President Clinton Signing the RFRA

It was on this date, November 16, 1993, that the U.S. Congress passed the Religious Freedom Restoration Act (Pub. L. No. 103-141, 107 Stat. 1488). RFRA, as it is called, was introduced in March 1993 and was aimed at preventing laws that substantially burden a person's free exercise of their religion. Although invalidated at the state level by a Supreme Court decision in 1997 (City of Boerne v. Flores), at the federal level the law reinstated the Sherbert Test, mandating that in determining if the Free Exercise Clause of the First Amendment to the United States Constitution has been violated, strict scrutiny must be applied. The assumption behind the Act is that religious freedom somehow needs to be restored – in a society in which presidents routinely hold prayer breakfasts and declare a National Day of Prayer, in which Congress has a taxpayer-paid chaplain, in which “In God We Trust” is on all its currency, in which you can’t swing a dead cat without hitting a church, in which workers have no trouble getting time off for religious holidays, in which churches routinely pay no taxes and in which laws favoring solely religious opinion (such as those restricting abortion, contraception and same-sex marriage, as well as the teaching of evolution theory in public schools)!

Basically, RFRA is used to try to beat back advancing secularization of laws and government functions in society by casting disputes as Free Exercise violations to counter Establishment of Religion violations. Some examples: RFRA is being used to reinstate Section 3 of the 1996 Defense of Marriage Act (DOMA), declared unconstitutional by the US Supreme Court (essentially allowing same-sex couples who are legally married in their own states to receive federal benefits); RFRA is being used to allow employers to escape the contraception mandate under the Affordable Care Act (ObamaCare), even if contraception does not violate the conscience of the employee who is earning the benefit. RFRA could even be used to allow employers to ignore child labor laws, or to refuse to hire married women, or to fire gay employees – simply because these things may violate their religion-based beliefs. Worse, RFRA could be used to “inoculate” parents who deny medical treatment to their children on religious grounds – in some cases actually causing death. The Religious Freedom Restoration Act is worse than a solution in search of a problem: RFRA creates problems of its own.