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Virginia Enacts Religious Freedom Law

by Paul Rasor, Center Director

In 2007, the Virginia General Assembly enacted a law intended to strengthen religious freedom in Virginia. The law, H 3082, provides (with some exceptions) that no branch of state or local government may "substantially burden a person's free exercise of religion" unless the burden is "essential to further a compelling governmental interest" and is "the least restrictive means" of furthering that interest. This means that the government must have a very strong reason for adopting a law or policy that interferes with religious free exercise.

But why is this law needed at all? Isn't free exercise of religion adequately protected by the First Amendment to the U.S. Constitution? The short answer is "No."

Until 1990, when someone claimed that the government—state or federal—improperly interfered with her First Amendment free exercise rights, the U.S. Supreme Court applied the so-called "strict scrutiny" test to evaluate the claim. This is the most demanding of the tests used in litigation involving fundamental constitutional rights, and it is basically the same as the standard adopted in the new Virginia law: the government must show a "compelling interest" and the law must be "narrowly tailored" or be "the least restrictive means" available to achieve that interest.

Despite this rigorous standard, during the past half-century the Supreme Court has upheld religious free exercise claims in only two instances.  In a series of cases going back to 1963, the Court ruled that individuals who left their jobs for religious reasons could not be denied unemployment compensation. And in a 1972 case, the Court ruled that the Amish could claim a free exercise exemption from compulsory school attendance laws for children over age fourteen. In legal terms, the governmental interest was not compelling enough in these cases to justify the burden placed on religious practice by enforcing the laws.

However, in every other context in which someone sought an exemption from state or federal law on religious grounds—Sunday closing laws, tax laws, labor laws, military dress requirements, prison regulations—the Court refused. Still, the principle is important. The "strict scrutiny" test forces the government to think about the impact its laws might have on religious practices, and it holds the government to a very high standard when it takes action that interferes with this basic right.

This approach to free exercise law changed dramatically in 1990. In the case of Employment Division v. Smith, the Supreme Court abandoned the strict scrutiny test and held that "the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability." This means that as long as the government does not target a particular religion, a law or policy cannot be challenged on free exercise grounds no matter how big a burden it imposes on one's religious practices. In other words, the Court rejected the very possibility that the First Amendment might require a religious exemption in appropriate cases. Free exercise claims must now be framed in terms of some other constitutional right, such as freedom of speech or equal protection of the laws.

In 1993, Congress responded by enacting the Religious Freedom Restoration Act. The RFRA revived the strict scrutiny test for free exercise cases, and was clearly intended to overrule the Smith decision. However, in 1997, the Supreme Court ruled that Congress exceeded its authority when it enacted the RFRA, and that the RFRA therefore could not constitutionally be applied to state laws. It did continue to apply to federal laws, however, and in 2006 the Supreme Court applied the RFRA to permit a religious exemption from federal drug laws.

This meant that federal laws and policies that substantially burdened religious practice had to satisfy the strict scrutiny/compelling interest standard, because this was the test required by the RFRA. State laws, however, did not have to satisfy this high standard, because the RFRA did not apply to them. And since most claims alleging an infringement of free exercise rights have involved state law, this left a gaping hole in the protection of religious freedom.

How might states fill this gap? There are two possibilities. First, state courts are free to interpret their own state constitutions differently than the Supreme Court interprets the U.S. Constitution. All state constitutions contain clauses protecting religious free exercise, and several state supreme courts have ruled that these clauses require use of the strict scrutiny test. Second, states may enact their own religious freedom protection laws, or mini-RFRAs, as these are known, and impose the higher standard by statute. This is the path Virginia and about a dozen other states have chosen.

Several issues remain unresolved. First, if the Supreme Court of Virginia follows the pre-1990 pattern of the U.S. Supreme Court, religious free exercise claims may rarely be upheld despite the stricter test. Only time will tell. Second, might this law allow employers or landlords, for example, to discriminate against women or minorities on religious grounds? My own answer is No; surely enforcing anti-discrimination and other civil rights laws is a compelling interest sufficient to override any claimed "right" to discriminate in such cases. But the law would have been clearer if this had been stated directly.

Finally, how do those of us concerned with religious freedom respond to the charge that a constitutionally protected religious exemption from the law would create chaos? Should we be allowed, on religious grounds, to ignore laws we don't like? Is this what we mean by religious freedom? These are issues worth thinking about.

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