The Religious Freedom Restoration Act: Its Rise, Fall, and Current Status Page: 2 of 6
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clause of the First Amendment, which provides that "Congress shall make no law ...
prohibiting the free exercise (of religion)."3 The specific issue before the Court in Smith
was whether two Native Americans who had been fired from their jobs as drug counselors
after they were discovered to have ingested peyote in a ritual of the Native American
Church were eligible for state unemployment benefits. That issue the Court resolved in
the negative, 6-3. But in the process of reaching that conclusion the Court also altered the
standard of review generally used for free exercise cases, 5-4.
For the prior quarter of a century the Court had generally applied a strict scrutiny
test to government action alleged to burden the exercise of religion. That test required
the government to show that an action burdening religion served a compelling public
interest and that no less burdensome course of action was feasible. If the government
could not so demonstrate, the test required that the religious practice be exempted from
the government regulation or prohibition at issue.
In Smith the Court abandoned the strict scrutiny test (except in a few narrow
categories). It held that religiously neutral laws may be uniformly applied to all persons
without regard to any burden or prohibition placed on their exercise of religion. The free
exercise clause, the Court said, never "relieves an individual of the obligation to comply
with a 'valid and neutral law of general applicability' on the ground the law proscribes (or
prescribes) conduct that his religion prescribes (or proscribes)."' In the case at hand, that
new standard meant that the free exercise clause mandated no religious exemption from
Oregon's drug laws for Native American use of peyote in a sacramental ceremony and,
consequently, no eligibility for unemployment benefits of two Native Americans who lost
their jobs because of their participation in such a ceremony. More generally, the Court
asserted that the question of whether religious practices ought to be accommodated by
government was a matter to be resolved by the political process and not by the courts,
although it admitted that "leaving accommodation to the political process will place at a
relative disadvantage those religious practices that are not widely engaged in ...."
The Congressional Response. The specific result in Smith was upsetting to some.4
But it was the Court's virtual abandonment of strict scrutiny and relegation of free
exercise concerns to the political process that generated widespread alarm in the religious
community and elsewhere. That alarm quickly coalesced into a broad-based organization
known as the Coalition for the Free Exercise of Religion. Its efforts quickly resulted in
the introduction by bipartisan sponsors in both the House and the Senate of a proposed
"Religious Freedom Restoration Act of 1990" (H.R. 5377, S. 3254) and, 3 years later, of
the enactment of a modified version of RFRA into law.5
3The free exercise clause has been held applicable not only to actions by the federal
government but also to actions by state and local government. See Cantwell v. Connecticut, 310
U.S. 296 (1940).
4Congress in 1994 made the religious use of peyote by members of the Native American
Church legal under federal law. See P.L. 103-344 (Oct. 6, 1994); 42 U.S.C.A. 1996a. Oregon,
similarly, decriminalized the religious use of peyote after Smith. See Ore. Rev. Stat. 475.992(5)
5P.L. 103-141 (Nov. 16, 1993); 42 U.S.C.A. 2000bb et seq.
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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/m1/2/: accessed April 25, 2019), University of North Texas Libraries, Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.