​​​​Freedom-of-Religion

The First Amendment to the United States Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Based upon the criteria enunciated in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), the previous standard for determining whether a government action violated the Free Exercise Clause consisted of "a balancing test that took into account whether the challenged action imposed a substantial burden on the practice of religion, and if it did, whether it was needed to serve a compelling government interest." Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2760 (2014). But in 1990, the Supreme Court in Employment Division, Department of Human Resources of Oregon vs. Smith, 494 U.S. 872 (1990) rejected this balancing test and instead "held that, under the First Amendment, 'neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.'" 134 S.C.t at 2761 (citing City of Boerne v. Flores, 521 U.S. 507, 514, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997)).

In response to the Smith decision, in 1993 Congress enacted the Religious Freedom Restoration Act ("RFRA"). 42 U.S.C. 2000bb - 2000bb-4. RFRA provides a general rule that "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability." 42 U.S.C. 2000bb-1(a). The exception to this general rule is that the "Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person-(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. 2000bb-1(b). "RFRA did more than merely restore the balancing test used in the Sherbert line of cases; it provided even broader protection for religious liberty than was available under those decisions." 134 S.Ct. 2761 n. 3.

Congress intended RFRA to apply to both the Federal Government and the States. But in 1997 the Supreme Court invalidated RFRA as applied to the States because it determined Congress had exceeded its authority under Section 5 of the Fourteenth Amended when it attempted to enforce the First Amendment. City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). Congress responded to City of Boerne v. Flores by passing the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"). 42 U.S.C. 2000cc -- 2000cc-5. "RLUIPA amended RFRA's definition of the 'exercise of religion.'" 134 S.Ct. 2761. Indeed, through RLUIPA Congress sought to effectuate a "complete separation from First Amendment case law" by deleting "the reference to the First Amendment and [defining] the 'exercise of religion' to include 'any exercise of religion, whether or not compelled by, or central to, a system of religious belief.'" 134 S.Ct. 2761-62 (citing 2000cc-5(7)(A)). Congress also "mandated that this concept 'be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.'" 134 S.Ct. 2762 (citing 2000cc-3(g)).

In very succinct terms, Federal Government actions which may burden the free exercise of religion are evaluated under the standards set forth in RFRA. Moreover, as a result of the City of Boerne v. Flores decision, several states subsequently enacted their own RFRA-type statutes to protect the free exercise of religion. As such, in determining whether State governmental actions violate the free exercise of religion one must review applicable state law to see what protections have been enacted in the State's Constitution and statutes.

What is the current state of the law in the United States?