Law Review: Making State Religious Freedom Restoration Amendments Effective

Making State Religious Freedom Restoration Amendments Effective
James W. Wright Jr., 61 Ala. L. Rev. 425 (2010)

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In 1990, the Supreme Court abandoned the compelling interest test, replacing it with the rule that laws could not burden religion if they were generally applicable and neutral to religion. This abandonment highlights the concerns outlined above: with so many laws being passed on so many levels, how could people protect themselves from government interference with their religion? Particularly, how could minority religious groups prevent unreasonable government regulation of their religious exercise? In response to such concerns, twelve states passed Religious Freedom Restoration Acts (‘RFRAs’), statutes that reinstated the compelling interest standard for state government actions. This Note explores the practical effectiveness of the RFRAs and identifies two challenges facing RFRAs in the future. First, courts have continued to use a law’s general applicability as a factor that weighs against the aggrieved citizen in their RFRA analyses, essentially returning to the test that RFRAs were designed to eradicate. Second, some courts have adopted definitions of ‘substantial burden’ that are so stringent as to effectively bar plaintiffs from success on the merits of their RFRA claims. Before concluding, this Note will propose some moderate changes that current RFRA states may adopt and that states wishing to adopt RFRAs should take under consideration before drafting their statutes.