Religious liberty after Gonzales: a look at state RFRAS.

• Author: Lund, Christopher C.
• Position: Religious Freedom Restoration Act of 1993 - 2010 Symposium Issue

1. THE PRELUDE TO STATE RFRAS II. AN INTRODUCTION TO STATE RFRAS III. THE FAILURE OF STATE RFRAS A. THE LACK OF STATE RFRAs B. THE LACK OF STATE RFRA CASES C. STATE RFRAs IN FEDERAL COURT D. THE INTERPRETATIONS OF STATE RFRAs E. NOTICE AND EXHAUSTION PROVISIONS UNDER STATE RFRAs F. COVERAGE EXCLUSIONS UNDER STATE RFRAs G. THE PROBLEM OF POST-ENACTMENT COVERAGE EXCLUSIONS IV. CONCLUSION **********

   This symposium is organized around the twentieth anniversary of the Supreme Court's decision in Employment Division v. Smith. (1) Smith, as everyone knows, dramatically narrowed the scope of the Free Exercise Clause. But Smith also spawned a chain of events highly protective of religious liberty. It led to the passage of the Religious Freedom Restoration Act (RFRA), (2) the Religious Land Use and Institutionalized Persons Act (RLUIPA), (3) state-law versions of the Religious Freedom Restoration Act (state RFRAs), (4) as well as a reexamination of some state-level constitutional provisions relating to religious liberty. (5) These reactions have tempered Smith. Indeed, some might wonder about the net effect of it all. Four years ago, the Supreme Court decided Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal. (6) Gonzales gave RFRA such a vigorous interpretation that religious believers seemed almost better off now than before Smith, at least with respect to federal law. And with regard to state law, sixteen states now have state RFRAs--state-law analogues of the federal Religious Freedom Restoration Act, usually passed by state legislatures. (7) A number of others have state constitutional provisions interpreted to be more protective than Smith. (8) All told, that is about thirty states--well more than half--going beyond Smith. (9) Maybe then we can now all breathe easier. Maybe all those commentators quoting Mark Twain are right; maybe religious liberty has survived Smith relatively unscathed. (10)

   But this optimism should be tempered. Gonzales matters. But of the laws that burden religious exercise, only a tiny fraction of them are federal ones. Most religious liberty disputes arise over state and local laws, where Gonzales does not apply. This limit on Gonzales's reach cannot be overstated. Being exempt from federal laws hardly matters if you can still be prosecuted for the same act under state or local ones. So for Gonzales to really mean anything, state and local governments must also choose to protect religious observance within their borders.

   This is where things become more troublesome. While a bird's eye view of things may seem positive, a closer look reveals some disturbing trends. There is reason to doubt whether these state-level religious liberty provisions truly provide meaningful protections for religious believers. Sixteen states may have state RFRAs, but claims under them are exceedingly rare. (11) Lexis and Westlaw searches show that four states have never decided even a single case under their state RFRAs. Six other states have decided only one or two cases apiece. That is more than half of state RFRAs right there. And when state RFRA claims have been brought, they rarely win. (12) In most jurisdictions, plaintiffs have not won a single state RFRA case litigated to judgment. To be sure, some states have seen significant state RFRA litigation and there have been some very important victories. (13) But in many states, state RFRAs seem to exist almost entirely on the books.

   Separate and aside from the numbers, the reasoning of the decided state RFRA cases also creates cause for concern. (14) Courts grossly misunderstand, and improperly heighten, the threshold requirement of a substantial burden on religious exercise. Courts regularly equate the strict scrutiny imposed by state RFRAs with rational basis review, sometimes quite explicitly--as if they lack the most basic understanding of what these state RFRAs are trying to do. If Gonzales demonstrated the upsides that can result from legislative codification of religious liberty, some of these state RFRAs now demonstrate the downsides.

   Pinpointing the source of this problem is difficult. Part of it, I suspect, lies with the attorneys. Attorneys who bring these cases are often not specialists. They have no reason to know about these obscure provisions of state law we call state RFRAs. So they quite naturally fail to plead state RFRA claims in the complaints they file, even where such claims would change the standard of review. (15) And when state RFRA claims are brought, attorneys naturally bring them in federal courts--even though federal courts, for technical reasons, often lack jurisdiction to hear them or power to order compliance with them. (16) Yet the problem runs deeper than just the attorneys. Judges who hear these cases sometimes do not know what to do with state RFRAs either. Some of it is judicial resistance to the values that state RFRAs embody. (17) More of it probably is judicial confusion. In any event though, the end result is the same. In most places, state RFRAs simply have not translated into a dependable source of protection for religious liberty at the state level.

   All this can be hard to understand. Tremendous resources have been spent on enacting state RFRAs. (18) Great hurdles had to be overcome. (19) Prominent scholars poured themselves into debates over these state RFRAs--over their constitutionality, (20) their drafting, (21) and what they should mean in various contexts: the workplace, (22) schools, (23) land use, (24) speech, (25) prisons, (26) and civil rights laws. (27) Whole pieces have been devoted to the effect of a single state's RFRA. (28) The U.C. Davis Law Review had a symposium with about a dozen papers on the state RFRA trend. (29) We discussed the changes that the state RFRAs would create; we disputed whether those changes would be good or bad. But a decade later, it is hard to see any real changes at all. In most states, state RFRAs have almost negligible effects. So far, they are the dog that has not barked. (30)

   This symposium focuses on Smith and the things to which it has led. But the entire story has not been written yet, and we do not know how it will end. Smith might yet be for the good. Gonzales has taught us that courts will go out on a limb to protect religious liberty much more often when they can trace their power back to some legislative authorization, however general. But at the state level, the story looks very different. However valuable it is to have religious liberty enshrined as an ideal on the books, it is far more important to have meaningful protections that can be successfully invoked by plaintiffs in the real world. These state RFRAs, for the most part, are simply not providing that.

1. THE PRELUDE TO STATE RFRAS

   Twenty years ago, the Supreme Court decided Employment Division v. Smith (31)--the case around which this symposium has been organized. Smith cast aside the strict scrutiny model for the Free Exercise Clause, which had been built up in cases like Sherbert v. Verner (32) and Wisconsin v. Yoder. (33) Under that old model, burdens on religious liberty had to be justified--the government had to show the regulation in question was backed by a compelling governmental interest and pursued by the least restrictive means. (34)

   Smith changed all that. It said that burdens on religion no longer needed any justification, as long as the laws in question were neutral and generally applicable. (35) Burdens on religious exercise now need not be supported by any evidence or logic. They do not need to be reasonable or even rational. They only need to be neutral and generally applicable. Take one recent case where a Jehovah's Witness was selected to be Director of Finance for a small town. (36) The quarterly budget meetings were held on Saturdays. Religiously obligated not to work on Saturday, her Sabbath, she suggested a slew of alternatives. The Saturday meetings could be held on other days, which had sometimes been done in the past. She could appoint someone else to attend the meetings in her place, as also had been done in the past. Surely, she said, there must be some reasonable accommodation out there where she could keep her job but miss these Saturday meetings. After all, they only lasted a few hours and happened just four times a year. (37) But the district court explained that she had gotten Smith all wrong: "For the employment requirement to be neutral and generally applicable, Defendants need not make, or even try to make, a reasonable accommodation for Plaintiffs religious practice." (38) The district judge seemed to think this was a good thing. But whether he is right about that or not, his sentence does accurately depict the Smith rule. After Smith, the government has the right to treat religious people unreasonably.

   Now Smith did not completely define the meaning of neutrality or general applicability--people still fiercely debate that. (39) But Smith makes clear that judicially mandated religious exceptions are now themselves exceptional. To the extent secular law clashes with religious obligation, religious obligation generally loses. The narrowest reading of Smith, though a common one, is that it forbids only intentional discrimination. (40) But a ban solely on intentional discrimination quickly becomes a recipe for neglect. Religious groups cannot really allege intentional discrimination if the government simply ignores them. But their claim looks better if the government first considers the negative impact its action will have on religious communities, but then continues on that course of action anyway. Neglect is the logical result of those incentives--after Smith, the best way of insulating a decision from judicial scrutiny under the Free Exercise Clause is by pretending not to see the impact it has on religious groups. Smith does not just allow that neglect; Smith rewards it. (41)

   But with each passing year, Smith becomes more and more entrenched. With...