State RFRA Developments That Undermine Neutral, Generally Applicable Laws

StateCapabilities/Power/Interpreted to
AZ, FL, IL, LA, SC, TXstandard state RFRA
AL, CT
would have deleted or deletes “substantial” from “substantial burden”
RI, NM, MO
removed “substantial burden” and replaced with “restrict”
ID, KS, KY, OK, PA, OK, TN, VA
adds to government’s burden: “clear and convincing evidence”
MS
expands to include suits between private parties
MS
applies to businesses
MS
works against homosexuals or same-sex couples

The Never-Ending Spiral of Extreme Religious Liberty

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

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)

Rules: a. Believer must prove law imposes a substantial burden
b. A neutral, generally applicable law is constitutional unless irrational.
c. 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
d. the right is only good against the government (state action)

2. 1972

Wisconsin v. Yoder, 406 U.S. 205 (1972)
Rules: a. Believer must prove a substantial burden
b. Only case where a neutral, generally applicable law is subjected to strict scrutiny
c. Government must prove a compelling interest and that the law is narrowly tailored

3. 1993

Religious Freedom Restoration Act of 1993

Rules: a. Believer must prove a substantial burden
b. Government must prove a neutral, generally applicable law serves a compelling interest
c. Narrow tailoring is replaced by the more extreme “least restrictive means”
d. Relief permitted only “against a government”

4. 2000

Amendments to Religious Freedom Restoration Act (further expansion of rights for believers)

Rules: a. Expands definition of “religious exercise” to be: “any exercise of religion, whether or not compelled by, or central to, a system of religious belief,” including “the use, building, conversion of real property for the purpose of religious exercise” so long as the person, assembly, or institution “uses or intends to use the property for that purpose.”

5. 2000

Religious Land Use and Institutionalized Persons Act

Rules: a. Believer must prove a substantial burden
b. Government must prove a neutral, generally applicable land use or prison law serves a compelling interest
c. Narrow tailoring is replaced by the more extreme “least restrictive means”
d. Relief permitted only “against a government”

A.  Constitutionality

Articles

conscience article

Professor Marci A. Hamilton, New Rights and Odd Claims in the Hobby Lobby Oral Argument, Conscience Magazine (May 15 2015)

View as PDF

Lyle Denniston, Bold challenge to a law on religion, SCOTUSblog (Jan. 28, 2014, 3:15 PM), http://www.scotusblog.com/2014/01/bold-challenge-to-a-law-on-religion/

Lyle Denniston Reporter Posted Tue, January 28th, 2014 3:15 pm Email Lyle Bio & Post Archive » Bold challenge to a law on religion Arguing that Congress has gone too far to push aside the Supreme Court’s constitutional role in religion cases, a loose coalition of child welfare organizations, survivors of clergy child sexual abuse, and […]

The Unestablished Constitutionality of the Religious Freedom Restoration Act

The most fundamental Establishment Clause rule is that the government may not prefer religion over irreligion or non-religion. RFRA, however, “privileges religion over all other expressions of conscience.”

Cases and Testimony

CUTTER V. WILKINSON (03-9877) 544 U.S. 709 (2005) 349 F.3d 257, reversed and remanded.

A federal law prohibiting government from burdening prisoners’ religious exercise did not violate the First Amendment’s establishment clause. The Court held that, on its face, RLUIPA made an accommodation allowed by the First Amendment. The Court reasoned that the law was an effort to alleviate the “government-created burden” on religious exercise that prisoners faced. Nor did section three discriminate between mainstream and non-mainstream religions. The Court did point out that constitutional problems could arise if RLUIPA were enforced improperly and religious prisoners received favored treatment, or if religious exercise and security concerns were not properly balanced.

Professor Marci A. Hamilton, TESTIMONY TO THE SENATE COMMITTEE ON THE JUDICIARY S. 1248, The Religious Liberty Protection Act of 1998

This is my testimony in opposition to the Religious Liberty Protection Act (introduced after Boerne and never passed, but the testimony re RLPA was used to defend RFRA and RLUIPA)

Professor Marci A. Hamilton, THE RELIGIOUS FREEDOM RESTORATION ACT IS UNCONSTITUTIONAL, PERIOD, 1 U. Pa. J. Const. L. 1 (1998)

Boerne stands for the proposition that the Court’s role in interpreting the Constitution was not undermined or lessened as a result of the enactment of the Fourteenth Amendment. … The law is only triggered when religious conduct is burdened by a generally applicable and neutral law.

CITY OF BOERNE v. FLORES, 1996 U.S. S. Ct. Briefs LEXIS 761(BRIEF FOR PETITIONER)

The Religious Freedom Restoration Act is different from any other act Congress has ever passed. Never before has Congress attempted to define for itself the core meaning of a clause of the Constitution and then to force that interpretation on the courts in every case raising the constitutional issue. This Act is unconstitutional because it goes too far.

Articles

Obama Administration Calls The Supreme Court’s Bluff In Hobby Lobby, Think Progress

Exactly! There is no substantial in this burden!

Substantial Confusion on RFRA’s “Substantial Burden” Requirement?

Debates over RFRA sound like policy debates. Why? Because it turns courts into legislatures making their own laws for religious claimants. It is unconstitutional. http://rfrafolly.com/professor-marci-a-hamilton-the-religious-freedom-restoration-act-is-unconstitutional-period-1-u-pa-j-const-l-1-1998/

Professor Laycock Letter of academics in support of TX RFRA amendment

Professor Laycock in support of TX RFRA amendment (which would have removed “substantial” as modifier of “burden” and made the TRFRA a state constitutional amendment) Letter of academics.

Cases

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Articles

Professor Marci A. Hamilton, THE “LICENTIOUSNESS” IN RELIGIOUS ORGANIZATIONS AND WHY IT IS NOT PROTECTED UNDER RELIGIOUS LIBERTY CONSTITUTIONAL PROVISIONS, 18 Wm. & Mary Bill of Rts. J. 953 (2010)

[953] There is no doubt that the sexual abuse of children occurs within religious organizations and that these organizations too often operate to perpetuate cycles of abuse. There was a time when such a statement was counter-intuitive, but it is now merely a statement of fact. One difficult question to answer is how the law […]

Professor Marci A. Hamilton and Professor Rachel Steamer, THE RELIGIOUS ORIGINS OF DISESTABLISHMENT PRINCIPLES, 81 Notre Dame L. Rev. 1755 (2006)

SYMPOSIUM THE (RE)TURN TO HISTORY IN RELIGION CLAUSE LAW AND SCHOLARSHIP: THE RELIGIOUS ORIGINS OF DISESTABLISHMENT PRINCIPLES, 81 Notre Dame L. Rev. 1755(Copy citation) June, 2006 Reporter: 81 Notre Dame L. Rev. 1755 Length: 16994 words Author: Marci A. Hamilton* and Rachel Steamer+ [1755] Introduction The United States did not begin as a unified Christian culture, but […]

Professor Marci A. Hamilton, Religion, the Rule of Law, and the Good of the Whole: A View from the Clergy, 18 J. L. & Politics 387 (2002)

[387] I. Introduction “The separation of church and state” is a malapropism, in the sense that it awkwardly captures the constitutional arrangement between church and state. While it rightly captures the notion that church and state are to have distinguishable identities, and distinguishable interests, it fails to come to grips with the reality that religion […]

Professor Marci A. Hamilton, COMMENTARY: ON SCHOOL VOUCHERS AND THE ESTABLISHMENT CLAUSE: Power, the Establishment Clause, and Vouchers, 31 Conn. L. Rev. 807 (1999)

[808]  INTRODUCTION The Establishment Clause is a particular example of the Constitution’s separation of powers. The concept of separation of powers is often ascribed solely to the question of the proper relationship between the federal branches, but the entire Constitution is governed by the overarching principle that society is best served when centers of power are […]

Professor Ellis M. West, THE RIGHT TO RELIGION-BASED EXEMPTIONS IN EARLY AMERICA: THE CASE OF CONSCIENTIOUS OBJECTORS TO CONSCRIPTION, 10 J.L. & Religion 367

10 J.L. & Religion 367 Journal of Law and Religion 1993/1994 THE RIGHT TO RELIGION-BASED EXEMPTIONS IN EARLY AMERICA: THE CASE OF CONSCIENTIOUS OBJECTORS TO CONSCRIPTION Ellis M. Westa1 Copyright (c) 1994 by the Hamline University; Ellis M. West One of the more controversial decisions handed down by the Supreme Court in recent years was its decision in the case of Employment Division, Oregon […]

Professor Philip A. Hamburger, A CONSTITUTIONAL RIGHT OF RELIGIOUS EXEMPTION: AN HISTORICAL PERSPECTIVE, 60 Geo. Wash. L. Rev. 915 (1992)

60 Geo. Wash. L. Rev. 915 George Washington Law Review April, 1992 A CONSTITUTIONAL RIGHT OF RELIGIOUS EXEMPTION: AN HISTORICAL PERSPECTIVE Philip A. Hamburgera Copyright (c) 1992 by the George Washington Law Review; Philip A. Hamburger Did late eighteenth-century Americans understand the Free Exercise Clause of the United States Constitution to provide individuals a right of exemption from civil laws […]

Professor Marci A. Hamilton, COMMENTARY: ON SCHOOL VOUCHERS AND THE ESTABLISHMENT CLAUSE: A Reply, 31 Conn. L. Rev. 1001 (1999)

[1001]  It is not often that one gets such immediate (and lengthy) written responses to one’s work. It is both humbling and a blessing. My five interlocutors have offered me the opportunity to gaze at my own work as it is reflected in five different pools. I like some of what I see, do not recognize […]

Professor William P. Marshall, The Case Against the Constitutionally Compelled Free Exercise Exemption, 40 Case W. Res. 357 (1990)

ARTICLE: The Case Against the Constitutionally Compelled Free Exercise Exemption, 40 Case W. Res. 357 1990 Reporter: 40 Case W. Res. 357 Author: William P. Marshall [357]  FREE EXERCISE JURISPRUDENCE is unique in constitutional law. Because direct regulation of religious activity almost never occurs, the litigation surrounding free exercise addresses only incidental and inadvertent regulation of religious conduct. For […]

Articles

Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)

Framers believed safety, health, and welfare were exceptions to religious accommodation
in the early state Constitutions. (J. Scalia)

F. History

Professor Marci A. Hamilton, History of RFRAs (Blog #1)

How did we get here? This all started with the misbegotten Religious Freedom Restoration Act (RFRA). When it was passed, hardly anyone understood what it would do. It’s couched in constitutional legalese and, let’s face it, the name makes you want to salute. Unfortunately, the law was a bad idea then, but an even worse […]

Professor Marci A. Hamilton, TESTIMONY U.S. HOUSE OF REPRESENTATIVES COMMITTEE ON THE JUDICIARY SUBCOMMITTEE ON THE CONSTITUTION H.R. 1691: The “Religious Liberty Protection Act of 1999”

TESTIMONY U.S. HOUSE OF REPRESENTATIVES COMMITTEE ON THE JUDICIARY SUBCOMMITTEE ON THE CONSTITUTION H.R. 1691: The “Religious Liberty Protection Act of 1999” Marci A. Hamilton Professor of Law Benjamin N. Cardozo School of Law, Yeshiva University May 12, 1999 Thank you, Mr. Chairman, for inviting me to speak today on this important topic. I am […]

Professor Marci A. Hamilton, TESTIMONY TO THE HOUSE COMMITTEE ON THE JUDICIARY’S SUBCOMMITTEE ON THE CONSTITUTION, H.R. 4019: The “Religious Liberty Protection Act of 1998”

TESTIMONY TO THE HOUSE COMMITTEE ON THE JUDICIARY’S SUBCOMMITTEE ON THE CONSTITUTION H.R. 4019: The “Religious Liberty Protection Act of 1998” Marci A. Hamilton Professor of Law Benjamin N. Cardozo School of Law, Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 (212) 790-0205 (fax) hamilton02@aol.com June 16,1998 Thank you, Mr. Chairman, for […]