How 97 senators and a voice vote undid a Supreme Court decision

Washington rarely agrees on anything. It does not agree on the budget, on the border, on judges, or on what to call the thing in the middle of the Capitol. So when you find a bill in which the American Civil Liberties Union and the Christian Legal Society lined up on the same side, along with Baptists and Jews and Muslims and Catholics, with Senator Ted Kennedy and Senator Orrin Hatch both putting their names on it, and when that bill passed the Senate 97 to 3 and the House on a voice vote, you are looking at something unusual. You are looking at the Religious Freedom Restoration Act of 1993.

I want to tell this story because it is one of the best examples we have of how the American system is supposed to work. The Supreme Court made a decision. A lot of people in very different camps thought the decision was a mistake. They did not riot, and they did not throw eggs at the justices. They went to Congress, wrote a bill, collected cosponsors and got a President to sign it. That is how a republic handles a dispute with its own courts. And along the way, the story teaches you something about what religious freedom actually is.

The peyote case

The case that started it all had nothing to do with churches in the way we usually picture them. Alfred Smith and Galen Black were counselors at a private drug and alcohol rehabilitation organization in Oregon. Both were members of the Native American Church, and both took part in a ceremony in which peyote, a cactus-derived substance, is used as a sacrament. Their employer fired them for it. They applied for unemployment benefits, and the State of Oregon denied them on the ground that they had been dismissed for work-related misconduct, namely using a controlled substance that Oregon law prohibited.

The case reached the Supreme Court as Employment Division v. Smith, decided on April 17, 1990. Justice Antonin Scalia wrote the opinion for the Court, and he held, in a 6-3 decision on the result, that the Free Exercise Clause does not require the government to give a religious exemption from a law that is neutral and generally applicable. If the law does not target religion, and it applies to everyone alike, then the fact that it burdens someone's religious practice is not enough to make it unconstitutional.

That was a big shift. For about three decades, the Court had used a more demanding approach.

The test that Smith set aside

The older approach came from Sherbert v. Verner in 1963. Adell Sherbert was a Seventh-day Adventist in South Carolina who was fired from her job for refusing to work on Saturday, her Sabbath. The state denied her unemployment benefits on the ground that she had refused available work. The Supreme Court ruled for Sherbert, 7-2, in an opinion by Justice William Brennan. The Court asked whether the state had imposed a substantial burden on her religious exercise, and if so, whether the state had a compelling interest that could be achieved in no less restrictive way.

Nine years later, in Wisconsin v. Yoder in 1972, the Court applied the same framework to rule for Amish parents who had been convicted for refusing to send their children to school after the eighth grade. Chief Justice Warren Burger's opinion said that the state's interest in universal education was substantial but that, for these families and this way of life, it did not outweigh their right to practice their faith. You can read more about the parental-rights side of that case in Meyer, Pierce, Yoder and Troxel Prove the Constitution Puts Parents First.

Now here is the point. In practice, even under Sherbert and Yoder, religious claimants did not win very often. The Court denied relief in a number of cases involving the military, taxes, prisons and others. But the method mattered. The government had to justify itself. It was not enough to say the law was reasonable. In Smith, Scalia argued that applying that test across the board would make every citizen a law unto himself, an echo of language from Reynolds in 1879, and that the Court should leave exemptions to legislatures. In his view, a religious exemption could be created by the political process, and the political process was the right place to do it.

Why the decision caused an uproar

If you believe in the importance of the free exercise of religion, the reaction to Smith is easy to understand. Under Scalia's rule, a law that burdens religion gets the same lenient review as any other regulation, as long as it does not target faith. And think of how many ordinary regulations can collide with conscience in ways their authors never imagined: autopsy laws, zoning rules, dress codes, animal slaughter, employment schedules and drug laws. A small religious minority, such as the Native American Church, is not going to have a lot of lobbyists in a state capitol.

Justice Sandra Day O'Connor agreed with the result but not with the reasoning. In a separate opinion she said the Court's approach "dramatically departs" from the Court's precedents; the compelling interest test should stay, she argued, and Oregon simply met it in that case. Three justices in dissent, led by Justice Harry Blackmun, agreed that the older test should stay and also said Oregon had not met it.

I think a fair reader can see both sides. Scalia's concern about courts picking and choosing which religious practices merit exemptions from which laws is not frivolous. Judges are poorly placed to decide whether a belief is sincere enough or central enough. His critics' concern, that minority religions would be at the mercy of legislative majorities, was real as well. What made 1990 notable is the speed with which people on every side began looking for a way around the decision.

The unlikely coalition

The coalition that formed after Smith is hard to believe in the polarized Washington of today. It was organized as the Coalition for the Free Exercise of Religion and eventually included more than sixty groups. It had the ACLU and the Christian Legal Society, the Baptist Joint Committee for Religious Liberty and the American Jewish Committee, the National Association of Evangelicals, Catholic and mainline Protestant bodies, and People for the American Way. I would not pretend that these groups agreed on much. But they agreed on this: the government should not be able to burden religious practice without a good reason.

The bill, introduced in the House by Representative Chuck Schumer and in the Senate by Senator Ted Kennedy, with Senator Orrin Hatch as a leading supporter, was straightforward. It said that the government shall not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability, unless the government shows that applying the burden to the person is in furtherance of a compelling governmental interest, and is the least restrictive means of furthering that interest.

In plain words, it wrote the Sherbert test into a federal statute. It did not rewrite the Constitution, which only the Court and the amendment process can do. It changed the rule that applied under federal law.

The vote and the signing

The House passed the bill by voice vote in May 1993, which means there was no recorded tally because there was no serious opposition. The Senate passed it on October 27, 1993, by a vote of 97 to 3. President Bill Clinton signed it into law on November 16, 1993, in a South Lawn ceremony with leaders from many faiths in attendance.

Take a moment with the arithmetic. Of the hundred senators, 97 voted yes and 3 voted no. That is a 97 percent majority of the Senate, in a chamber that has trouble reaching 60 on a vote about the weather. A few years after it passed, nobody in either party could claim it was a partisan stunt.

The Boerne decision and the states

Now we get to the part of the story that keeps it from being a tidy fairy tale. In 1997, the Supreme Court decided City of Boerne v. Flores, in an opinion by Justice Anthony Kennedy, 6-3. The case arose in Boerne, Texas, where the St. Peter Catholic Church wanted to enlarge its building and the city's historic preservation board said no, because the church was in a historic district. The Archbishop of San Antonio, Patrick Flores, sued under RFRA.

The Court held that, as applied to the states, RFRA exceeded Congress's power. Congress's authority under Section 5 of the Fourteenth Amendment is to enforce the rights the Court has recognized, not to change what those rights mean. A law that imposed a stricter test on state and local governments than the Court had held the Constitution required was, the Court said, a change in the substance of the right. So RFRA, as applied to state and local laws, was out. Churches were in a worse position against local zoning boards than they had been the day before.

But RFRA was not dead. It still applies to the federal government, a point the Court confirmed unanimously in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal in 2006. That case involved a small religious group that wanted to import and use a sacramental tea, and the Court ruled that the federal government had failed to show a compelling reason to deny the exemption. Alito did not participate, since he had not yet joined the Court when it was argued, which is why the vote was 8-0.

What Congress and the states did next

If Congress could not apply RFRA to the states, other approaches were available.

1. State RFRAs. Many states passed their own versions, by statute or by court decision. A little over twenty states have such a law, with different wording; the exact number changes, so check your own state legislature's website. Illinois and Florida passed theirs in 1998, and Texas in 1999.
2. RLUIPA (2000). Congress responded to Boerne with the Religious Land Use and Institutionalized Persons Act of 2000, which protects religious groups from burdensome zoning and land-use decisions and protects prisoners' religious exercise. It relies on Congress's powers over federal spending and interstate commerce rather than Section 5. President Clinton signed it on September 22, 2000. In Holt v. Hobbs (2015), the Court unanimously held that an Arkansas inmate, Gregory Holt, a Muslim, had the right under RLUIPA to grow a half-inch beard.
3. Native American peyote. In 1994, Congress amended the American Indian Religious Freedom Act to protect the traditional ceremonial use of peyote by Native Americans, which restored the specific right Alfred Smith had lost.

You can see how the story continues in From Hobby Lobby to the Little Sisters, the long fight over one mandate, where RFRA came back in the Supreme Court in a very different context, and in What the 9-0 Fulton decision means for foster care and faith agencies on a related free exercise ruling. If you want to know how to ask your own employer for a religious accommodation, read How to ask for your Sabbath at work and what Groff v. DeJoy changed.

The strongest objection

The best objection to RFRA does not come from people who dislike religion. It comes from people who worry about rule-of-law basics. If anyone with a sincere religious belief can ask for an exemption from any law, they say, the law becomes a menu. Employers, landlords and businesses might claim exemptions that harm other people, and it is the courts that have to decide each case. The very people who passed the bill later disagreed about how far it reaches, and some of the coalition members broke with one another in later fights.

That is a serious point, and I would put the answer in three pieces. First, RFRA does not guarantee that religious claimants win. It says the government has to show a compelling interest and use the least restrictive means, and courts have rejected RFRA claims where the government met that burden. Second, the law requires a substantial burden on a sincere religious exercise, which screens out a lot of claims. Third, the alternative is not neutrality; it is leaving the question to whichever legislature happens to be in session, which is exactly where small religious groups lose. As I argue in the three-part test that haunted churches for fifty years is finally gone, the Court itself has been moving toward text and tradition and away from pure balancing, and RFRA is a statute that asks for balancing in individual cases. Whether you like that depends on how much you trust judges. I trust them to ask the government for a reason more than I trust the government to supply one unprompted.

The verdict

The RFRA story is the best advertisement I know for a self-governing people. A decision with consequences came down, and the people, in an extraordinary coalition, went to their representatives and got the rule changed. They did it without a constitutional crisis. It was also a reminder that conservatives and civil libertarians can agree when the principle is clear. When the government wants to burden someone's conscience, the burden is on the government.

The bottom line

• Employment Division v. Smith (1990) held that neutral, generally applicable laws need no religious exemption. RFRA (1993) restored the older compelling-interest test for federal law.
• The Senate vote was 97-3, the House passed it by voice vote, and President Clinton signed it on November 16, 1993. Big coalitions come from clear principles.
• City of Boerne v. Flores (1997) limited RFRA to the federal government. That is why your state's RFRA, if it has one, and RLUIPA matter. Look up your state's law on your legislature's website.
• RFRA does not guarantee that religious claimants win. It makes the government justify the burden, which is a fair rule for a free people.
• If you face a conflict between your faith and a government rule, document the burden, ask for an accommodation in writing, and consult a lawyer who handles religious liberty cases.