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RFRA as the standard for religious liberty

By Scott Tibbs, October 5, 2015

Where should the government defer to religious liberty, and when should it not? I got a couple interesting questions on Twitter that merit an answer. (See here and here.) The purpose of my previous post was not to establish where religion should "trump the law" but to establish the principle that if we value religious liberty (and we do not make the state into a god) there are certain areas where government should defer to people's religious beliefs. Now, where are those specific lines drawn?

I think the Religious Freedom Restoration Act (originally signed into federal law by President Clinton and then passed by a number of state legislatures) is a good standard. Basically, it boils down to this: If government passes a law (even one that applies generally to everyone) that violates someone's religious beliefs, the courts should apply "strict scrutiny" to that law to ensure that the law furthers a compelling state interest and is the least burdensome way to accomplish that compelling state interest.

Obviously, that standard does not and cannot foresee every single possible scenario. I could spend the next ten years writing two posts per day and not cover every single possible application of RFRA and whether certain laws meet both the "compelling state interest" standard and the "least burdensome" standard. Some laws (like speed limits) are obvious and easy. Many more are much more difficult and sometimes may even have to be decided on a case-by-case basis. My point is that "strict scrutiny" should be the standard. But RFRA should be the foundational standard for protecting religious freedom.

Unfortunately, RFRA should never have been needed in the first place. The First Amendment should have been the only RFRA we needed, until a poorly-reasoned Supreme Court decision inspired Congress to pass and Clinton to sign the federal law. The solution should not have been to pass a new law to direct the courts' interpretation of the First Amendment. The solution should have been to impeach judges and justices that did not submit to the strict scrutiny required by the First Amendment.