The Religious Freedom Restoration Act: Its Rise, Fall, and Current Status Page: 3 of 6
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None of the versions of RFRA considered by Congress addressed any specific free
exercise concern. Rather, the intent was to restore the strict scrutiny test as the general
standard governing the interaction of government and religious exercise. Because a
constitutional amendment would have been required to do that for the judicial
interpretation of the First Amendment, RFRA was crafted to impose the strict scrutiny test
as a statutory standard. As enacted, RFRA provided that a statute or regulation of
general applicability can lawfully burden a person's free exercise of religion only if it can
be shown to be "essential to further a compelling governmental interest and (to be) the
least restrictive means of furthering that compelling governmental interest." RFRA made
the standard applicable to governmental action at every level - federal, state, and local
- and allowed aggrieved parties to bring suit if they believed their exercise of religion
had been restricted by government in violation of the statutory standard.
As noted, it took 3 years to enact RFRA. In 1990 hearings were held on the House
bill (H.R. 5377) by a subcommittee of the House Judiciary Committee,' but no further
action was taken before the 101st Congress adjourned. In the 102d Congress RFRA was
re-introduced in slightly modified form (H.R. 2797, S. 2969), hearings were held in both
the House and the Senate,7 and the measure was reported late in the second session by the
House Judiciary Committee.' But disputes over the measure remained,9 and the 102d
Congress adjourned soon thereafter without any further action.
In the 103d Congress RFRA was again introduced in slightly modified form (H.R.
1308, S. 578). But by this time the politics of the bill had changed substantially.
President Clinton, unlike President Bush, came to office an avowed supporter of RFRA.
The Supreme Court had had the opportunity to overturn Roe v. Wade10 but had chosen not
6See Religious Freedom Restoration Act of 1990: Hearing Before the Subcommittee on Civil
and Constitutional Rights of the House Committee on the Judiciary, 101" Cong., 2d Sess.
(September 27, 1990).
7See Religious Freedom Restoration Act of 1991 and the Religious Freedom Act: Hearing
on H.R. 2797 and H.R. 4040 Before the Subcommittee on Civil and Constitutional Rights of the
House Committee on the Judiciary, 102d Cong., 2d Sess. (May 13, 1992) and Religious Freedom
Restoration Act of 1992: Hearing Before the Senate Judiciary Committee, 102d Cong., 2d Sess.
(September 18, 1992) (unprinted).
8See 138 CONG. REC. D1261 (Oct. 1, 1992) (daily ed.).
9During the 102d Congress several concerns were raised about RFRA by the National Right
to Life Committee and the U.S. Catholic Conference - that it might make it possible for women
to seek exemptions from restrictive anti-abortion statutes and to obtain abortions on religious
grounds, that it might allow challenges to the tax-exempt status of church organizations, and that
it might endanger public grants to church-related programs and institutions. Reflecting these
concerns, a competing measure was introduced (H.R. 4040) which embodied the same strict
scrutiny standard as H.R. 2797 but excluded three areas from the possibility of suit under the bill
(1) "the tax status of any person," (2) "the use or disposition of government funds or property
derived from or obtained with tax revenues," and (3) "any limitation or restriction on abortion,
on access to abortion services or on abortion funding."
0410 U.S. 113 (1973).
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The Religious Freedom Restoration Act: Its Rise, Fall, and Current Status, report, January 21, 1999; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc805654/m1/3/: accessed November 16, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.