Tag Archives: Topic: Religious Freedom Restoration Act (RFRA)

WSJ.com: The birth-control coverage mandate violates the First Amendment’s bar against the “free exercise” of religion. But it also violates the Religious Freedom Restoration Act. That statute, passed unanimously by the House of Representatives and by a 97-3 vote in the Senate, was signed into law by President Bill Clinton in 1993. It was enacted in response to a 1990 Supreme Court opinion, Employment Division v. Smith.

Religion Clause: In a little-noticed portion of his 73-page dissent, Judge Wynn rejected free exercise, RFRA and Establishment Clause challenges to the statute, saying . . .

The American Legion: On June 28, Liberty Institute in Dallas filed court papers alleging that the Department of Veterans Affairs (VA) and the director of the Houston National Cemetery, Arleen Ocasio, are engaging in “religious viewpoint discrimination” in violation of the First Amendment and the Religious Freedom Restoration Act. The American Legion will support the case as an amicus curiae (“friend of the court”) as soon as possible.

Organized RFRAFF: A Recommendation to the Louisiana Legislature on the Best Way to Accomplish a State Religious Freedom Restoration Act
Evan J. Bergeron, 12 Loy. J. Pub. Int. L 133 (2010)

“While differing interpretations of the federal constitution and state constitutions are rather commonplace, Louisiana’s first attempt to afford greater protection under the Louisiana Constitution’s Free Exercise Clause was not the best approach. Parts II and III of this comment will consider the history of the Smith and City of Boerne decisions and examine actions undertaken by other states similar to Louisiana’s. Part IV will discuss the legislative history of Louisiana’s proposed constitutional amendment, which failed to leave conference committee before the 2009 Regular Session’s adjournment, and policy and practical ramifications of the bill had it been enacted and ratified. Part V will suggest following the models of Florida and Texas as a more comprehensive approach for achieving what the proponents of this amendment sought to accomplish. Finally, Part VI will discuss the new act and its shortcomings in hope that the legislature will revisit the issue in the 2011 regular session.”

Religion Clause: “A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in McGill v. General Conference Corporation of Seventh Day Adventists . . . ”

The First Amendment and Eagle Feathers: An Analysis of RFRA, BGEPA, and the Regulation of Indian Religious Practices
Jessica L. Fjerstad, 55 S.D. L. Rev. 528 (2010)

“In 1990, the United States Supreme Court decided Employment Division v. Smith. This decision significantly changed the legal analysis of First Amendment claims under the United States Constitution, including Free Exercise Clause claims made by those practicing minority religions. Thus, the Smith decision affected the debate surrounding the possession of eagle feathers for religious purposes. Unless an individual has a government-issued permit, federal law prohibits the possession of eagle feathers. Currently, the United States Circuit Courts of Appeals have split as to the constitutionality of the permit system and the system itself strains from excess demand for eagle feathers. This article examines the complex legal issues associated with having both Indian and non-Indian religious practitioners as well as the procedural issues surrounding the federal permit scheme for possessing eagle feathers.”

Dramatically Narrowing RFRA’s Definition of “Substantial Burden” in the Ninth Circuit–The Vestiges of Lyng v. Northwest Indian Cemetary Protective Assocation in Navajo Nation et al. v. United States Forest Service et al
Zackeree S. Kelin and Kimberly Younce Schooley, 55 S.D. L. Rev. 426 (2010)

“A thorough examination of Navajo reveals that the Ninth Circuit’s narrow interpretation of ‘substantial burden’ stems from the overstated policy concerns articulated in the pre-Smith case of Lyng v. Northwest Indian Cemetery Protective Association and is inconsistent with the religious freedom protections found in Sherbert v. Verner and Wisconsin v. Yoder that RFRA sought to restore. Furthermore, the case exposes the tension that results when protection of land-based religious beliefs is evaluated in a nation built on an ownership-based Western approach to land. The Ninth Circuit seemed uncomfortable with the proposition of extending RFRA’s protections to the way in which Native Americans worship, i.e., where essential elements needed to practice these religions – land and other natural resources – are controlled by the government. As a result of what appears to be a policy-driven outcome, many more religious freedom claims outside the context of Native American religion will be cut off, as the triggering mechanism for application of the compelling interest test is now far more difficult to satisfy in the Ninth Circuit.”

North Carolina Family Policy Council: “Faced with increasing attacks from left-wing groups and their allies, the leaders of over 100 Protestant, Jewish and Catholic religious charities and organizations have added their signatures to a letter to Congress in which they defend the constitutional rights of faith-based groups to make hiring decisions based on religious beliefs. The letter, which was distributed to every member of the U.S. House and Senate on August 25, urges Congress ‘to oppose any effort to amend the Religious Freedom Restoration Act (‘RFRA’), to amend Title VII of the 1964 Civil Rights Act, or otherwise to dilute the right of faith-based social service organizations to stay faith-based through their hiring, including when awarded a federal grant.’”

PublicSquare.net: “The Religious Freedom Restoration Act was supposed to clarify issues of religious freedom. But did it make matters worse? Two experts in religious freedom law debate the issue.”