the House and the Senateth
to re-apply RFRA's standards to the states using Congress' interstate commerce and
spending clause powers (S. 2148, H.R. 4019). A subcommittee of the House Judiciary
Committee ordered a modified version of H.R. 4019 reported to the full committee; but
further consideration fell victim to the Committee's impeachment inquiry.
This report briefly summarizes Smith, the legislative history of RFRA, the decision
in Boerne, RFRA’s current legal status, and Congressional efforts to respond to Boerne.
Legislative and Political History
The Smith Decision. As noted, the genesis of RFRA lay in the Supreme Court’s
decision in Employment Division, Oregon Department of Human Resources v. Smith,
supra. In that case, decided in 1990, the Court narrowed the scope of the free exercise
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clause of the First Amendment, which provides that "Congress shall make no law ...
prohibiting the free exercise (of religion)." The specific issue before the Court in Smith3
was whether two Native Americans who had been fired from their jobs as drug counselors
after they were discovered to have ingested peyote in a ritual of the Native American
Church were eligible for state unemployment benefits. That issue the Court resolved in
the negative, 6-3. But in the process of reaching that conclusion the Court also altered the
standard of review generally used for free exercise cases, 5-4.
For the prior quarter of a century the Court had generally applied a strict scrutiny
test to government action alleged to burden the exercise of religion. That test required
the government to show that an action burdening religion served a compelling public
interest and that no less burdensome course of action was feasible. If the government
could not so demonstrate, the test required that the religious practice be exempted from
the government regulation or prohibition at issue.
In Smith the Court abandoned the strict scrutiny test (except in a few narrow
categories). It held that religiously neutral laws may be uniformly applied to all persons
without regard to any burden or prohibition placed on their exercise of religion. The free
exercise clause, the Court said, never "relieves an individual of the obligation to comply
with a `valid and neutral law of general applicability’ on the ground the law proscribes (or
prescribes) conduct that his religion prescribes (or proscribes).’" In the case at hand, that
new standard meant that the free exercise clause mandated no religious exemption from
Oregon’s drug laws for Native American use of peyote in a sacramental ceremony and,
consequently, no eligibility for unemployment benefits of two Native Americans who lost
their jobs because of their participation in such a ceremony. More generally, the Court
asserted that the question of whether religious practices ought to be accommodated by
government was a matter to be resolved by the political process and not by the courts,
although it admitted that "leaving accommodation to the political process will place at a
relative disadvantage those religious practices that are not widely engaged in ...."
The Congressional Response. The specific result in Smith was upsetting to some.4
But it was the Court’s virtual abandonment of strict scrutiny and relegation of free
exercise concerns to the political process that generated widespread alarm in the religious
community and elsewhere. That alarm quickly coalesced into a broad-based organization
known as the Coalition for the Free Exercise of Religion. Its efforts quickly resulted in
the introduction by bipartisan sponsors in both the House and the Senate of a proposed
"Religious Freedom Restoration Act of 1990" (H.R. 5377, S. 3254) and, 3 years later, of
the enactment of a modified version of RFRA into law.5
The free exercise clause has been held applicable not only to actions by the federal3
government but also to actions by state and local government. See Cantwell v. Connecticut, 310
U.S. 296 (1940).
Congress in 1994 made the religious use of peyote by members of the Native American4
Church legal under federal law. See P.L. 103-344 (Oct. 6, 1994); 42 U.S.C.A. 1996a. Oregon,
similarly, decriminalized the religious use of peyote after Smith. See Ore. Rev. Stat. 475.992(5)
P.L. 103-141 (Nov. 16, 1993); 42 U.S.C.A. 2000bb et seq.5
None of the versions of RFRA considered by Congress addressed any specific free
exercise concern. Rather, the intent was to restore the strict scrutiny test as the general
standard governing the interaction of government and religious exercise. Because a
constitutional amendment would have been required to do that for the judicial
interpretation of the First Amendment, RFRA was crafted to impose the strict scrutiny test
as a statutory standard. As enacted, RFRA provided that a statute or regulation of
general applicability can lawfully burden a person’s free exercise of religion only if it can
be shown to be "essential to further a compelling governmental interest and (to be) the
least restrictive means of furthering that compelling governmental interest." RFRA made
the standard applicable to governmental action at every level — federal, state, and local
— and allowed aggrieved parties to bring suit if they believed their exercise of religion
had been restricted by government in violation of the statutory standard.
As noted, it took 3 years to enact RFRA. In 1990 hearings were held on the House6
bill (H.R. 5377) by a subcommittee of the House Judiciary Committee, but no further
action was taken before the 101st Congress adjourned. In the 102d Congress RFRA was
re-introduced in slightly modified form (H.R. 2797, S. 2969), hearings were held in both
the House and the Senate, and the measure was reported late in the second session by the789
House Judiciary Committee. But disputes over the measure remained, and the 102d
Congress adjourned soon thereafter without any further action.
In the 103d Congress RFRA was again introduced in slightly modified form (H.R.
President Clinton, unlike President Bush, came to office an avowed supporter of RFRA.10
The Supreme Court had had the opportunity to overturn Roe v. Wade but had chosen not
See Religious Freedom Restoration Act of 1990: Hearing Before the Subcommittee on Civil6st
and Constitutional Rights of the House Committee on the Judiciary, 101 Cong., 2d Sess.
(September 27, 1990).
See Religious Freedom Restoration Act of 1991 and the Religious Freedom Act: Hearing7
on H.R. 2797 and H.R. 4040 Before the Subcommittee on Civil and Constitutional Rights of the
House Committee on the Judiciary, 102d Cong., 2d Sess. (May 13, 1992) and Religious Freedom
Restoration Act of 1992: Hearing Before the Senate Judiciary Committee, 102d Cong., 2d Sess.
(September 18, 1992) (unprinted).
See 138 CONG. REC. D1261 (Oct. 1, 1992) (daily ed.).8
During the 102d Congress several concerns were raised about RFRA by the National Right9
to Life Committee and the U.S. Catholic Conference — that it might make it possible for women
to seek exemptions from restrictive anti-abortion statutes and to obtain abortions on religious
grounds, that it might allow challenges to the tax-exempt status of church organizations, and that
it might endanger public grants to church-related programs and institutions. Reflecting these
concerns, a competing measure was introduced (H.R. 4040) which embodied the same strict
scrutiny standard as H.R. 2797 but excluded three areas from the possibility of suit under the bill
(1) "the tax status of any person," (2) "the use or disposition of government funds or property
derived from or obtained with tax revenues," and (3) "any limitation or restriction on abortion,
on access to abortion services or on abortion funding."
to do so. The Coalition for the Free Exercise of Religion had continued to expand.1112
Most important, perhaps, earlier objections to the bill by the U.S. Catholic Conference
and the right-to-life community had been resolved. As a result, H.R. 1308 was reported13
without dissent by the House Judiciary Committee and adopted by the House May 11,14
In the Senate, however, a new issue arose — whether prisons ought to be exempted
from the bill. Twenty-two state attorneys general as well as the prison administrators of
all 50 states argued for such an exemption in letters to the Senate Judiciary Committee,
but the Committee chose not to add the exemption. Its report recommending adoption of
RFRA stated simply that "the committee expects that the courts will continue the tradition
of giving due deference to the experience and expertise of prison administrators" and that
the strict scrutiny standard "will not place undue burdens on prison administrators."16
Nonetheless, Sen. Reid (D.-Nev.) offered a prison exemption amendment on the Senate
floor. After vigorous debate the amendment was defeated, 41-58. The bill was then17
approved, 97-3. One week later, on November 3, 1993, the House, by voice vote,18
accepted the Senate version of RFRA rather than go to conference. President Clinton19
signed the measure into law on November 16, 1993.
City of Boerne, Texas v. Flores
In City of Boerne, Texas v. Flores, supra the Supreme Court on June 25, 1997, held
RFRA to be unconstitutional as applied to the states, 6-3. The Court said that as applied
to the states RFRA exceeded Congress’ power under section 5 of the 14th Amendment.20
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).11
The Coalition eventually comprised 67 organizations ranging across the political and12
religious spectrum. Its breadth is shown by its inclusion of such ordinarily disparate groups as
the People for the American Way and the Traditional Values Coalition.
The operative language of the bill had been slightly modified, a new section making clear13
that the bill had no application to issues of public funding for religious institutions or questions
of tax exemption had been added, and the section on standing to sue had been clarified. As a
result, the U.S. Catholic Conference withdrew its objections, although it never formally joined
the Coalition for Free Exercise.
See H.Rept. 103-88, 103d Cong., 1 Sess. (May 11, 1993).14st
See 139 CONG. REC. H2356 - H2363 (daily ed. May 11, 1993).15
See S.Rept. 103-111, 103d Cong., 1 Sess. (1993).16st
The Fourteenth Amendment, inter alia, bars the states from depriving "any person of life,20
liberty, or property, without due process of law." "Liberty" includes religious liberty. Section
5 provides that "[t]he Congress shall have power to enforce, by appropriate legislation, the
provisions of this article."
The case arose because of a conflict between a local Catholic church and the city of
Boerne’s historic preservation ordinance. St. Peter the Apostle Catholic Church wanted
to raze much of its existing structure and build a larger sanctuary in order to accommodate
its rapidly growing congregation; but the city refused it permission to do so because, it
said, the Mission Revival architecture of the church made it an historic structure that
needed to be preserved. Archbishop Flores sued on behalf of the church, arguing in part
that the city’s denial of a building permit violated RFRA. The city responded by
contending that RFRA was unconstitutional.
The Supreme Court agreed with the city, holding that as applied to the states RFRA
"exceeds Congress’ power." Justice Kennedy, writing for the majority, agreed that under
§ 5 of the 14th Amendment Congress has the power to enforce its provisions; but, he said,
that power is limited. Congress can not in the guise of enforcement, he stated, adopt
legislation that "alters the meaning" or the substance of the rights protected by the
The design of the Amendment and the text of § 5 are inconsistent with the suggestion
that Congress has the power to decree the substance of the Fourteenth Amendment’s
restrictions on the states. Legislation which alters the meaning of the Free Exercise
Clause cannot be said to be enforcing the Clause. Congress does not enforce a
constitutional right by changing what the right is.
Both the legislative history of the Amendment and most of the judicial decisions
interpreting its provisions, Justice Kennedy asserted, made Congress’ lack of power to
define the rights protected by the Amendment clear. Moreover, he elaborated, in
Congress’ exercise of its remedial power under § 5, there must "be a congruence and
proportionality between the injury to be prevented or remedied and the means adopted to
that end." But here, he said, Congress had failed to develop a legislative record showing
extensive denials of religious liberty; yet RFRA intruded "at every level of government,
displacing laws and prohibiting official actions of almost every description and regardless
of subject matter." Particularly with respect to the states, he asserted, RFRA constituted
"a considerable congressional intrusion into the States’ traditional prerogatives and
general authority to regulate for the health and welfare of their citizens." As a
consequence, he concluded, RFRA "reflects a lack of proportionality or congruence
between the means adopted and the legitimate end to be achieved ... and contradicts vital
principles necessary to maintain separation of powers and the federal balance."
Because of the Boerne decision, states and localities are no longer bound by RFRA.
But RFRA may still be valid with respect to the federal government, because for that
application Congress did not rely on § 5 of the 14th Amendment but on its substantive
powers under Article I and the "necessary and proper" clause. The Clinton21
Administration has argued in support of RFRA's constitutionality as applied to the federal
government, and to date at least one federal appellate court has agreed. On April 13,
Article I, § 8, provides: "The Congress shall have Power ... To make all Laws which shall21
be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers
vested by this Constitution in the Government of the United States, or in any Department or
Crystal Evangelical Free Church, that RFRA is a valid exercise of Congress' power22
under the necessary and proper clause and, in the circumstances of the case, its plenary
power over bankruptcy. The case was believed to be a promising vehicle for Supreme23
Court review of the matter, but an amendment of the bankruptcy code by Congress in the
summer of 1998 caused the Court not to review the decision.24
Meanwhile, St. Peter the Apostle Catholic Church and the city of Boerne have
worked out an accommodation in lieu of pursuing further litigation. The church will build
a structure adding 850 seats to its sanctuary which will retain 80% of the original facade.
Finally, on June 9, 1998, Senators Hatch and Kennedy and Representatives Canady
and Nadler introduced the "Religious Liberty Protection Act" (RLPA) (S. 2148, H.R.
4019). RLPA would re-impose strict scrutiny on state burdens on religious practice under
Congress' powers over interstate commerce and federal spending and would as well limit
state and local land use decisions that adversely impact religious institutions. Hearings
were held on the proposal; and on August 6, 1998, a subcommittee of the House25
Judiciary Committee ordered a more limited version of H.R. 4019 reported to the full
committee. The Committee scheduled a mark-up on the bill for September 10, but26
further consideration of the measure in the 105 Congress fell victim to the Starr reportth
and the Committee's impeachment inquiry. The measure has not as yet been re-
introduced in the 106 Congress.th
No. 93-2267 (8 Cir. April 13, 1998), cert. denied , 67 U.S.L.W 3229 (Oct. 5, 1998) (No.22th
97-1744). The appellate court had previously held RFRA to be constitutional and to bar a trustee
from voiding debtors' tithes to their church as avoidable transfers under § 548(a)(2) of the
Bankruptcy Code, but the Supreme Court had vacated and remanded that decision for
reconsideration in light of Boerne. See Christians v. Crystal Evangelical Free Church, 82 F.3dth
1407 (8 Cir. 1996), judgment vacated and case remanded for further consideration in light of
City of Boerne, Texas v. Flores, 117 S.Ct. 2157 (1997).
The facts of the case involved an effort by a trustee in bankruptcy to recapture a couple's23
good faith tithes to a church made in the year prior to declaring bankruptcy. The court held that
RFRA in effect amended the Bankruptcy Code and that a recapture of their tithes would place
a substantial burden on their religious practice without compelling justification. As a
consequence, it held RFRA to bar the recapture, to be a valid exercise of Congress' Article I
powers, and not to violate the establishment clause of the First Amendment. A dissenting judge
contended that Boerne implied that even as applied to the federal government, RFRA violates the
separation of powers doctrine by imposing on the courts a standard of review for a constitutional
right beyond what the Supreme Court has held the Constitution to require.
On June 19, 1998, President Clinton signed the "Religious Liberty and Charitable24
Protection Act" into law (P.L. 105-183). The Act amended the bankruptcy code (11 U.S.C.A.
Hearings on H.R. 4019 Before the Subcommittee on the Constitution of the House25th
Judiciary Committee, 105 Cong., 2d Sess. (June 16 and July 14, 1998) (unprinted) and Hearingth
on S. 2148 Before the Senate Judiciary Committee, 105 Cong., 2d Sess. (June 23, 1998)
For a fuller discussion of RLPA, see The Religious Liberty Protection Act (September 1,26