Religious Freedom Restoration Act (RFRA)

Acting in response to the U.S. Supreme Court’s judgment in Employment Division, Department of Human Resources v. Smith (1990), Congress enacted the Religious Freedom Restoration Act (RFRA) in 1993 pursuant to the Necessary and Proper Clause in the federal Constitution. In Employment Division, the Court held that the Free Exercise Clause of the First Amendment would no longer be a defense to government statutes or regulations that were neutral and generally applicable. In light of the potential impact that the Religious Freedom Restoration Act may have on religious colleges and universities, particularly with regards to zoning and land uses, this entry examines the act’s key provisions along with cases interpreting its application in the event that such litigation should arise. This entry also reviews the Religious Land Use and Institutionalized Persons Act, which applies the principles of the Religious Freedom Restoration Act to local and state governments.
When Congress enacted the RFRA, it noted in its findings that the free exercise of religion is an unalienable right protected by the First Amendment and that “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise” (RFRA § 2000bb(a)(1), (2)). In emphasizing that it was essentially reversing the Supreme Court’s judgment in Employment Division, Congress identified its two purposes for enacting Religious Freedom Restoration Act. Congress’s first goal in enacting the Religious Freedom Restoration Act was the restoration “of the compelling interest test as set forth in Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972)” that applies when the government action affects religious freedom. The second aim of the act was providing “a claim or defense to persons whose religious exercise is substantially burdened by government” (RFRA, § 2000bb(b)).
In the Religious Freedom Restoration Act, Congress allowed the government to place a substantial burden on the free exercise of religion only if it demonstrated that the burden was “(1) in furtherance of a compelling governmental interest; and (2) [was] the least restrictive means of furthering that compelling governmental interest (RFRA, § 2000bb-1(b)).” At the same time, the Religious Freedom Restoration Act specifically directed that its terms could not be applied to alleged violations of the Establishment Clause, stipulating that “granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, shall not constitute a violation of this chapter” (RFRA, § 2000bb-4).
In 1997, the Supreme Court, in City of Boerne v. Flores, found that the application of the Religious Freedom Restoration Act to a city zoning ordinance in Texas over a dispute on a wall located on church property was overreaching in terms of its impact on the relationship between states and the federal government under the Tenth Amendment. To this end, the Court invalidated the RFRA as it applied to states. While the Court acknowledged that Congress has authority under Section 5 of the Fourteenth Amendment to legislate rights protected under the Fourteenth Amendment, it may exercise this power in a manner that forbids constitutional state action in an effort to limit unconstitutional actions by state officials.
In response to City of Boerne, Congress amended the Religious Freedom Restoration Act in 2000 by limiting the application of its 1997 version to the federal government. Congress also added a new statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA). Although RLUIPA is not technically an amendment to Religious Freedom Restoration Act, it immediately follows the RFRA in the United States Code (the official compilation of federal statutes) and applies the principles of the RFRA to local and state governments. Insofar as the Religious Land Use and Institutionalized Persons Act prohibits any government from imposing or implementing land use regulations that treat religious assemblies or institutions any differently from nonreligious ones or from discriminating against religious assemblies or institutions, it should be of significant interest to officials in religiously affiliated colleges and universities. However, the Religious Land Use and Institutionalized Persons Act, unlike the Religious Freedom Restoration Act, is grounded in Congress’s spending power and prohibits government at any level from imposing substantial burdens on the religious exercise of individuals in programs or activities that receive federal financial assistance. In addition, the Religious Land Use and Institutionalized Persons Act prohibits a substantial burden on religious exercise that affects interstate commerce. The Religious Land Use and Institutionalized Persons Act (RLUIPA) imposes the same “compelling government interest” and “least restrictive means” tests that are required under the RFRA on all levels of government.
The impact of Religious Land Use and Institutionalized Persons Act on education has mainly involved issues relating to zoning requirements that prohibit religious educational institutions from expanding their facilities, an issue that should be of interest to religious colleges and universities. For example, in Westchester Day School v. Village of Mamaroneck (2007), the Second Circuit affirmed that a zoning board in New York had improperly denied a religious school’s request for a permit to expand its facilities. The court viewed this as an impermissible governmental prohibition within the meaning of the statute, because it substantially burdened the school’s religious exercise, in violation of the RLUIPA. Conversely, in Ehlers- Renzi v. Connelly School of the Holy Child (2000), the Fourth Circuit upheld a county building code exception from Maryland for schools that were located on land owned or leased by churches or religious organizations, ruling that the code did not violate the Establishment Clause. The court maintained that nonreligious educational institutions, on the other hand, were required to file petitions explaining in detail how the special exception would operate. Relying on the Supreme Court’s decision in Amos v. Corporation of the Presiding Bishop (1987), the Fourth Circuit reasoned that the zoning code did not violate the Establishment Clause’s tripartite Lemon v. Kurtzman (1971) test, observing that at times the government is entitled to, and must, accommodate religion without violating the Establishment Clause.
In the years since Congress passed the 2000 amendment to the Religious Freedom Restoration Act in response to Boerne, the Supreme Court has not addressed another challenge to the act’s constitutionality on its face, meaning as it is written but not applied. However, in Hankins v. Lyght (2006), the Second Circuit upheld the Religious Freedom Restoration Act’s constitutionality against a separation of powers claim that Congress had imposed greater protection from federal actors and statutes for religious entities than the Supreme Court required. According to the court, Congress may provide more individual liberties on the federal level than the Constitution requires without violating the vital separation of powers principles. Hankins is an interesting case, because although the Second Circuit remanded the case for trial, it indicated that the RFRA could serve as a church’s defense to a former bishop’s Age Discrimination Employment Act (ADEA) claim that church officials had compelled him to retire at the age of 70, a somewhat extraordinary position, because the RFRA protects against federal, not individual, actions. Subsequently, the Second Circuit in Rweyemamu v. Cote (2008), without reaching the merits of the claim, suggested that although the Religious Freedom Restoration Act would be a defense against discrimination claims where the Equal Educational Opportunities Commission was a plaintiff, it should not apply to claims based on federal discrimination statutes brought by individuals.
Both Hankins and Rweyemamu leave open the extent to which the federal government may negatively impact religious claimants. In Holy Land Foundation for Relief and Development v. Ashcroft (2003), the District of Columbia Circuit upheld the designation of a Muslim-related charitable foundation as a Specially Designated Global Terrorist Organization, pursuant to two Presidential Executive Orders issued under a federal statute. The court was satisfied that the RFRA technically did not apply to the foundation, because the Religious Freedom Restoration Act makes no reference to religion in its purposes. Even so, the court was of the view that, even had the foundation stated that the fomenting and spread of terrorism was mandated by the religion of Islam, the Free Exercise Clause does not create a right to fund terrorists, and there was no evidence that Congress intended to create such a right within the RFRA.
The RFRA has been extensively litigated by inmates in state and federal prisons, alleging that prison rules and regulations violate the exercise of their religious beliefs. The Seventh Circuit, in O’Bryan v. Bureau of Prisons (2003), posited that because the Religious Freedom Restoration Act applied to Bureau of Prisons personnel, it governed a federal prison inmate’s action challenging the bureau’s rule against “casting of spells/curses” that effectively prohibited him from practicing his Wiccan religion. O’Bryan is a useful case, because it clarified the reach of City of Boerne. The Seventh Circuit remarked in O’Bryan that in City of Boerne, the Supreme Court had not declared the RFRA violated any substantive constitutional rights. Rather, the court recognized that the RFRA allowed Congress to determine how the national government would conduct its own affairs but did not offer a source of authority to apply the Religious Freedom Restoration Act to both state and local governments. More recently, the District of Columbia Circuit affirmed, in Webman v. Federal Bureau of Prisons (2006), that the Religious Freedom Restoration Act waived sovereign immunity to private enforcement to the extent that it allowed parties whose rights were violated to obtain appropriate relief against the government. However, the court acknowledged that the waiver did not extend to monetary damages, because insofar as the Religious Freedom Restoration Act’s reference to appropriate relief was susceptible to more than one interpretation, it did not amount to the kind of unambiguous waiver that is necessary in order for governmental entities to be sued.
To date, the RFRA has produced no reported cases involving higher education, although nothing in its provisions would prohibit its application to religious colleges and universities. Issues have arisen under the Religious Land Use and Institutionalized Persons Act involving religious entities such as churches, where the focus is a local zoning ordinance requiring special use permits to build public assembly buildings in an area zoned as residential. Courts have generally rejected claims of Religious Land Use and Institutionalized Persons Act violations where ordinances are facially neutral, do not unfairly target religions, and provide no evidence that any nonreligious groups were treated more favorably (Vision Church v. Village of Long Grove, 2006). Presumably, because courts would reach the same outcome if the litigation concerned challenges by religious colleges or universities to local restrictive zoning code requirements, this is a topic that should be of interest to officials and attorneys in institutions of higher education.
Ralph D. Mawdsley

See also Age Discrimination in Employment Act; Eleventh Amendment; Equal Educational Opportunity Commission; Federalism
Legal Citations
Age Discrimination in Employment Act, 29 U.S.C. § 621.
Amos v. Corporation of the Presiding Bishop, 483 U.S. 327 (1987).
City of Boerne v. Flores, 521 U.S. 507 (1997). Ehlers-Renzi v. Connelly School of the Holy Child, 224 F.3d 283 (4th Cir. 2000).
Employment Division, Department of Human Resources v. Smith, 494 U.S. 872 (1990).
Hankins v. Lyght, 441 F.3d 96 (2d Cir. 2006).
Holy Land Foundation for Relief and Development v. Ashcroft, 333 F.3d 156 (D.C. Cir. 2003).
Lemon v. Kurtzman, 403 U.S. 602 (1971).
O’Bryan v. Bureau of Prisons, 349 F.3d 399 (7th Cir. 2003).
Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb-2000bb-4.
Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc-2000cc-5.
Rweyemamu v. Cote, 520 F.3d 198 (2d Cir. 2008).
Sherbert v. Verner, 374 U.S. 398 (1963).
Vision Church v. Village of Long Grove, 468 F.3d 975 (7th Cir. 2006).
Webman v. Federal Bureau of Prisons, 441 F.3d 1022 (D.C. Cir. 2006).
Westchester Day School v. Village of Mamaroneck, 504 F.3d 338 (2d Cir. 2007).
Wisconsin v. Yoder, 406 U.S. 205 (1972).