IX. State Religious Freedom Act Provisions

• Library: Litigating Religious Land Use Cases (ABA) (2016 Ed.)

IX. State Religious Freedom Act Provisions

In addition to the federal RFRA, 21 states have enacted their own version of the invalidated law that spurred enactment of RLUIPA. The Smith decision itself recognized that state legislators may provide greater protection for religious liberty than is provided by the federal Constitution. Moreover, as long as a state RFRA is worded so that it is clearly creating a new right and not merely telling the courts how to interpret the state constitution, there will be no violation of the separation of powers mandated by most state constitutions. At times, the claim is made that state RFRAs violate the federal Establishment Clause because they have the purpose and effect of advancing religion. The Supreme Court in similar context has never accepted such arguments. Moreover, these claims ignore the fact that the compelling interest test was applied to protecting religious liberty 50 years prior to 1990, yet the Supreme Court never ruled that this was a violation of the Establishment Clause.

Since 1993, 21 states have enacted state RFRAs.⁴⁸⁰ As of this writing, there have been no significant land use decisions based on the state law RFRAs. Nonetheless, these laws are intended to echo the federal RFRA, but are not necessarily identical to the federal law. Arkansas and Indiana are the most recent states to enact a RFRA, doing so in 2015. These laws have responsibly given religious people and institutions protection from an increasingly intrusive government bureaucracy. Despite the dire prediction of critics, these acts have not given rise to a flood of lawsuits, protected child abusers, exempted churches from all zoning laws, or negated other civil rights.

State RFRAs are a response to the significant loss of federal religious liberty protection over the last 15 years. They are passed by state legislatures to restore the standard that has historically protected religious freedom—a standard known as the "compelling state interest" test. This standard requires that any state action that substantially burdens the religious freedom of any person be justified by showing that the state act is the least restrictive means of protecting a "compelling state interest." Such interests would include the protection of life, liberty, property and health of others, and similarly strong community interests. The test requires the state to show that it has no less restrictive means of protecting its interests that avoids a conflict with...