Restoring rights to rites: the religious motivation test and the Religious Freedom Restoration Act.

• Author: Seeger, Steven C.

"[N]o liberty is more essential to the continued vitality of the society which our Constitution guarantees than is the religious liberty protected by the Free Exercise Clause ...."(1)

INTRODUCTION

The Religious Freedom Restoration Act of 1993(2) (the "RFRA," or the "Act") attempts to renew our national commitment to the free exercise of religion. Beginning with the adoption of the compelling state interest test in 1963,(3) the Supreme Court defended religious freedom by strictly scrutinizing any government policy that burdened a religious practice. The Court curtailed the protection afforded by the Free Exercise Clause, however, in the 1990 landmark case of Employment Division, Department of Human Resources of Oregon v. Smith.(4) Under the Court's new standard of review, the First Amendment no longer protects religious practices that conflict with a "`valid and neutral law of general applicability.'"(5)

The Smith decision sparked a remarkable public outcry.(6) An ecumenical coalition of religious and secular organizations voiced immediate opposition to the Court's new approach.(7) With overwhelming bipartisan support,(8) Congress responded by reinstating the compelling state interest test through the RFRA.(9)

Despite this effort to restore religious freedom, the Act has not fully achieved its remedial goals due to narrow judicial interpretations of the substantial burden requirement.(10) The statute requires a claimant to establish that the government "substantially burden[ed]]" her exercise of religion.(11) Once a claimant satisfies this requirement, the burden shifts to the government to demonstrate that the policy furthers a "compelling state interest" that cannot be achieved by a less restrictive means.(12)

The emerging RFRA case law has yielded three different interpretations of the substantial burden requirement. One approach, the "centrality test," requires a claimant to establish that the practice in question is "central" to her religious beliefs.(13) A related standard, the "compulsion test," limits the RFRA to practices that are religiously compelled.(14) Under this test, a claimant must demonstrate that the government infringes upon a practice that is mandated by her faith, or that the government requires the claimant to engage in conduct that is prohibited by her religion. A third approach, the "religious motivation test," interprets the provision more broadly: a claimant satisfies this standard by demonstrating that the government infringes upon a practice that is motivated by sincere religious belief.(15)

This Note argues that the religious motivation test best secures the religious liberty guaranteed by the Constitution and the RFRA. Part I examines the text and legislative history of the Act and establishes that Congress intended to protect religiously motivated practices. Part II argues that the free exercise case law prior to Smith, to which the RFRA explicitly appeals, did not require litigants to prove centrality of compulsion. Part III demonstrates that the religious motivation test protects the full spectrum of religious practices and religious groups, unlike the centrality test and the compulsion test. Part IV illustrates that the motivation test, unlike competing approaches, does not require courts to make judgments that exceed the bounds of their capacity and their authority. This Note concludes that a claimant who demonstrates a government infringement of a religiously motivated practice satisfies the substantial burden requirement of the RFRA.

1. STATUTORY INTERPRETATION THROUGH TEXT AND LEGISLATIVE HISTORY

   This Part examines the text and legislative history of the RFRA, and concludes that Congress intended to protect practices that are motivated by sincere, religious beliefs. Section I.A argues that the broad language of the Act manifests an intention to cover all forms of religious exercise. Section I.B explores the congressional discussions of the bill, and demonstrates that Congress expected that the statute would protect religious practices irrespective of compulsion or centrality.

   1. The Plain Meaning of the Provisions

      The text of the RFRA provides a natural point of departure for an interpretation of the substantial burden requirement.(16) The statute provides that the "[g]overnment shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability."(17) The drafters incorporated only one exception to this blanket rule: the state may substantially burden an exercise of religion only if the policy or program furthers a "compelling governmental interest" and is the "least restrictive means" of furthering that interest.(18) Thus, if a claimant establishes a substantial burden upon her religious practice, the government must satisfy the compelling state interest test, or else the statute entitles the claimant to "appropriate relief."(19)

      The words of the statute inform the present debate in two important respects. First, the RFRA extends to the full range of religious conduct that received protection under the Free Exercise Clause in the pre-Smith era. Congress ensured that the RFRA would apply to the same spectrum of religious conduct by defining "exercise of religion"(20) by reference to the Free Exercise Clause: "exercise of religion" means "the exercise of religion under the First Amendment to the Constitution."(21) This definition reveals that the RFRA protects religiously motivated practices to the extent that such conduct received protection under the Constitution in the years leading up to Smith. In short, RFRA claimants do not need to demonstrate centrality or compulsion if the Court did not impose such requirements in the pre-Smith case law.(22)

      Second, the absence of restrictive language in the text of the RFRA suggests that Congress intended to provide broad protection for religion.(23) On its face, the text manifests no intention on the part of Congress to cabin the statute to narrow subcategories of religious conduct. The Act extends to a person's "exercise of religion," a category of conduct that would appear to encompass all religious activities.(24) If Congress intended to protect only central or compelled practices, the drafters easily could have inserted language to reflect this crucial limitation. Yet Congress bypassed the opportunity to limit the scope of the Act, choosing rather to employ inclusive language that reveals no inherent restrictions. The absence of restrictive language in the statutory text supports the conclusion that Congress did not intend to confine the RFRA to central or compelled practices.(25)

   2. Legislative History

      The legislative history of the RFRA reveals that Congress expected the statute to apply to all religiously motivated practices. Section I.B.1 demonstrates that Congress specifically rejected the compulsion test as an overly restrictive interpretation of the statute. Section I.B.2 argues that the examples of impermissible burdens discussed during the hearings illustrate that the RFRA does not require a demonstration of centrality.

      1. The Compulsion Test

         The legislative history indicates that a claimant may satisfy her burden without demonstrating that the practice is compelled by her religion.(26) While considering the bill, Congress discussed the compulsion

         test because of the Act's perceived effect upon abortion rights. The House conducted subcommittee hearings on the bill in May of 1992, on the eve of the Court's decision in Planned Parenthood v. Casey,(27) which reaffirmed the constitutional right to an abortion. Reflecting uncertainty over the future of Roe v. Wade,(28) prolife members of Congress voiced concern that the RFRA could provide a statutory basis for the right to an abortion if the Court overturned Roe.(29) Prolife members of Congress initially expressed reservations about the bill because they believed that it would cover religiously motivated practices.(30) Representative Hyde and others observed that the bill would not be limited to compulsory conduct, but would extend to practices motivated by religion.(31) James Bopp, Jr., General Counsel to the National Right to Life Committee, shared the reservations of the prolife members, and voiced concern over the broad scope of the bill:

         [T]he primary scholarly champions of the bill insist that the RFRA must

         be interpreted as applicable to religious motivation, not just religious

         compulsion.... Given that the RFRA no where defines the phrase "burden a

         person's exercise of religion" and that it[ ]s scholarly proponents call

         for a "motivated by religion" interpretation, it is doubtless that a court

         called upon to make the decision of whether the RFRA reaches religious

         motivation would find that it does.(32)

         The possible ramifications of an expansive statute were not lost on the prolife community: a law that protected religiously motivated conduct might also protect religiously motivated abortions. Prolife participants thus advocated, without success, an amendment to the bill that would have restricted the RFRA to compelled religious practices.(33)

         Addressing these concerns about the scope of the bill, Representative Solarz, the chief sponsor,(34) confirmed that the RFRA would protect religiously motivated practices. During the hearings, Hyde directly asked whether the statute would cover practices that are religiously motivated, or only those that are religiously compelled.(35) Solarz responded, "I would be reluctant to limit it to actions compelled by religion, as distinguished from actions which are motivated by a sincere belief."(36)

         Hoping to keep the legislative history "as clear as possible,"(37) Solarz submitted an explanatory letter to the subcommittee following his testimony.(38) Solarz revealed that the drafters of the bill in tended to avoid two extremes. On the one hand, they did not want to limit the RFRA to practices that are compelled by religious belief.(39) Confining the legislation...