In addition to the federal law creating the Religious Land Use and Institutionalized Persons Act, several states have enacted their own version of the law. Indeed, since 1997, a dozen State Religious Freedom Restoration Act (RFRA’s) have become law.
State Religious Freedom Restoration Acts are a response to significant loss of federal religious liberty protection over the last fifteen 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 included 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 religious exercise. It is clear that the compelling interest standard that RFRA’s institute has a stellar history of nearly half a century of fairly protecting the religious freedom of individuals and institutions. A state RFRA does not establish an unknown and uncertain standard, but rather restores a known and effective legal protection.
Why do we need a State RFRA’s? Prior to 1990, U.S. Supreme Court used the “compelling interest” test when deciding religious claims. However, in a 1990 decision, Employment Division of Oregon v. Smith, 494 US 872, 890 (1990), the Court tipped the scales in favor of government regulation. The Court threw out the “compelling interest” test which shielded our religious freedom from onerous government regulation for more than forty years. Sherbert vs. Verner, 374 US 398 (1963) The Smith decision reduced the standard of review in religious freedom cases to “a reasonableness standard.” In other words, if a state regulation is “reasonable” (which they nearly always are), a religious objector loses. While other fundamental rights (freedom of speech, press, assembly, etc) remain protected by the stringent “compelling interest” test, the court singled out religious freedom, reducing its protection to the weak “reasonableness” test.
In 1993 Congress attempted to remedy the Smith decision by enacting the Federal Religious Freedom Restoration Act. This act simply restored the “compelling interest” test in religious freedom cases. Four years later, the Federal RFRA was struck down as applied to state and local governments by the United States Supreme Court in the 1997 City of Boerne vs. Flore 521 US 507 (1997)case. In 2000, Congress remedied the City of Boerne decision by enacting the Religious Land Use and Institutionalized Persons Act Act 42 USC 200cc et sec.
State RFRA’s are still needed because federal law no longer provides the protection for religious liberty that it once did, and some states, such as Michigan, have inadequate religious freedom protection in light of state Court decisions. While Michigan’s constitution provides some protection, it does not have a clear and unequivocal basis for relief.