Berkley Center

In City of Boerne v. Flores, the Supreme Court considered the constitutionality of the Religious Freedom Restoration Act (RFRA) of 1993. RFRA was enacted in direct response to the Court’s decision in Employment Division, Department of Human Resources of Oregon v. Smith, which significantly narrowed the grounds upon which a person could claim a religious-based exemption from a criminal or civil law. RFRA effectively overruled Smith by making it easier for plaintiffs to challenge government action that burdened religion. This was true even if that burden resulted from a rule of general applicability, unless the government could demonstrate that the burden was in furtherance of a compelling interest, and was the least restrictive means of furthering that interest. In City of Boerne, the Court declared RFRA unconstitutional because it exceeded the scope of Congress’s powers to regulate the states under the 14th Amendment. Generally this means that, at least as far as applied to state and local governments, the standard of review for free exercise claims is still governed by Employment Division v. Smith, which held that a state law of general applicability that merely incidentally burdens religion must only have a rational basis. However, a number of states have enacted their own versions of RFRA which accomplish the same goal as the federal RFRA. The applicability of the federal RFRA to the federal government has not yet been resolved by the Supreme Court, which has led some lower federal courts to uphold RFRA in challenges against the federal government.