Religious Freedom Restoration Act

For three years after the Supreme Court handed down its decision in Employment Division, Department of Human Resources v. Smith, 494 U.S. 872 (1990), a coalition of religious and civil rights organizations labored in Congress to secure passage of a bill that would, in effect, overrule it.

At first, a number of religious groups actively opposed the proposed legislation on the ground that it would undermine their efforts to protect the lives of the unborn. The U.S. Catholic Conference and the National Right to Life Committee (NRLC) argued that the new bill, if enacted into law, would “create … a new statutory basis for pro-abortion litigation.”

Don Johnson, legislative director of the NRLC, called attention to the Religious Coalition for Abortion Rights’ long-standing claim that “religious- liberty rights and reproductive rights’ are inseparable.” Johnson maintained that the proposed bill would allow a woman to challenge any law restricting abortions on the ground that it burdened her free exercise of religion, thereby requiring the State to prove a compelling interest for the restriction. “Abortion: A Religious Right?,” Christianity Today 52-53 (June24, 1991).

The bill’s religious supporters countered that the concerns expressed were “sufficiently remote and the concrete advantages sufficiently high, that those who .support both religious freedom and the pro-life cause should support this legislation .”‘ Notwithstanding this appeal, Congressman Henry Hyde (R. Ill.), a key early sponsor of the bill dropped his support, and a number of evangelical lobby groups – including the Christian Action Council and Concerned Women for America – backed off. Id. at 53.

With the religious community divided, the House of Representatives Subcommittee on Civil and Constitutional Rights, Committee on the Judiciary, held hearings on May 13 and 14, 1992 “to shed light and to hear both sides … of this important issue.” Representative Hyde opened the hearings, announcing that he could not support the bill in its present form “based on the bill’s predictable impact on abortion law.” Hearings Before the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, House of Representatives on H.R. 2797 7 (1 02d Cong., 2d Sess. May 13 and 14, 1992).

Citing a recent ACLU challenge to Utah’s new more restrictive abortion law as a violation of a woman’s religious free exercise rights, Representative Hyde noted that the trial judge had dismissed the claim solely on the basis of the Smith rule. He, for one, was unwilling to risk the threat that the proposed bill posed to the unborn no matter what benefit it might be to religious freedom.

In the dialogue that followed the first panel of witnesses, Michael J. Kopetski (D. Or.) seized the opportunity to ask Dallin H. Oaks of the Quorum of the Twelve Apostles of the Mormon church and Robert Dugan, Jr., Director of the Office of Public Affairs, National Association of Evangelicals, where they stood on this issue:

[Are] you … saying that the free exercise of religion is so fundamental, it is so important that when you have a choice of a possible abortion-related issue … that you are [still] willing to support this piece of legislation.

Mr. HYDE. But without life there wouldn’t be any need for religious freedom. Id. at 59.

Representative Hyde’s appeal to life carried the day and the Religious Freedom Restoration Act of 1991 died in the 102d Congress.

Then, on June 29, 1992, the United States Supreme Court shocked the country when three Reagan/Bush appointees joined with Justices Harry Blackmun and John Paul Stevens to reaffirm the essential holding of Roe v. Wade. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. –, 120 L.Ed. 2d 67 (1992).

And, in November 1992, the people elected William Jefferson Clinton to the presidency. With the Court and the Presidency lined up against the pro-life cause, the pro-life opposition to the Religious Freedom Restoration Act in Congress crumbled.

Congressman Hyde dropped his opposition to the bill, claiming that his pro-life concerns had been addressed by changes in the language of the statute and in the Committee report:

Because the bill now clearly imposes a statutory standard that is to be interpreted as incorporating all “federal court cases” prior to Smith, and free exercise challenges to abortion restrictions were ultimately unsuccessful prior to Smith, we are confident that although such claims may be brought pursuant to the Act, they will be unsuccessful. H.R. Rep. No. 88, 103d Cong., 1st Sess. (May 11, 1993).

With concessions like these from the pro-life camp, the House of Representatives, on May 11, 1993, unanimously passed the Religious Freedom Restoration Act of 1993 (RFRA). On October 27, 1993, the Senate – by a vote of 97 to 3 -followed suit. On November 16, 1993, President Clinton signed RFRA into law.

Lost in the bipartisan euphoria, however, were several constitutional questions, including what right Congress has to substitute its interpretation of the Free Exercise Clause for that of the Supreme Court. Congressman Hyde had asked that question at the May 1992hearings, but he did not return to it in 1993. Contrast Hearings on H.R. 2797, supra, at 7 with H.R. Rep. No. 88, supra.

No Legislative Authority

The threshold constitutional question raised by RFRA is not whether Congress has the “power to overrule” a Supreme Court opinion. Rather, it is whether Congress has any authority at all to pass legislation to protect religious freedom.

Congress is a legislature of enumerated powers. Before it can act it must find in the written constitution a grant of power over the subject matter covered by the statute and it must state an object or purpose conferred upon Congress by that grant of power. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824 ); United States v. Darby, 312 U.S. 100 (1941).

In the alternative, if the subject matter of a statute is not one of the enumerated powers, Congress must demonstrate that the statute enacted is a “necessary and proper means” to regulate a subject matter over which Congress has power and that the purpose of the statute is within the scope of that grant of power. McCulloch v. Maryland, 17U.S. (4 Wheat.) 316 (1819); Katzenbach v. McClung, 379 U.S. 294 (1964).

According to Section 2(a) of RFRA, the subject matter of the Act is the “unalienable right” of the “free exercise of religion.” According to Section 2(b), the purpose of RFRA is to “restore” the free exercise of religion to its position before the Smith case and to provide a religious freedom claim or defense in every case where government has burdened it.

The Constitution does not confer upon Congress any power over the subjects of religious freedom or of religion generally. The First Amendment addresses the subject matter, but does not grant any power to Congress. To the contrary, the First Amendment denies to Congress any power whatsoever to pass a “law respecting .an Establishment of religion or prohibiting the Free Exercise thereof…. ”

Given this textual evidence, neither the House nor the Senate claimed that Congress had specific authority to regulate religious freedom, as such. Both claimed, however, that RFRA was an exercise of power under Section 5 of the 14th Amendment. See H.R. Rep. No. 88, 1 03d Con g., 1st Sess. (May 11 1993) and S. Rep. No. 111, 103d Cong., 1st Sess. (July 27, 1993).

Section 5 authorizes Congress to enact “appropriate legislation” to enforce the provisions of the 14th Amendment. Those provisions, in turn, prohibit certain actions by the States. Thus, in order to sustain a claim of authority under Section 5 of the 14th Amendment, Congress must demonstrate that it is protecting the Free Exercise of religion from adverse action by state governments or their political subdivisions. E.g., Katzenbach v. Morgan, 384 U.S. 641 (1966).

The text of RFRA is not so limited.

First, RFRA applies to action by the federal government as well as to action by the states. See Sections 3(a), Section 5, and Section 6. Therefore, the subject matter of RFRA is not within the grant of power contained in Section 5 of the 14th Amendment.

Second, RFRA does not state its purpose to be the protection of religious freedom from infringement by the states. Instead, it states its purpose to provide a uniform rule governing religious freedom litigation arising out of cases against both the federal and the state governments. See Section 2(a) and Section 5(1). Section 5 of the 14th Amendment grants no such power to Congress.

{A federal district judge so ruled in a recent case in Texas, although a contrary ruling had been made by a federal trial judge one month previously in Hawaii. Contrast Flores v. City of Boerne, – F. Supp. –, 63 USLW 2572, 2573, n. 1 (W.D. Tx Mar. 15, 1995) with Belgard v. Hawaii, No. 93-00961 (D. Haw. Feb. 3, 1995).}

Nor can Congress parlay the Necessary and Proper Clause of Article I, Section 8 with Section 5 of the 14th Amendment in order to justify enactment of. The Judiciary Committee of the House of Representatives, but not of the Senate, attempted to do just that:

… [T]he Committee believes that Congress has the H.R. 1308. Pursuant to Section 5 of the Fourteenth Amendment and the Necessary and Proper Clause embodied in Article I, Section 8 of the Constitution, the legislative branch has been given authority to provide statutory protection for a constitutional value when the Supreme Court has been unwilling to assert its authority. The Supreme Court has repeatedly upheld such congressional action after declining to find a constitutional protection itself. H.R. Rep. No. 88.

Not one case cited in support of this claim of power addressed a statute that imposed “a constitutional value” upon the federal government. All were addressed to denials of such constitutional norms by state law. See South Carolina v. Katzenbach, 383 U.S. 301 (1966); Oregon v. Mitchell, 400 U.S. 112 (1970); City of Rome v. United States, 446 U.S. 156 (1980); Thornburgh v. Gingles, 478 U.S. 30 (1986).

Even when Congress has acted to protect the constitutional rights of citizens apart from the actions of States, the Court has been careful to lodge that power either as necessary and proper to secure those rights from unconstitutional state action or as necessary and proper to secure a right that arises out of a power granted to the federal government. See, e.g., United States v. Guest, 383 U.S. 745 (1966). Cf Oregon v. Mitchell, supra.

Therefore, the Necessary and Proper Clause coupled with Section 5 of the 14th Amendment cannot support RFRA’s comprehensive coverage of both state and federal infringements upon the Free Exercise of religion.

The only possible power that Congress could claim to impose a uniform rule of Free Exercise on both the state and national governments is its authority over the federal courts. The Necessary and Proper Clause refers not only to powers expressly granted to Congress, but also to powers granted to other departments of the federal government, including the judiciary. The power of Congress over the judiciary, however, is carefully circumscribed by Article m. Section 1 vests the judicial power of the United States in one Supreme Court and in whatever lower federal courts that Congress from time to time creates. Section 2 confers judicial power on certain kinds of cases, mandating that such judicial power extend to all cases arising under the Constitution.

By its terms, Article ill limits Congressional authority to the creation of lower federal courts and to the allocation of jurisdiction within the federal court system.

On its face, RFRA does not purport to be a regulation of federal court jurisdiction. Rather, it contains a substantive rule defining the meaning of Free Exercise of religion as provided for in the First Amendment. (Sections 2 and 3.) The Senate Judiciary Committee Report contains ample evidence that RFRA was not contemplated as a limit on the jurisdiction of the federal courts.

First, the Report observed:

… [T]he right to observe one’s faith, free from Government interference, is among the most treasured birthrights of every American. That right is enshrined in the free exercise clause of the first amendment .... This fundamental right may be undermined not only by Government actions singling out religious activities for special burdens, but by governmental rules of general applicability which operate to place substantial burdens on individuals’ ability to practice their faiths. Sen R. No. 111, 103d Cong., 1st Sess.

Second, the Report claimed that throughout history the courts failed to protect this view of religious freedom until 30 years ago “with the Supreme Court’s landmark decision in Sherbert v. Verner.”

But, the Report continued, that protection has been removed when the Court in Smith abandoned the compelling state interest test of the Sherbert case.

So, the Report concluded, in order to implement its view of religious freedom, the Senate is enacting RFRA, utilizing the compelling state interest test as the defining substantive rule of free exercise of religion.

Instead of limiting jurisdiction of the federal courts in Free Exercise cases, Congress has commanded the courts to apply RFRA as the substantive rule of law in those cases. Section 3©. Not only does the Constitution not authorize Congress to act in this manner, it explicitly forbids it.

Usurpation of Judicial Power

Article III, Section 1 of the Constitution vests the “judicial power of the United States … in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish.”Article III, Section 2 extends this judicial power to “all cases … arising under this Constitution” and provides that “the Supreme Court shall have appellate jurisdiction, both as to law and fact” over such cases “with such exceptions, and under such regulations, as the Congress shall make.”

What is most remarkable about RFRA is the naked claim that Congress has supervisory jurisdiction over the Supreme Court. Congressman Henry Hyde and six of his House Judiciary colleagues expressed the claim most bluntly:

The purpose of H.R. 1308 is to overturn the 1990 decision of the United States Supreme Court in Oregon Employment Services Division v. Smith, 494 U.S. 872. H.R. Rep. No. 88.

Senator Alan Simpson agreed:

S. 578 is intended to overturn Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) and O’Lone v. Estate of Shabazz, 478 U.S. 342 (1987). All claims in federal and state courts decided pursuant to these two bills [sic] can be relitigated and some will succeed under the bill’s standard which favors the claimant. S. Rep. No. 111.

The Senate Report reads like an appellate opinion. It conducts a review of Justice Scalia’s majority opinion and Justice O’Connor’s concurring opinion in Smith. It then examines Justice Souter’s concurring opinion on Smith in the Hialeah case. Finally, it concludes that the Smith case was wrongly decided and that the true rule of Free Exercise of religion is that found in the compelling state interest test as applied by the Court before Smith. Having adopted that test, the Report instructs the courts that they must follow Congress’s ruling, not the Supreme Court’s in Smith.

The House behaved in like manner, being careful to advise the courts that “the purpose of this Act is to overcome the effects of the Supreme Court’s decision in Smith” and not to overrule cases decided under the Establishment Clause. H.R. Rep. No. 88.

None of this would be constitutionally objectionable if Congress were amending a statute in order to reverse an erroneous interpretation of that law. But here Congress is revising a court opinion which it perceives to be an erroneous interpretation of the Constitution and imposing that revised interpretation upon the courts.

Since 1803, it has been settled that “it is … the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). It is not the province of Congress to say what the law is, but only to “prescribe … rules by which the duties and rights of every citizen are to be regulated.” Federalist No. 78 It is for the judiciary, not the legislature, to interpret and apply the rule.

Relying on both the legislative history and upon the Marbury case, a federal district judge has held that RFRA is an unconstitutional exercise of judicial power. Flores v. Boerne, supra. And rightfully so

With the passage of RFRA, Congress did not purport to have enacted a rule of law. Rather, it simply claimed that its interpretation of the Free Exercise Clause was superior to that of the Supreme Court’s. Yet, the Senate Report conceded that Congress had no power to interpret and apply that clause or on any other provision of the Bill of Rights:

As the Supreme Court said: The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. S. Rep. No. 111.

By the very passage of RFRA, Congress has contradicted itself. How can the legal principles of the Bill of Rights be insulated from “the vicissitudes of political controversy” if Congress has the final authority to define those principles?

The answer is unmistakably clear. If Congress can define Free Exercise of religion in an “expansive” way, as it claims to have done in RFRA, then it can define Free Exercise in a miserly way should it be dissatisfied with RFRA’s results or if the political climate becomes more hostile to religious dissenters.

Even the Senate recognized that its effort in RFRA put it on a collision course with the essential purpose of the Bill of Rights:

One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. S. Rep. No. 111.

America’s founders embraced this principle when it established an independent judiciary, separated from the legislative and executive powers. Alexander Hamilton, writing in defense of this constitutional separation, quoted the great Montesquieu:

[T]here is no liberty, if the power of judging be not separated from the legislative and executive powers. Federalist No. 78.

Hamilton took this point a step further, claiming that there is no government of laws, if “the legislative body are themselves the constitutional judges of their own powers:”

[T]he courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning …. Federalist No. 78.

The very purpose of a written constitution, wrote Chief Justice John Marshall in Marbury v. Madison, supra, was to create a “superior paramount law, unchangeable by ordinary means.” If Congress has the authority to determine what that superior paramount law means, then it can by defining that law do whatever it chooses. How can a written constitution limit the power of a legislature if that body has authority to decide for itself what those limits are? The answer is that no legislative body may say what the law of the constitution is, that is the province of the judiciary.

This does not mean that Congress has no power when it disagrees with a judicial application of a constitutional norm. It may, for example, make factual findings demonstrating that the factual picture before the courts was not a complete or accurate one, justifying a legislative remedy that goes beyond what the courts might have ordered to enforce that same constitutional norm. E.g., Oregon v. Mitchell, supra.

The House Judiciary Committee tried its best to slip RFRA into this category of cases when it stated in its report that all RFRA did was “to provide statutory protection for a constitutional value when the Supreme Court has been unwilling to assert its authority.” H.R. Rep. No. 88.

But the Court’s refusal in Smith to apply the compelling state interest test was not based upon a lack of judicial will to enforce the full scope of the Free Exercise Clause. Nor was it based upon an incomplete or inadequate factual picture. To the contrary, the Court in Smith rejected the compelling state interest test as incompatible with the substantive Free Exercise guarantee.

Both the Senate and the House adopted RFRA in order to repudiate the constitutional norm in Smith. Some may argue that such a repudiation is within the power of Congress, if the legislative repudiation enhances the people’s constitutional rights. Such a position has found some support on the Court, but only in relation to the special role granted to Congress to enforce the Civil Rights Amendments. See, e.g., Katzenbach v. Morgan, supra.

As noted previously, RFRA cannot be justified as such an exercise of power, because the object of the legislation is not limited to the actions of the States and their political subdivisions. Moreover, upon closer examination RFRA does not enhance Free Exercise rights, but diminishes them.

The First Amendment absolutely protects the free exercise of religion from any law that prohibits it. In contrast, RFRA subordinates the free exercise of religion to any law which the government “demonstrates” to be “in furtherance of a compelling governmental interest” so long as it is “the least restrictive means of furthering that compelling governmental interest.” Section 3.

RFRA Guarantees Toleration, Not Free Exercise

In Section 2(a) of the Religious Freedom Restoration Act of 1993 (RFRA), Congress found that “the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution.” (Emphasis added.)

By definition, an unalienable right is one that cannot be given or taken away. If the free exercise of religion is an unalienable right, then it cannot be prohibited no matter how strong the civil society’s interest.

That was the opinion of James Madison, one of the chief architects of the First Amendment. In 1785, Madison wrote:

We maintain … that in matters of Religion, no man’s right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance Memorial and Remonstrance Against Religious Assessments (1785). (emphasis added.)

Accordingly, the First Amendment reads simply that “Congress shall make no law … prohibiting the free exercise … [ of religion].” The text allows for no exceptions, no matter how compelling and no matter how limited.

Congress has not followed this text in RFRA. After having found that the free exercise of religion is an unalienable right, it then found that there can be good reasons for alienating it:

[G]overnments should not burden religious exercise without compelling justification …. [T]he compelling interest test … is a workable test for striking sensible balances between religious liberty and competing prior governmental interests. Section 2(a)(3) and (5). (Emphasis added.)

Such findings are directly antithetical to the legal and political philosophy undergirding the First Amendment. That Amendment lays down a categorical rule of immunity based upon the legal and political presupposition that one’s duties to God are prior to one’s civil duties, not the other way around.

Again, James Madison got it right when he wrote:

“[T]hat Religion or the duty we owe to our Creator” … is precedent both in order of time and degree of obligation, to the claims of Civil Society. Before any man can be considered a member of Civil Society, he must be considered as a subject of the Governor of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the general authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving allegiance to the Universal Sovereign. Memorial and Remonstrance, supra.

It was Madison’s view of the relation between God and man, and man and civil society, that informed the First Amendment. And that view was presented to the House Subcommittee on Civil and Constitutional Rights in its hearings on RFRA’ s predecessor, only to be rejected by Congress.

Relying on Madison, and upon the Virginia legacy of both Madison and Jefferson, members of the Subcommittee received both written and oral testimony on the unalienability of the right to free exercise of religion:

No government interest, no matter how compelling it may be, is sufficient to justify a burden upon a person’s free exercise of religion. One’s duties to God are defined by the Creator, not by the State, and, if enforceable, only by reason and conviction as prescribed by the Creator, … such duties are unalienable rights toward men. If they are to remain unalienable, they must be completely and absolutely free from any government regulation, no matter how compelling the interest or necessary the regulation. Hearings Before the Subcommittee on Civil and Constitutional Rights of the Committee of the Judiciary, House of Representatives, on H.R. 2797 89 (102d Cong., 2d Sess., May 13-14, 1991).

This testimony, however, was hotly contested. Nadine Strossen, President of the National Board of Directors of the American Civil Liberties Union, attempted to belittle it;

Ms. STROSSEN. … As I understand the testimony … I gather that Dean Titus supports absolute freedom for a very narrow definition of religious activity – namely, belief -but when it gets to practice, he believes in the … nonprotection that the Supreme Court has mandated in the Scalia opinion in the 1 Smith case ….

Mr. TITUS. Well, it is absolutely crucial, because I did not say that religion was confined to merely belief … And I think it is unfair to the witness to mischaracterize my remarks in response to a question that you directed to me. Id. at 96.

Congressman Craig A. Washington (D-Tx) made a valiant attempt to discredit the proposition that religion was an objective term defined by the Creator. Characterizing Smith as just another example of white European males’ imposing their religion on a native people “here long before Columbus,” Mr. Washington insisted that religion was a subjective term defined by each individual for himself. He asked the witness for agreement on that point:

Mr. TITUS. No, I do not agree with that.

Mr. TITUS. No. I quoted to you from the Constitution of Virginia and I think that every legal scholar will indicate to you … that the first amendment rests upon the Virginia legacy. I d. at 97.

Congressman Henry Hyde (R-11) later gave the witness an opportunity to explain the constitutional significance and difference between a First Amendment based upon the Creator’s definition of religion not man’s:

Mr. HYDE. Dean Titus, what about LSD – the League for Spiritual Development? Timothy Leary -…. Don’t you think that there was a compelling state interest in prosecuting him for the proliferation of a hallucinogenic drug under the guise of religion?

[W]hat is important is to recognize the question whether or not that is a duty owed to your Creator enforceable only by reason and conviction as contrasted to force or violence, or whether that is a matter of subjective religious conscience. The American tradition constitutionally has been to protect those objective duties owed to the Creator by reason and conviction …. Id. at 101-02.

But this effort came to nought as the ACLU’s Strossen, and others like her, prevailed with their view that religion was a subjective term defined by each individual for himself. Strossen claimed that such a definition was necessary to give everyone’s religion the same protection under the First Amendment. Id. at 104-05.

Recognizing that her egalitarian notions would lead to a state of anarchy, Strossen conceded that the First Amendment – although containing “absolutist language” – could not “ever be interpreted literally as being an absolute protection for religious freedom.” Hence, she opted for the compelling state interest test as a necessary compromise for the good of an “orderly society.” Id. at 103.

This political compromise found its way into RFRA two years later. Section 3 allows the government to burden a person’s exercise of religion if the government “demonstrates that application of the burden … is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest.”