- Top Ten “Reasons to Repeal the RFRA”
- What’s Really Wrong With the Decisions in Burwell v. Hobby Lobby and Conestoga Wood v. Burwell?
- Professor Marci A. Hamilton’s widely discussed Hobby Lobby Amicus Brief.
Four phrases are critical to understanding free exercise under the First Amendment, RFRA, RLUIPA, and the state RFRAs “neutral and generally applicable,” “strict scrutiny,” “compelling interest,” and “least restrictive means.”
1. A “neutral and generally applicable law” is one that is nondiscriminatory and that applies the same law to everyone who engages in the same act. In other words, it’s a fair law that regulates conduct, regardless of who does it.
2. “Strict scrutiny” is what the Supreme Court applies to laws that are likely unconstitutional. If there is reason to suspect a law is unconstitutional, the courts drop their normal deference to the legislature and look closely at the law. Under strict scrutiny, the courts require the government to prove that a law serves a compelling interest and is well tailored to the ends it serves. The best example is a law that is based on race, which is always subjected to the strictest of scrutiny. The courts treat the race marker as an indication that they need to look at this law carefully.
3. A “compelling interest” is a state interest of the highest order. “The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.” Wisconsin v. Yoder, 406 U.S. 205, 215 (1972).
4. The “least restrictive means” is a term that was introduced into free exercise doctrine with RFRA. “Least restrictive means” means that the law must be tailored to this particular claimant. As Justice Powell stated in 1980, and it still remains true, “this ‘means’ test has been virtually impossible to satisfy.” Fullilove v. Klutznick, 448 U.S. 448, 507 (1980) (Powell, J., concurring).