A Brief History of Religious Freedom Restoration Acts

Kevin Nathaniel Troy Fowler, KLJ Staff Editor

In the last few weeks the state of Indiana has taken a pointed drubbing over state Senate Bill 101.1 The Bill was comparable to other federal and state law(s) aimed at exempting actors, ranging from humans to business entities, from compliance with laws that hamper the free exercise of religion. Such laws, colloquially known as Religious Freedom Restoration Acts (RFRA(s)), generally place a burden on the government to show that the religion-burdening law serves a compelling interest, and that the law is narrowly tailored towards achieving that interest. Opponents of the law include several prominent industry leaders such as Apple Inc. CEO Tim Cook2 and construction machinery enthusiast Miley Cyrus.3 Such challengers have come down hard against Indiana’s RFRA, contending that it provides bigots with a legal means of discriminating on the basis of sexual orientation under the guise of religious freedom. On the other hand its supporters, including Indiana Governor Mike Pence, have defensively retorted that the Indiana law has been grossly misconstrued and is based on a much less invidious purpose.  Neither side, however, has adequately addressed or explained the precedent and case law that gave rise to the Federal RFRA, nor in turn the plethora of State RFRAs that followed.

Ground Zero of RFRAs is a case called Sherbert v. Verner.4 In 1963, the Highest Court in the Land considered Adell Sherbert’s claim that her exercise of religion had been violated. Sherbert was a textile-mill operator, and also a member of the Seventh-day Adventist Church. After several years on the job, her employer implemented a new policy which required Sherbert to come in on Saturdays. As this violated her religion, Sherbert refused to come to work on one particular Saturday, and was subsequently fired. After a meaningful job search which led to the realization that the task of obtaining another means to live by would be no scoop of ice cream, Sherbert filed for unemployment benefits which were denied because she had failed to accept “suitable work when offered”.5 In finding that the denial of unemployment benefits had violated Sherbert’s exercise of religion, the Court enunciated what is now the heart of all RFRA legislation: a law burdening the free exercise of religion must serve a compelling government interest, and the law must be narrowly tailored to achieving that interest.6

For nearly two decades this was the standard for religiously burdensome laws, with the Supreme Court reaffirming Sherbert in a 1972 case called Wisconsin v. Yoder.7 That came to an abrupt end in 1990, when the Supreme Court decided Employment Division v. Smith.8 In Smith, two Native Americans had been fired for participating in a religious ritual that involved the use of peyote, an illegal drug. Similar to Sherbert, the two people sought unemployment benefits, and similarly, they were denied (essentially because they had lost their jobs for committing a crime). In changing course from the precedent established in Sherbert and reaffirmed by Yoder, the Supreme Court found that the denial of unemployment benefits in this case did not warrant strict scrutiny, and that “neutral law(s) of general applicability”9 not directly targeting the exercise of religion cannot be circumvented by claiming a religious exception.

As a result, in 1993, Congress passed the Religious Freedom and Restoration Act, explicitly reestablishing the Sherbert and Yoder standard.10 In City of Boerne v. Flores,11 the Court held the Federal RFRA was inapplicable to the states, which has prompted at least 31 states to enact or adopt their own RFRA requirement.12 Knowing this contextual background of RFRA legislation is important to understanding its future developments, such as Indiana’s RFRA, as well as the discourse that may engulf it.


1 Editorial, Gov. Pence, Fix ‘Religious Freedom’ Law Now, Indianapolis Star, Mar. 31, 2015, at A1.

2 Tim Cook: Apple Will Oppose Bills like Indiana’s ‘Religious Freedom’ Law, NBC News, (Mar. 29, 2015), http://www.nbcnews.com/news/us-news/tim-cook-apple-will-oppose-states-bills-indianas-religious-freedom-n332316.

3 See Daniel Kreps, Miley Cyrus Promises ‘New Rights Movement’ After Controversial Indiana Law, Rolling Stone (April 1, 2015), http://www.rollingstone.com/culture/news/miley-cyrus-promises-new-rights-movement-after-controversial-indiana-law-20150401; See also  Miley Cyrus, Wrecking Ball (RCA Records 2013).

4 374 U.S. 398 (1963).

5 Id.

6 See id.

7 406 U.S. 205 (1973).

8 494 U.S. 872 (1990).

9 Id.

10 42 U.S.C. § 2000bb.

11 521 U.S. 507 (1997).

12 Juliet Eilperin, 31 States Have Heightened Religious Freedom Protections, The Washington Post (Mar. 1, 2014), http://www.washingtonpost.com/blogs/the-fix/wp/2014/03/01/where-in-the-u-s-are-there-heightened-protections-for-religious-freedom/.