The following pertains to question 9 on FACT's 2008 Legislative Candidate Survey, regarding
the restoration of religious freedom in Tennessee.
Background
The question relates to support or opposition to the passage of a state law that, with respect to actions by the state and state laws, would have the same affect as the federal Religious Freedom Restoration Act (“RFRA”) has with respect to actions by the federal government and federal laws.
To understand what a state religious freedom restoration act would do, it is important to understand what the federal RFRA does with respect to federal law and federal actions.
The federal RFRA effectively restates the interpretation of the Free Exercise Clause found Sherbert v. Verner 374 U.S. 398 (1963). The Sherbert test effectively states that in a lawsuit in which a federal law of general application is applied to restrict someone’s religious practice, the court is to use the standard of
judicial review called “strict scrutiny” to determine if the Free Exercise Clause of the First Amendment to the United States Constitution has been violated.
In other words, in such a lawsuit, the court must first determine whether the person has a claim involving a sincere religious belief, and whether the government action is a substantial burden on the person’s ability to act on that belief; if these two elements are established, then the government must prove that it is acting in furtherance of a compelling state interest, and that it has pursued that interest in the manner least restrictive, or least burdensome, to religion.
The reason the federal act was passed was because, in the 1980s, the United States Supreme Court began to deny first amendment free exercise claims with respect to legislation that incidentally prohibited religiously mandatory activities as long as the ban was "generally applicable" to all citizens. The key case was Employment Division v. Smith, 494 U.S. 872 (1990), in which the Court upheld the state of Oregon's refusal to give unemployment benefits to two Native Americans fired from their jobs at a rehab clinic after testing positive for mescaline, the main psychoactive compound in the peyote cactus, which they used in a religious ceremony.
In response, groups like the ACLU and the Traditional Values Coalition joined forces to support RFRA, which would reinstate the Sherbert Test, overturning laws if "religious exercise is substantially burdened" by them, unless the law is the "least restrictive means" of furthering a compelling state interest. The act passed the House unanimously and the Senate 97 to 3 and was signed into law by U.S. President Bill Clinton.
By virtue of the United States Supreme Court’s decisions in City of Boerne v. Flores, 521 U.S. 507 (1997) and Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418 (2006), the federal RFRA only applies to federal statutes.
Since the federal RFRA applies only to federal statutes, a number of states have passed so-called mini-RFRAs, applying the rule to the laws of their own state. |
Religious Freedom 
