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In its 30th year, Religious Freedom Restoration Act no longer enjoys near-unanimous support

The statute “reminds us that religious liberty is a civil liberty that once was valued by all Americans,” said Douglas Laycock, a University of Virginia law professor.

Douglas Laycock, distinguished professor of law emeritus at the University of Virginia. Credit: Courtesy.
Douglas Laycock, distinguished professor of law emeritus at the University of Virginia. Credit: Courtesy.

Three years after the Supreme Court ruled that Native Americans could not use peyote—an illegal hallucinogenic drug—in their rituals, the Religious Freedom Restoration Act of 1993 barred government entities from “substantially burdening a person’s exercise of religion.”

When the law was passed 30 years ago, it enjoyed widespread support. “People forget that RFRA passed unanimously in the House and 97-3 in the Senate,” Douglas Laycock, distinguished professor of law emeritus at the University of Virginia, told JNS.

“Bill Clinton, a Democrat, signed it enthusiastically,” he continued. “It had very broad bipartisan support, left and right, religious and secular, the ACLU [American Civil Liberties Union] and the National Association of Evangelicals, all the Jewish organizations and most of the Christian organizations.”

But that support is no longer widespread nor bipartisan, according to Roger Severino, vice president of domestic policy at the Heritage Foundation. “Sadly, the American left abandoned religious liberty for LGBT and abortion advocacy without exceptions, and they don’t seem to be backing off despite consistently losing at the Supreme Court,” Severino told JNS.

He considers the 1993 act “one of the most important laws for American civil rights,” which “restored the promise of the American founding fathers and the First Amendment by protecting the free exercise of religion from bureaucratic meddling.” 

Its protections are “especially important now,” when U.S. President Joe Biden “does not respect religious liberty,” he said.

Severino, who from 2017 to 2021 directed the civil-rights office of the U.S. Department of Health and Human Services, pointed to several U.S. Supreme Court cases, which he said were examples of the court protecting religious liberty at a time when the Democratic Party has become less tolerant of religious belief and practice.

Nathan Diament, executive director of the Orthodox Union Advocacy Center. Credit: Courtesy.

“The liberal side of the political aisle used to have a ‘live and let live’ attitude when it came to religious liberty,” he said. “Thankfully, we now have a Supreme Court that protects religious freedom.”

RFRA became a more partisan issue following the Supreme Court’s 2014 ruling in Burwell vs. Hobby Lobby Stores, according to Howard Slugh, founder and general counsel of the Jewish Coalition for Religious Liberty. The court found that the Affordable Care Act’s contraceptive mandate violated RFRA.

“This was the beginning of a turning point, where the issue under discussion was not peyote but whether a private company should be forced to provide abortion drugs even if it went against their religious conscience,” Slugh said.

He added that the Obama administration was “draconian” and unprecedented in the way it pushed the contraceptive mandate and insisted that no exceptions be provided.

‘A win for all faiths’

Religious minorities are most in need of RFRA because judges are not aware of how certain laws may come into conflict with religious practices, according to Slugh.

Roger Severino, vice president of domestic policy at the Heritage Foundation. Credit: Courtesy.

He cited several examples that are relevant to Orthodox Jews, in particular, including inmates, whose prison-issued garb mixes wool and linen—biblically prohibited as a forbidden mixture, called shatnez—a Yom Kippur eve ritual, called kaparot, in which a chicken is used for atonement purposes and is then slaughtered. The latter can run afoul of anti-competition laws, he said.

When the 1993 law passed, it protected the beliefs of minorities. It was “really the most important piece of legislation protecting religious freedom, especially for the Orthodox Jewish community,” Nathan Diament, executive director of the Orthodox Union Advocacy Center, told JNS.

Diament and colleagues have filed friend-of-the-court briefs in legal cases addressing religious freedom, and although the majority of those cases were about Christian practice, he thinks the OU’s work advances universal religious freedom, which also extends to Orthodox Jews.

“From an Orthodox Jewish perspective, RFRA has paved the way for many victories that are expanding religious freedom in important ways,” he said.

Slugh agreed. “Every win for one faith is a win for all faiths,” he said.

‘E peyote unum’

Howard Slugh, founder and general counsel of the Jewish Coalition for Religious Liberty. Credit: Courtesy.

The Religious Freedom Restoration Act has since been a source of unity in an otherwise politically divided nation, according to John Meiser, director of the Religious Liberty Clinic at Notre Dame Law School.

“For 30 years, RFRA has safeguarded the rights of people of all faiths, and its near-unanimous passage serves as an important reminder of our country’s shared commitment to religious freedom and religious pluralism,” he told JNS.

Laycock, the professor emeritus at the University of Virginia, told JNS that the 1993 law is a “historic statute that has protected believers of all faiths from burdens imposed by the federal government.”

“RFRA reminds us that religious liberty is a civil liberty that once was valued by all Americans and that it should be so valued again,” he said.

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