by Nicolas Reynolds , Ben Householder
December 13, 2021
Editor’s note: This is part of an ongoing series about key provisions that states have advanced in 2021 to defend the family and human dignity.
The free exercise of religion is fundamental to American law, having been enshrined within the First Amendment of the U.S. Constitution since 1791. As our society becomes more hostile to religion and fewer Americans identify with an organized religion, it is becoming more common for today’s courts to question the “first” freedom’s preeminent place in society. State legislators can take proactive steps to reverse and prevent further erosion of religious liberty, in part by enacting legislation that affirms this fundamental right. FRC actively supports efforts to pass Religious Freedom Restoration Acts (RFRAs), which provide state courts with the same legal balancing test that federal courts use to protect free exercise of religion.
When a state legislature passes a law restricting a constitutionally protected right, the courts will deem that law unconstitutional unless it passes the “strict scrutiny” test, which requires the state to demonstrate that the law promotes a “compelling governmental interest” and is narrowly tailored to advance that interest in the “least restrictive means” possible. However, in the 1990 case Employment Division v. Smith, the U.S. Supreme Court ruled that laws restricting religious liberty need only pass the “rational basis” test—demonstrating a “legitimate interest” and a neutral application of restrictions. By applying the lowest of the three levels of legal scrutiny, rather than the highest, the U.S. Supreme Court denied religious liberty the legal status a constitutionally protected right deserves.
Congress responded to this injustice by passing the Religious Freedom Restoration Act of 1993, which required courts to use the strict scrutiny standard in religious liberty cases. The strongly bipartisan measure passed unanimously in the House, was supported by all but three senators, and was signed by President Clinton. However, in the 1997 case City of Boerne v. Flores, the U.S. Supreme Court ruled that Congress had no power to apply this standard to state and local legislation. This Court decision made it vital for each state to pass its own RFRA.
Between 1997 and 2015, 21 states passed RFRA legislation: Alabama, Arizona, Arkansas, Connecticut, Florida, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, and Virginia. In 2015, serious resistance emerged for the first time due to fears that RFRAs would allow discrimination against individuals who identify as LGBT. Since then, 61 state RFRAs have been proposed across the nation, each requiring strict scrutiny to be applied to all laws and regulations that burden a person’s free exercise of religion. (It’s important to note that some states’ high courts apply a similar “strict scrutiny” standard due to state court precedent; depending on the politics in such a state, it may or may not be advisable to statutorily strengthen that court precedent.)
2021 has been a revolutionary year for RFRAs. Not a single RFRA was passed between 2016 and 2020, but this year has given the movement new life. Three states—Montana (S.B. 215), North Dakota (H.B. 1410), and South Dakota (S.B.124)—have already successfully enacted RFRAs. In New Hampshire, H.B.542 awaits the signature of Republican Governor Chris Sununu. Once New Hampshire’s bill is signed, the United States will be more than halfway to attaining nationwide RFRA coverage.
“The Religion … of every man,” according to James Madison (the primary author of the U.S. Constitution and the Bill of Rights), “must be left to the conviction and conscience of every man; and it is the right of every man to exercise it.” States should follow the federal government’s lead and ensure that religious liberty retains the legal status and protections that the Founders originally ascribed to it. Twenty-four states have already done their part—the remaining 26 must quickly follow in their footsteps.