Republicans have retaken Congress, and on January 20, with Donald Trump’s inauguration, they will control the White House, too. The party will then presumably get to work crafting and passing legislation. While immigration and the border, taxes, and energy will likely top the agenda, GOP lawmakers should tackle another worthy issue: religious freedom.
Several state governments, among them California and New York, have balked at instituting legal protections for religious practice. As disputes between state governments and religious individuals and organizations proliferate, the new Republican-led Congress could take federal action.
The GOP may believe its hands are tied in passing federal religious freedom legislation. In the 1990 case Employment Division v. Smith, the Supreme Court held that the First Amendment’s Free Exercise Clause does not bar the “application of a neutral, generally applicable law to religiously motivated action.” Basically, that means that a state law that applies to everyone (“generally applicable”) and is not motivated by religious animus (“neutral”) is subject to the lowest form of judicial scrutiny: rational basis. Under that standard of review, laws are almost invariably upheld as constitutional.
Congress disliked Smith. Federal lawmakers sprang into action and passed the Religious Freedom Restoration Act (RFRA) of 1993. Under that law, if a government—federal, state, or local—substantially burdened a person’s exercise of religion, it would have to show a court that the law in question served a “compelling government interest.” In other words, RFRA subjected government regulations of religion to a tougher standard of review, even if such regulations were neutral and generally applicable. Unlike the lenient standard applied under the Smith regime, the RFRA test required governments to provide more robust justification for laws that burdened religious practice.
Then, in 1997’s City of Boerne v. Flores, the Supreme Court struck down RFRA as it applied to state governments. What happened here is a bit tricky: essentially, Congress passed the state portion of RFRA using its power under Section 5 of the Fourteenth Amendment. When Congress relies on that provision while exercising its lawmaking authority, “[t]here must be a congruence and proportionality between [the purported constitutional violation] to be prevented and the [laws] adopted” to prevent such violations. That is, under Section 5, Congress can pass laws binding on states only if such laws are directed at preventing constitutional violations and are proportionate to the magnitude of the problem.
For the Court, RFRA didn’t cut it. For starters, the Court was skeptical that Congress was actually preventing constitutional wrongs. Recall that, in Smith, the Court held that generally applicable and neutral state laws would be subject to a lenient standard of review. RFRA said the opposite: it required that such laws be scrutinized under a more demanding standard. In other words, the Court found Smith and RFRA in direct conflict with one another.
Next, the Court argued that RFRA was a disproportionate congressional response. Surveying the country in 1997, the justices found no evidence of substantial religious discrimination at the state level. It deemed RFRA, as I put it in a Harvard Law Review analysis, “uncalled for, considering the dearth of observed religious discrimination” in the states. For these two reasons, the Court said that RFRA, as applied to the states, was unconstitutional.
But the ruling was contextual and fact-specific. In essence, the Court concluded that RFRA was unconstitutional at that point in time. More than a quarter-century later, things have changed. The law and the facts on the ground are different. Today, a new RFRA would likely pass constitutional muster.
Consider the first reason the Court invalidated RFRA: that it was in direct conflict with Smith. But Smith is no longer the only game in town. As I have written, in its 2021 ruling in Tandon v. Newsom, “the Court clarified Smith’s general-applicability prong by outlining its ‘most favored nation’ theory: ‘government regulations are not neutral and generally applicable . . . whenever they treat any comparable secular activity more favorably than religious exercise.’”
Put simply, Free Exercise Doctrine nowadays is more rigorous than it was 30 years ago. Thus, a new RFRA would no longer be in such tension with the Court’s Free Exercise jurisprudence. That’s one point in favor of RFRA being constitutional.
Another is the rise in religious discrimination. From Masterpiece Cakeshop to Fulton to Tandon, the Court itself has taken notice of recent state efforts to burden religion. In those instances, it has stepped in and put a stop to discriminatory laws. Today’s Court would seem less likely to view Congress’s efforts as disproportionate.
Of course, the Court itself could overrule Employment Division v. Smith, and if it did, Congress wouldn’t have to act. But in 2021, a divided Court “balked” at scrapping Smith altogether. The justices, especially Justice Amy Coney Barrett, struggled with pinpointing what exactly should replace it. They left that tough question for another day.
The Court might welcome Congress removing the burden from its shoulders.
A congressional response would also likely be perceived as more legitimate. An elected branch of government would be taking the lead in addressing an issue of national importance. And under existing law, when the legislative branch acts under Section 5 of the Fourteenth Amendment, the Court reviews the constitutionality of those acts with “much deference.”
Beyond the legal case for RFRA’s constitutionality, there are good policy reasons for Congress to act, too. True, after City of Boerne, many states implemented their own RFRA-like provisions. But 14 states, including California and New York, didn’t follow suit: they still don’t subject government regulations of religious practice to heightened judicial scrutiny. A new federal RFRA would reach all 50 states and fill in the remaining gaps.
If the 119th Congress is serious about protecting religious freedom, it should pass a new RFRA that applies to state governments. The law is on Congress’s side. It remains to be seen whether Republicans will step up and make it happen.
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