The Religious Freedom Restoration Act: Its Rise, Fall, and Current Status Page: 1 of 6
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Updated January 21, 1999
The Religious Freedom Restoration Act:
Its Rise, Fall, and Current Status
David M. Ackerman
American Law Division
In City of Boerne, Texas v. Flores' the Supreme Court on June 25, 1997, held the
"Religious Freedom Restoration Act" (RFRA) to be unconstitutional as applied to the
states. Congress enacted RFRA in 1993 in response to an earlier Supreme Court
decision - Employment Division, Oregon Department of Human Resources v. Smith2
- which had construed the free exercise clause of the First Amendment to prohibit only
government action which intentionally burdens the exercise of religion. In RFRA
Congress sought to broaden the legal protection afforded religious exercise by
prohibiting government action that has the effect of substantially burdening religious
practice as well. But in Boerne the Court held that Congress lacks the power under
5 of the Fourteenth Amendment to apply RFRA to the states.
The Clinton Administration maintains that RFRA continues to be valid for the
federal government, and at least one federal appellate court has sustained that position.
In addition, in the 105'' Congress bills were introduced in both the House and the Senate
to re-apply RFRA's standards to the states using Congress' interstate commerce and
spending clause powers (S. 2148, H.R. 4019). A subcommittee of the House Judiciary
Committee ordered a modified version of H.R. 4019 reported to the full committee; but
further consideration fell victim to the Committee's impeachment inquiry.
This report briefly summarizes Smith, the legislative history of RFRA, the decision
in Boerne, RFRA's current legal status, and Congressional efforts to respond to Boerne.
Legislative and Political History
The Smith Decision. As noted, the genesis of RFRA lay in the Supreme Court's
decision in Employment Division, Oregon Department of Human Resources v. Smith,
supra. In that case, decided in 1990, the Court narrowed the scope of the free exercise
1521 U.S. __, 117 S.Ct. 2157 (1997).
2494 U.S. 872 (1990).
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The Religious Freedom Restoration Act: Its Rise, Fall, and Current Status, report, January 21, 1999; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc805654/m1/1/: accessed April 26, 2019), University of North Texas Libraries, Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.