The Top Ten “Fun Facts” About the Religious Freedom Restoration Act (RFRA)

Professor Hamilton Offers the Following Facts About RFRA:

 

The Top Ten “Fun Facts” About the Religious Freedom Restoration Act (RFRA)

1.  RFRA was drafted by a committee co-chaired by Michael Farris, of the Home School Legal Defense Association, who founded Patrick Henry College, the “Harvard” of colleges for home-schooled children, and which follows the “Christian patriarchy movement” and preaches that women should be submissive to men.

2.  RFRA was NEVER passed unanimously.  In 1993, the House passed it by “unanimous consent” (meaning very few were there and there was no roll call vote); and the Senate passed it by a vote of 97-3.   When re-enacted in 2000, it was passed by “unanimous consent” (again with few there and no roll call vote) in both houses.

3.  The RFRA formula (putting the burden on the government to prove that a law – if it imposes a “substantial burden” on the religious actor—serves a “compelling interest” in the “least restrictive means”) cannot be found in a single Supreme Court free exercise case, despite the word “Restoration” in its name.

4.  The Supreme Court has never applied the “least restrictive means” test in a free exercise decision.

5.   On June 11, 1993, the Supreme Court decided Church of Lukumi Babalu Aye v. City of Hialeah, in which it applied strict scrutiny under the Free Exercise Clause.  The Church argued for the “least restrictive means” test.  Seven members rejected the “least restrictive means” test in favor of “narrow tailoring.”  Only two members (Justices Blackmun and O’Connor) embraced it.

6.  RFRA was first passed on Nov. 16, 1993 and “restored” the standard that the Court had rejected five months earlier in Lukumi.

7.  When the Supreme Court held RFRA unconstitutional in Boerne v. Flores (1997), it did not at any point limit its holding to state law.

8.  During the oral argument in Boerne v. Flores, not a single Justice defended RFRA.

9.  The Supreme Court has only addressed RFRA once before, in the opinion Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal (2006), written by Chief Justice Roberts, who wrote that the Court’s doctrine would uphold the federal drug laws under attack, but that the federal government had imposed on itself RFRA, so, essentially, too bad for the government.

10.  The current General Counsel for the United States Conference of Catholic Bishops is Anthony Picarello, who started with the Becket Fund, which has long lobbied for and supported RFRA and is representing Hobby Lobby on Tuesday.

Marci Hamilton

Marci A. Hamilton is one of the United States’ leading church/state scholars and is a Fox Family Pavilion Distinguished Scholar in Residence in the Program for Research on Religion and Urban Civil Society at the University of Pennsylvania. She is also the Academic Director and President of CHILD USA, a 501(c)(3) nonprofit dedicated to interdisciplinary evidence-based research and tracking of medical, legal, and psychological developments to prevent and deter child abuse and neglect, which she co-leads with Dr. Steven Berkowitz, University of Pennsylvania Medical School, and Dr. Paul Offit, Children’s Hospital of Philadelphia. She holds the Paul R. Verkuil Research Chair at the Benjamin N. Cardozo School of Law, Yeshiva University, through 2018.