Religious Freedom Restoration Act: Shoring up free religious expression

The Religious Freedom Restoration Act is one of the most significant pieces of legislation dealing with religious freedom to be passed in decades, according to Rex E. Lee, president of Brigham Young University and a former Solicitor General of the United States and a former assistant U.S. Attorney General. He was also founding dean of the BYU J. Reuben Clark Law School.

In a Church News interview, Pres. Lee said members of The Church of Jesus Christ of Latter-day Saints, along with adherents of other religions, should be grateful that President Clinton signed the law, which overturns a Supreme Court ruling that stated that government no longer needed a "compelling interest" to limit religious practice. Pres. Lee said the Supreme Court ruling, which went into effect in 1990, placed in jeopardy religious liberty in the United States. (See related article on passage of the legislation on page 3.)Pres. Lee explained that the Religious Freedom Restoration Act was designed to shore up the protection of free religious expression guaranteed in the U.S. Constitution's First Amendment. The act prevents any level of government - federal, state or local - from interfering with an individual's exercise of religious freedom unless it can show a "compelling governmental interest" in doing so.

In discussing the Supreme Court's ruling in Employment Division v. Smith and the subsequent necessity for a law to restore religious freedom to the status guaranteed before that ruling, Pres. Lee said: "While at the present time and for most of the past century we have not seen any serious wide-spread governmental assault on our religious liberties, we can never afford to be content that that won't happen. Neither can we assume that the reason that this has not happened has not been because of the compelling state interest test. And we must also assume that part of the reason we have been so free in the exercise of our religious liberties is that over the most part of this century the Supreme Court has made it quite clear that there is a very strong, a very heavy, and very high standard or level of protection that is available to all religious groups.

"Three and a half years ago the extent of that protection was threatened. That has now been restored by the Congress of the United States with the passage of the Religious Freedom Restoration Act."

Pres. Lee said it is difficult to hypothesize to what extent members of The Church of Jesus Christ of Latter-day Saints will or will not need the protection of the Religious Freedom Restoration Act in the future.

"I can't think of anything that we are doing right now that would not be protected under the `compelling state interest test,' " he said. "Also, we always have to be concerned about not just what government is doing right now but what government might do in the future, because we know that government can change greatly, and there are certainly hypothetical situations we can think of that might be affected."

One hypothetical situation Pres. Lee described: "State X - it could be any of the 50 states - says the population has gotten out of hand, is affecting our environment, and our ability to feed ourselves; and it's even affecting hurricanes, so we've got to do something about it. Therefore, State X passes a law that says that after a particular date parents are going to have to pay a $2,000 a year head tax on each additional child over the number of two per family. I think we would need the compelling state interest test in order to attack such a law. Another hypothetical situation is that a law is passed that would impose mandatory abortion of any pregnancy in a woman who already has two children.

"Such laws would strike right at the heart of some of our religious beliefs. And while no one can say definitively whether we would either win or lose any of those cases under any standard, certainly we will be given a much heavier weapon. The caliber of the weapon that we would have would be increased by about three or four times by the Religious Freedom Restoration Act over the standard that existed prior to the time that President Clinton signed the act."

Pres. Lee further said: "I would say that the Religious Freedom Restoration Act is one of the most significant pieces of civil rights legislation to be passed in decades. With respect to religious liberty and the particular aspect of individual liberties, frankly, I cannot think of a more important piece of legislation that we've had in the period of time that I've been following these things."

At a J. Reuben Clark Law School Symposium on New Directions in Religious Liberty earlier this year, Pres. Lee said:

"The adoption of the Religious Freedom Restoration Act would represent an improvement in the present state of the law. Of all the rights that might qualify for preferred status, free exercise of religion should head the list. . . . Although many private interests are sacrificed as a price of living in a civilized society, the free exercise of religion cannot be one of them. Free exercise has at least as great a claim to the protection of heightened scrutiny as any other right afforded such protection by the Court."

Subscribe for free and get daily or weekly updates straight to your inbox
The three things you need to know everyday
Highlights from the last week to keep you informed