The recent Hobby Lobby case before the U.S. Supreme Court (see page 1 of the March 27 issue of The Alabama Baptist) has made more people aware of the acronym RFRA than any other time in the law’s more than 20-year history. RFRA stands for Religious Freedom Restoration Act. It was adopted unanimously in the House of Representatives and by a 97–3 vote in the U.S. Senate. Few major policy decisions have ever received such wide-ranging support. President Bill Clinton signed the bill into law Nov. 16, 1993.
One might well ask why the law’s title includes the word “restoration” since religious freedom is enshrined as an individual right in the U.S. Constitution. Stories abound of European settlers coming to the New World for religious freedom. Too often that meant freedom for them but not for others. The first official step toward religious freedom is dated 1636 when Roger Williams, then a Baptist, settled the Providence Plantation (now Rhode Island) and welcomed religious refugees fleeing from Massachusetts Bay Colony and other religious minorities.
On June 12, 1776, the Fifth Virginia Convention adopted the Virginia Declaration of Rights written by George Mason, which said, “All men are equally entitled to the free exercise of religion.” These words would guide James Madison, a member of that convention, a decade later as he compiled the Bill of Rights, amendments to the nation’s new Constitution designed to forever protect certain individual liberties. Chief among those protected liberties was freedom of religion.
The First Amendment to the U.S. Constitution guaranteed freedom of religion in two ways. First the government was prevented from passing any law related to the establishment of religion. Second government was prohibited from interfering with the free exercise of religion.
As with any law, it took time for the meaning and impact of that policy to be worked out. It was not until 1818 that the last established state church (Congregational Church in Connecticut) was disestablished. It was 1833 before Massachusetts stopped channeling public money to its state church (Congregational).
In time the U.S. Supreme Court settled on a position called the Sherbert Test, which banned laws that burdened (or limited) a person’s exercise of religion. Unfortunately that position began to crumble in the 1980s and completely collapsed in the 1990 case Employment Division v. Smith. In that case, the U.S. Supreme Court ruled 5–4 that religious freedom could be burdened by the government as long as the law was “neutral” and did not overtly discriminate against religious objectors.
Writing for the majority, Justice Antonin Scalia wrote that using the “compelling interest” position of the Sherbert Test would lead to “anarchy” and that religious minority groups would have to win their religious freedom at the ballot box.
The reaction was volcanic. Legal experts from the president of the American Civil Liberties Union (ACLU) to the dean of the Notre Dame Law School condemned the Smith decision as “a radical departure from the settled principles of American constitutional law.”
Born was a wide-ranging Coalition for the Free Exercise of Religion dedicated to overturning Justice Scalia’s flawed reasoning. Members included People for the American Way and the Traditional Values Coalition and Concerned Women for America. The ACLU sat with the Christian Legal Society. The American Jewish Congress joined with the American Muslim Committee.
More than 50 organizations including Southern Baptists and Mormons worked to change the law.
Chairing the Coalition was Oliver S. Thomas, general counsel for the Baptist Joint Committee on Public Affairs (BJC). In fact, the BJC was the catalyst in bringing together this wide-ranging group of affected parties.
From a historical standpoint, it is important to remember that Southern Baptists withdrew from the BJC and ceased all funding in 1991.
Yet in the months immediately following that action, the influence and stature of the BJC and its staff, including Thomas, were invaluable to Baptists everywhere and to the cause of religious freedom.
In its “Findings,” the Congress reported that the framers of the Constitution recognized the free exercise of religion as an unalienable right protected by the Constitution and that the Smith decision “virtually eliminated the requirement that government justify burdens on religious exercise(s).”
The purpose of RFRA, the Congress said, was “to restore the compelling interest test (the Sherbert Test) and to guarantee its application in all cases where free exercise of religion is substantially burdened.”
The almost unanimous vote in both the House and Senate was one of the most public rebukes of a Supreme Court decision in constitutional law.
But no right is absolute, not even religious freedom. Government can still limit religious freedom if it can demonstrate a compelling interest. However, when it does it must do so in the least restrictive way.
So we come full circle back to the Hobby Lobby case and its claim that providing four birth control options that are known to cause early abortions is a violation of the religious freedom of the owners of the business.
Now the judges must determine if providing the four options is a compelling government interest and, if so, is forcing employers to provide the options the way least restrictive to religious freedom.
Numerous other voices claim threats to religious freedom. In fact, some observers contend religious freedom faces greater challenges today than at any time in the nation’s history.
It is important to remember that such claims can be made because of the limitations placed on government by the Religious Freedom Restoration Act. Had the Smith decision been allowed to stand, there would be no Hobby Lobby case. A “neutral” government policy would be the law of the land, and this nation would have taken a giant backward step away from religious freedom.
In November 2013 the Freedom Forum Foundation sponsored a conference marking the 20th anniversary of RFRA. The conference recognized Thomas as chairman of the Coalition for the Free Exercise of Religion and Douglas Laycock, an author of RFRA and now a law professor at the University of Virginia.
It is appropriate for all of us to say thank you to these men, to the Baptist Joint Committee on Religious Liberty (BJC’s current name) and to all who played a part in making RFRA the law of the land and for helping restore religious freedom after the Smith decision.
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