The Much Maligned Indiana’s Religious Freedom Law is Merely a State RFRA

rfraThere is little understanding of Indiana’s Religious Freedom Law. The First Amendment says, “Congress shall make no law . . . prohibiting the free exercise [of religion].” Does this merely prevent government from prescribing or proscribing certain religious beliefs? Or does it also mean prohibiting government from causing one to engage in acts or omissions against one’s religion?

One of the earlier judicial tests narrowing the meaning was the infamous 1878 case of Reynolds v. The United States. The Supreme Court ruled that while you cannot outlaw believing in Mormonism, you can outlaw practicing Mormonism by preventing bigamy. In the court’s words: “While [government] cannot interfere with mere religious belief and opinions, they may with practices.”

The tide started to turn in 1943. In West Virginia State Board of Education v. Barnette, the court ruled that Jehovah’s Witnesses students did not have to salute the flag or say the Pledge of Allegiance. Not only did the Free Exercise Clause protect freedom of belief, but also religiously informed behavior. The Court made the momentous ruling that religious practices “are susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect.” The compelling interest test was born.

Then came the high water marks for religious freedom embodied by Sherbert and Yoder. In the 1963 case of Sherbert v. Verner, the Supreme Court ruled that a Seventh-Day Adventist could not be denied unemployment benefits simply because she refused to work Saturdays, her Sabbath. In the 1972 case, Wisconsin v. Yoder, the Court held that Amish children could not be required to comply with a state law demanding they remain in school until age 16, when their religion required them to focus on uniquely Amish values and beliefs during their formative adolescent years.

For both cases, the court decisions used a balancing test that took into account whether the challenged action imposed a substantial burden on religious practice, and if it did, whether it was needed to serve a compelling government interest. Moreover, the restriction had to be narrowly tailored to serve the compelling government interest — by the least restrictive means necessary.

Enter the cataclysmic 1990 case of Employment Division v. Smith. The defendants were fired because they ingested peyote, a cactus used in Native American Church religious ceremonies. In a shocking ruling, the Court pushed aside nearly a half century of case law and held that government need not show a compelling interest before substantially burdening religious freedom, as required by Sherbert and Yoder.

It held that “neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.” The Reynolds decision had become the law again. Since the law banning peyote was not aimed at members of the Native American Church, and since it had a rational basis, (it wasn’t completely crazy) it was constitutional.

In response, Congress enacted the Religious Freedom and Restoration Act (RFRA) in 1993. RFRA reintroduced the compelling interest/narrowly tailored standard of Sherbert/Yoder when examining government restraint on religion.

In 1997, the Supreme Court effectively ruled that RFRA can only apply to federal laws, for federalist reasons too complex to explain here. States began passing their own RFRAs; 21 states have done so. The much maligned Indiana’s Religious Freedom Law is merely a state RFRA. And that’s what all the fuss is about.

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