The law that changed religious freedom forever
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On a sunny day in November 1993, President Bill Clinton walked onto the South Lawn of the White House to sign a piece of legislation he saw as nothing short of miraculous.
The bill, called the Religious Freedom Restoration Act, had come together through the combined efforts of Democrats and Republicans, evangelicals and Muslims, The Church of Jesus Christ of Latter-day Saints and the ACLU, and many, many other groups willing to put aside their political and religious differences to strengthen legal protections for people of faith.
It had been shepherded through the Senate by two legendary leaders of their respective parties: Democratic Sen. Ted Kennedy of Massachusetts and Republican Sen. Orrin Hatch of Utah.
As Clinton prepared to sign the bill into law, he spoke about how it carried forward the Founders’ dream of building a pluralistic nation, a place in which religious communities had the right to live according to their beliefs and an important role to play in safeguarding democracy.
“Usually the signing of legislation by a president is a ministerial act, often a quiet ending to a turbulent legislative process. Today, this event assumes a more majestic quality because of our ability together to affirm the historic role that people of faith have played in the history of this country and the constitutional protections those who profess and express their faith have always demanded and cherished,” he said.
In the 30 years since Clinton spoke those words on Nov. 16, 1993, the Religious Freedom Restoration Act has done what its diverse array of supporters hoped it would do. It’s enabled people of faith, including members of minority religions, to challenge policies that interfered with their religious practices and, in many cases, to win.
But in other ways, the law has become something its more liberal supporters, at least, did not bargain for. In recent years, the Religious Freedom Restoration Act has been cited repeatedly in culture war battles, including high-profile clashes over birth control and gay rights.
That explains why, on the act’s 30th anniversary, the public conversation around it is less about all that it’s made possible and more about whether it needs to change. There are multiple bills in front of Congress that would limit the scope of the Religious Freedom Restoration Act, which stem from some people’s belief that it’s begun to cause harm.
But if these efforts to reform the law succeed, many people of faith will find it harder to run schools, open businesses, lead charities and do any number of other activities that benefit the common good. The coalition behind the Religious Freedom Restoration Act never promised uncontroversial results; it focused on keeping religious communities active in the public square.
By the mid-1990s, today’s conflicts were already taking shape on the horizon and complicating a wide variety of faith-related work. The Religious Freedom Restoration Act got in just under the wire, when bipartisan, interfaith cooperation on religion laws was rare, but not out of reach.
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The Supreme Court’s Smith decision
The story of the Religious Freedom Restoration Act, at least the abridged version, begins 31⁄2 years before it was passed, in April 1990. That’s when the Supreme Court handed down its decision in a case called Employment Division v. Smith, which significantly weakened the First Amendment’s free exercise clause.
In the case, the court was asked to consider whether Native Americans who used peyote during religious ceremonies should be exempted from employment laws prohibiting the use of illegal drugs. In similar free exercise lawsuits in the past, judges had undertaken a balancing test to determine whether the government’s interest in upholding the challenged policy outweighed a religious individual’s or group’s right to avoid state interference.
In his surprising opinion for the majority, Justice Antonin Scalia wrote that the so-called “compelling interest test” invited “anarchy” by giving people of faith, as well as judges, too much power to change laws. He said that government officials had broad authority to craft generally applicable, religiously neutral policies and then to enforce those policies, even when faith groups complained about the incidental results.
Employment Division v. Smith created a big problem for religious communities, since most free exercise cases centered on exactly the kind of laws that the government could now more easily defend, said Greg Baylor, senior counsel for the Alliance Defending Freedom, during an Oct. 3 symposium on the Religious Freedom Restoration Act hosted by the Religious Freedom Institute in Washington, D.C.
“It’s very difficult to win a case when the only hurdle that the government has to get over is establishing that there’s a rational basis” for the challenged policy, Baylor said.
In the 31⁄2 years between the Smith decision and the Religious Freedom Restoration Act, religious groups and individuals lost more than 50 free exercise cases, Clinton noted during the signing ceremony.
“The power to reverse by legislation a decision of the United States Supreme Court is a power that is rightly hesitantly and infrequently exercised by the United States Congress. But this is an issue in which that extraordinary measure was clearly called for,” he said.
Passing the Religious Freedom Restoration Act
When the Supreme Court hands down an unpopular decision, opponents of the ruling have a few options, Baylor said.
They can patiently wait for the Supreme Court to revisit the issue at hand and (hopefully) reverse itself. They can advocate for a constitutional amendment. Or they can circumvent the decision with a new law.
In the summer of 1990, politicians, people of faith and civil rights activists rallied together around option three. About two months after the Smith decision, Congress was already considering a bill that would restore the compelling interest test.
“There was a remarkable coalition that coalesced quickly,” Baylor said.
Unfortunately for the Coalition for the Free Exercise of Religion, as supporters of the Religious Freedom Restoration Act came to be called, their efforts faced significant opposition from the U.S. Conference of Catholic Bishops, the National Right to Life Committee and other abortion opponents. These groups wanted a guarantee that the bill couldn’t one day be used to restore abortion rights if Roe v. Wade was overturned.
“They wanted a total carveout for any kind of abortion claim,” said Doug Laycock, a professor of law emeritus at the University of Virginia who testified in support of the Religious Freedom Restoration Act as it worked its way through Congress.
That may sound like a straightforward request, but the coalition wouldn’t budge. Members shared the sense that allowing for such an exemption would open a can of worms.
“Once they allowed one exception, they’d have to offer a boatload” to get it passed, Laycock said.
The bill’s supporters didn’t have to test that theory because abortion-related opposition to the Religious Freedom Restoration Act resolved itself in a different way.
In June 1992, the Supreme Court passed up a chance to overturn Roe v. Wade in a case called Planned Parenthood v. Casey. Then, in November, President George H.W. Bush lost his reelection bid to Clinton.
“Right to Life groups knew they weren’t going to get a fifth vote (against abortion) on the court anytime soon,” Laycock said.
And so abortion opponents agreed to allow the Religious Freedom Restoration Act to move forward, which it did under the guidance of now-familiar elected officials, like Senate Majority Leader Chuck Schumer, who was then in the House, and former Sens. Kennedy and Hatch.
The bill ultimately passed the U.S. House of Representatives unanimously on a voice vote. In the Senate, it passed 97-3.
The First Presidency of The Church of Jesus Christ of Latter-day Saints were among the hundreds of faith leaders to issue statements celebrating lawmakers’ work, and Elder M. Russell Ballard of the church’s Quorum of the Twelve Apostles was present at the signing ceremony, along with Hatch.
Avoiding anarchy, but not controversy
By passing the Religious Freedom Restoration Act, Congress created the conditions under which Scalia’s “anarchy” theory could be tested, according to Mark Rienzi, president and CEO of the Becket Fund for Religious Freedom, which has argued multiple Religious Freedom Restoration Act cases in federal courts, including the Supreme Court.
“Smith was based on a hunch that this couldn’t work, but now we’ve had 30 years of living with it. Some people may not like the results, but it’s not anarchy,” he said.
In just the past few years, Becket has used the Religious Freedom Restoration Act to challenge a wide range of government actions. They’ve helped Sikh soldiers in the Army win the right to serve their country with a turban and beard, Native Americans in Oregon secure a promise from government to rebuild a sacred site and Catholic nuns with a moral objection to birth control avoid providing it in employee health plans.
One reason why the Religious Freedom Restoration Act hasn’t led to anarchy is that the law doesn’t guarantee victory for people of faith. Government officials can and do win when they prove that a challenged law serves a compelling state interest that would be undermined by a religious exemption.
Still, not everyone is happy with the Religious Freedom Restoration Act’s balancing test, which is why its future is uncertain. A growing group of faith groups, civil rights organizations and mostly Democratic politicians is questioning whether the law gives conservative Christians, in particular, too much power.
“Over time, the courts and others have manipulated the test by lowering the threshold to prove a substantial burden on religion while raising the threshold for the government to prove a compelling interest,” said Rachel Laser, president and CEO of Americans United for Church and State.
For example, as the Supreme Court considered the 2014 case that’s often referred to simply as Hobby Lobby, many legal experts, including more conservative ones, questioned why the court accepted at face value the claim that offering birth control to employees represented a substantial burden on religious business owners’ personal faith.
The justices seemed to suggest that “pretty much anything a claimant says is a substantial burden has to be accepted as a substantial burden,” Laycock told the Deseret News in 2019.
In that case, the court ultimately ruled that the Religious Freedom Restoration Act covered for-profit businesses and that business owners with religious objections to birth control no longer had to pay to cover it in employee health plans. It was a decision hailed by those who felt the Obama administration had wrongly overlooked faith-based concerns while crafting the Affordable Care Act, but it complicated religious freedom’s public image.
The Religious Freedom Restoration Act “became part of the culture wars at the time of Hobby Lobby,” said Thomas Berg, a professor of law and public policy at the University of St. Thomas School of Law in Minneapolis.
The act became further entangled with culture war issues during the Trump administration, as officials proactively offered broad religious exemptions in policies related to health care, church-state partnerships and LGBTQ rights and cited the Religious Freedom Restoration Act to explain why.
Those who are frustrated with these developments continue to rely on the Religious Freedom Restoration Act in legal battles. But they’re also working to ensure that religious exemptions aren’t available in the health care context or in laws aimed at ending anti-LGBTQ discrimination.
Today, there are at least two bills in front of Congress and one that could soon be reintroduced that include language limiting the scope of the act:
The Equality Act would create new federal protections for gay and transgender people while also preventing people of faith from using the Religious Freedom Restoration Act to defend themselves against discrimination claims.
The Do No Harm Act would add carveouts to the Religious Freedom Restoration Act so that it no longer applied to civil rights laws and various other health care and funding rules.
The Every Child Deserves a Family Act, which was introduced in 117th Congress and could soon be reintroduced in the 118th, would prohibit federally funded adoption or foster care agencies from discriminating on the basis of sexual orientation or gender identity, among other traits, and prevent the Religious Freedom Restoration Act from being used in legal action related to the law.
Laycock has criticized these efforts to revise the Religious Freedom Restoration Act even as he’s acknowledged that the Supreme Court sometimes interprets it in unexpected ways.
When people of faith fight for exemptions from LGBTQ civil rights protections, they’re not doing so to cause harm, he said. They’re doing so in hopes of being able to live according to their sincerely held beliefs.
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A fleeting consensus
Although today’s battles over the reach of the Religious Freedom Restoration Act largely stem from recent developments, such as the legalization of same-sex marriage by the Supreme Court in 2015, they were already taking shape in the late 1990s, just a few years after the act was passed.
In June 1997, the Supreme Court ruled that Congress didn’t have the authority to apply the Religious Freedom Restoration Act to state actions, which prompted a push to pass a law to strengthen state-level religious liberty protections, Laycock said.
A bill called the Religious Liberty Protection Act came together within months of the Supreme Court’s 1997 ruling. But as it worked its way across the desks of lawmakers and through committee hearings, it became clear that support for broad religious freedom protections was already weaker than it had been in 1993.
The key issue, according to Laycock, was that, by that point, lawsuits in Alaska and California had put a spotlight on the tension between religious liberty protections and LGBTQ civil rights protections.
As a result, members of the gay rights movement were demanding that the Religious Liberty Protection Act include “a total carveout for any kind of civil rights claim” and many Democrats were listening, Laycock said.
In the end, Congress could only agree on a much narrower policy called the Religious Land Use and Institutionalized Persons Act. It prevents states from enforcing discriminatory zoning laws against houses of worship and from ignoring the faith-related needs of men and women in prison.
Looking back, it feels remarkable that the Religious Freedom Restoration Act avoided the same fate, Laycock said.
“It got in before those decisions out on the West Coast heated everything up,” he said.
As Clinton delivered his remarks at the White House on Nov. 16, 1993, he did not know how fleeting the consensus around the Religious Freedom Restoration Act would turn out to be.
What he did know was that the work that went into it deserved to be celebrated, because even then, before the Equality Act, before Hobby Lobby, before religious freedom was viewed by some as a threat to gay rights, it was rare for the act of policymaking to turn enemies into friends.
“I’m told that as many of the people in the coalition worked together across ideological and religious lines, some new friendships were formed and some new trust was established. The power of God is such that even in the legislative process miracles can happen,” Clinton said.
