FREEDOM RESTORATION ACT OF 1993
Until 1990 courts interpreted the Free Exercise Clause as mandating
an exemption from a generally applicable statute, ordinance,
or regulation which burdened the free exercise of religion
unless the law was supported by a government interest
of the highest order which was effected by a legislative
program which had the least possible burden on the free
exercise of religion. See e.g., Sherbert
v. Verner, 374 U.S. 398 (1963) and Wisconsin
v. Yoder, 406 U.S. 205 (1972). In 1990, the
United States Supreme Court somewhat diminished Free Exercise
Clause exemptions from generally applicable laws.
See Employment Div. v. Smith, 485 U.S. 660 (1988).
Congress responded by passing the Religious Freedom Restoration
Act of 1993 and the Religious Land Use and Institutionalized
Persons Act of 2000. The United States Supreme Court
has declared the Religious Freedom Restoration Act unconstitutional
to the extent that it is applied against state and local
laws. City of Boerne v. Flores, 521 U.S.
507 (1997). It has continuing force and effect
against federal statutes and regulations. Many states
also passed statutes which to one degree or another restore
earlier protections for the free exercise of religion.
Those state statutes may be found at the Lewis Roca Rothgerber Religious
Liberty Archive's State Statutes.
Lewis Roca Rothgerber
Religious Institutions Group
U.S.C. § 2000bb. Congressional findings and declaration
The Congress finds that -
(1) the framers of the Constitution,
recognizing free exercise of religion as an unalienable
right, secured its protection in the First Amendment to
(2) laws "neutral"
toward religion may burden religious exercise as surely
as laws intended to interfere with religious exercise;
(3) governments should not
substantially burden religious exercise without compelling
(4) in Employment Division
v. Smith, 494 U.S. 872 (1990) the Supreme Court virtually
eliminated the requirement that the government justify
burdens on religious exercise imposed by laws neutral
toward religion; and
(5) the compelling interest
test as set forth in prior Federal court rulings is a
workable test for striking sensible balances between religious
liberty and competing prior governmental interests.
The purposes of this chapter are -
(1) to restore the compelling
interest test as set forth in Sherbert v. Verner, 374
U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972)
and to guarantee its application in all cases where free
exercise of religion is substantially burdened; and
(2) to provide a claim or defense
to persons whose religious exercise is substantially burdened
U.S.C. § 2000bb-1. Free exercise of religion protected
Government shall not substantially burden a person's exercise of religion
even if the burden results from a rule of general applicability,
except as provided in subsection (b) of this section.
Government may substantially burden a person's exercise of religion
only if it demonstrates that application of the burden
to the person -
(1) is in furtherance of a
compelling governmental interest; and
(2) is the least restrictive
means of furthering that compelling governmental interest.
(c) Judicial relief
A person whose religious exercise has been burdened in violation of this
section may assert that violation as a claim or defense
in a judicial proceeding and obtain appropriate relief
against a government. Standing to assert a claim
or defense under this section shall be governed by the
general rules of standing under article III of the Constitution.
used in this chapter -
(1) the term "government" includes a branch, department, agency,
instrumentality, and official (or other person acting
under color of law) of the United States, a State, or
a Documents subdivision of a State;
(2) the term "State" includes the District of Columbia, the
Commonwealth of Puerto Rico, and each territory and possession
of the United States;
(3) the term "demonstrates" means meets the burdens of going
forward with the evidence and of persuasion; and
(4) the term "exercise of religion" means religious exercise,
as defined in section 2000cc-5 of this title.
[Editor's Note: The Religious Land Use and Institutionalized Persons
Act (RLUIPA) of 2000, 42 U.S.C. § 2000cc-5(7)(A)
defines "religious exercise" as follows:
"The term 'religious exercise' includes any exercise
of religion, whether or not compelled by, or central to,
a system of religious belief."
RLUIPA further clarifies, at 42 U.S.C. § 2000cc-5(7)(B) that, among
other practices, "[t]he use, building, or conversion
of real property for the purpose of religious exercise
shall be considered to be religious exercise of the person
or entity that uses or intends to use the property for
Section 2000bb-3. Applicability
This chapter applies to all Federal and State law, and the implementation
of that law, whether statutory or otherwise, and whether
adopted before or after November 16, 1993.
Rule of construction
Federal statutory law adopted after November 16, 1993, is subject to
this chapter unless such law explicitly excludes such
application by reference to this chapter.
Religious belief unaffected
Nothing in this chapter shall be construed to authorize any government
to burden any religious belief.
Section 2000bb-4. Establishment clause unaffected
Nothing in this chapter shall be construed to affect, interpret, or in
any way address that portion of the First Amendment prohibiting
laws respecting the establishment of religion (referred
to in this section as the "Establishment Clause").
Granting government funding, benefits, or exemptions,
to the extent permissible under the Establishment Clause,
shall not constitute a violation of this chapter.
As used in this section, the term "granting",
used with respect to government funding, benefits, or
exemptions, does not include the denial of government
funding, benefits, or exemptions