First Amendment Hierarchy of Religious Rights

“The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no god.”

“the legitimate powers of government reach actions only, & not opinions”

—Thomas Jefferson

The Right to Believe = Absolute

                  (harms no one)

The Right to Religious Speech = Highly Protected

                  (harm unlikely)

The Right to Religious Conduct = The Law Governs Actions

                  (harm more likely)


This is the year of the RFRA, the Religious Freedom Restoration Act. The American public has been deluged with news about the federal and state RFRAs. On the federal front, there are the large for-profit corporations like Hobby Lobby, demanding a right under RFRA to shape their benefit packages in opposition to the Affordable Care Act and Title VII. In the states, we have had a viral contagion of state RFRA amendments that would make it possible for businesses to defend refusals to do business with homosexuals and/or same-sex couples (and in Arizona, with women, minorities, and the disabled, among others). In this column, I will focus on the federal level. In my next column for Justia, I will turn to the state RFRAs.

For those of us who have been toiling in the RFRA vineyard for 20 years, it is heartwarming to see the American public awakening to its extreme regime. Only when the people understand and speak up, will our elected representatives cease to mindlessly pander to religious demands and return to the job of serving all of their constituents.

What is a RFRA?

What is a RFRA, you ask? It is a statute that accords believers extreme religious liberty rights. It is not, in fact, a “restoration” of constitutional principles, despite its title. To understand what we are dealing with, consider the following chart:

The Never-Ending Spiral of Extreme Religious Liberty (View as PDF)

A Recent History of the Expansion of Religious Liberty Doctrine 
1. 1878-present
Ordered Liberty Under the Constitution, First Amendment, Free Exercise Clause
Employment Division v. Smith, 494 U.S. 872 (1990)
Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)

  1. Believer must prove law imposes a substantial burden.
  2. A neutral, generally applicable law is constitutional unless irrational.
  3. If law is not neutral or not generally applicable, ordinary strict scrutiny applies: the government must prove a compelling interest and that the law is narrowly tailored
  4. The right is only good against the government (state action)

2. 1972
Singular Departure from Ordered Liberty Cases
Wisconsin v. Yoder, 406 U.S. 205 (1972)

  1. Believer must prove a substantial burden
  2. Only Supreme Court case where a neutral, generally applicable law is subjected to strict scrutiny
  3. Government must prove a compelling interest and that the law is narrowly tailored

3. 1993
Religious Freedom Restoration Act of 1993

  1. Believer must prove a substantial burden
  2. Government must prove a neutral, generally applicable law serves a compelling interest
  3. Narrow tailoring is replaced by the more extreme “least restrictive means”
  4. Relief permitted only “against a government”

4. 2000
Amendments to Religious Freedom Restoration Act (further expansion of rights for believers)
Rules: Expands definition of “religious exercise” to: “any exercise of religion, whether or not compelled by, or central to, a system of religious belief”

As this chart should make clear, there are critical differences between the First Amendment’s Free Exercise Clause and RFRA. The chart and the following are intended to be educational, not confrontational, which, unfortunately, is something that I must say in this politically-charged atmosphere. The rhetoric used to lobby for RFRAs as though they are mirror images of the First Amendment has been just that—rhetoric. A RFRA is not a mirror image of the First Amendment and no one—least of all a legislator—should think that it is. And none of the RFRA supporters need to call my description “hysterical,” as they are wont to do, because it is simply factual.

Under the Court’s approach to rights generally, which it often calls “ordered liberty,” the First Amendment subjects a neutral, generally applicable law to rationality review. For example, if you are stopped for a speeding ticket, the fact you are religious does not help. And a law that is not neutral, or not generally applicable, is subject to strict scrutiny. For example, if a law is passed to eject a religious group or if a law provides exceptions for secular conduct but none for conduct that is religiously motivated, it receives strict scrutiny.

Strict scrutiny for the Court in the free exercise cases has meant that the law must serve a “compelling interest” and be “narrowly tailored” to serve that interest. Only laws that are not neutral or not generally applicable have received this strict scrutiny.

A RFRA is a religious liberty special-of-the-day omelet, which breaks eggs and combines them with novel ingredients. First, forget rationality review for any statute. Instead, those statutes that are neutral and generally applicable (i.e., the vast majority of laws) are subjected to a version of strict scrutiny. That is an extraordinary leap in the power of believers to trump the law. That alone means that RFRA does not mirror the First Amendment.

Second, I say they are subjected to a “version” of strict scrutiny, because the original RFRA drafters weren’t satisfied with ordinary strict scrutiny from the free exercise cases. They added a more onerous burden on the government to prove that the law at issue is not just narrowly tailored, but rather is the least restrictive means for this believer. That makes a significant difference, according to the Court.

This leap in the tailoring requirement is often ignored, because people are taken in by the statute’s title and the fact it invokes a “return” to Sherbert v. Verner and Yoder v. Wisconsin. But neither of those cases, while requiring a compelling interest test, imposed the “least restrictive means” test on the government. (And, in truth, Yoder’s application of even ordinary strict scrutiny to a neutral, generally applicable law is the exception that proves the rule.)

The difference between narrow tailoring and least restrictive means is significant, according to the Court. “Narrow tailoring” means that the law is well-tailored to the government interests it is supposed to serve. It does not mean that the means must be specifically tailored to each individual claimant, however. For narrow tailoring, the government does not have to prove that it has considered and rejected all less restrictive alternatives.

Proving a “least restrictive means” is significantly more difficult for the government. “Least restrictive means” means that the law must be tailored to this particular believer. As Justice Powell stated in 1980, and it still remains true, “this ‘means’ test has been virtually impossible to satisfy,” as Justice Powell said in Fullilove v. Klutznick. The Court has not applied this onerous least restrictive means test in a First Amendment free exercise case, as it pointed out in Boerne v. Flores. (True, the Court mentioned the phrase in Thomas v. Review Board, but did not apply it and no majority has invoked it again in a free exercise case, including in the one case applying strict scrutiny after SmithChurch of Lukumi Babalu Aye v. City of Hialeah.)

When the government’s burden is increased to the “least restrictive means” test, the believer has a high likelihood of success, and the people protected by the law have a low likelihood of protection.