The Religious Freedom Restoration Act — Part 1

Many barefooters have a spiritual or religious component to their reason for going barefoot. There are many public accommodation laws (both state and federal) that ought to protect them when various businesses try to keep them out with the old NSNSNS excuse, but these laws are actually rather weak.

However, there is one such law, that applies in just a few very specific instances, with a fair bit of teeth in it: the Religious Freedom Restoration Act.

As most of us are aware, many classical religions see bare feet as special.

 

 

And there are other, more nature-oriented religions (e.g., neo-Pagans) for which barefootedness connects one to Mother Earth.

How protected are they by public accommodation laws? Somewhat, but not very. Most of those laws only require a reasonable accommodation when it comes to religion, and when push comes to shove, we all know that “Oh, just put on footwear for this short period of time so you don’t slice up your feet in our store” sounds quite reasonable. That’s not to say that the religious rationale cannot be used to intimidate a store manager, because it can. But if somehow it became a full-blown legal fight, I have my doubts that the religious barefooter would prevail.

(I should add that most legal tests of these laws have come in regards to religious accommodations in the employment sector, not access to stores and the like. The truth is, when it comes to access, most businesses are pretty accommodating to religious customers. But then most of them aren’t flouting a strong myth like NSNSNS.)

However, there is one federal law with some good teeth to it. Its weakness is that it only applies to a very limited set of cases.

The story begins when the Supreme Court started interpreting the Free Exercise Clause of the United States Constitution to require the strict scrutiny of laws impacting the exercise of religion. For “regular” laws, they only need be rationally related to a legitimate governmental interest. However, under strict scrutiny, the burden falls on the government to show that it has a compelling interest in restricting that exercise, and that the government has narrowly tailored that restriction (that is, targeted only what is truly necessary to satisfy the compelling governmental interest).

An example of a court ruling detailing this is Wisconsin v. Yoder, 406 U.S. 205 (1972), in which the Supreme Court said that Amish children could not be forced to go to school beyond the 8th grade in violation of their (and their parents’) religious beliefs.

These rulings were more-or-less overturned in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 US 872 (1990), a case regarding peyote usage by a Native American group. No way was the Supreme Court going to go against the war on drugs. They returned the free exercise clause to its previous status: there are no religious exemptions from a neutral (not written specifically against a particular religion), generally applicable law.

Then Congress sprang into action and passed the Religious Freedom Restoration Act (unanimously in the House and 97-3 in the Senate).

Here’s what it says (42 U.S.C. § 2000bb-1):

§ 2000bb-1. Free exercise of religion protected

(a) In general

Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section

(b) Exception

Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

This is some pretty powerful stuff. It restores the compelling interest test and the least restrictive means test. Furthermore, here’s the definition (42 U.S.C. § 2000cc-5) of “exercise of religion”:

The term “religious exercise” includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.

There is a weakness here, and cause for concern for some groups. It is only religions that get to use this “get-out-of-jail” card. Atheists or people with non-religious beliefs don’t get to use it.

Also note that, as originally written, it applied to all governments: federal, state, and local.

That was to change.

In 1997, the Supreme Court overturned part of the RFRA, with City of Boerne v. Flores, 521 US 507 (1997). They said that the RFRA did not apply against the states (and also local governments, which are part of the states).

Their reasoning was that the Free Exercise Clause did not require the compelling interest test; that was something extra required by Congress. When Congress was authorized under the Fourteenth Amendment to enforce civil rights enshrined elsewhere in the Constitution, that did not include the compelling interest test. Thus that standard could not be enforced against the States.

But it could be enforced against the Federal Government (and that includes all of the District of Columbia). So, as it currently stands, the Religious Freedom Restoration Act applies against the Federal Government.

What it means to barefooters, for instance, is that shoe rules such as I wrote about in How Officials Cheat — Part 2, in National Park buildings, cannot be applied to religious barefooters (theoretically—this has never been tested to my knowledge). The same probably applies to the rule for the Library of Congress, 36 CFR § 702.2(c)(11):

All persons using these areas shall comply with the rules in effect in the various public reading rooms, shall avoid disturbing other readers, and shall refrain from engaging in disruptive behavior, including but not limited to

(11) failing to wear appropriate clothing in Library facilities, including, but not limited to, footwear (shoes or sandals) and shirts.

(By the way, this rule was almost assuredly enacted because I lost my lawsuit against the Columbus Metropolitan Library — sorry about that.)

But there was a problem. When the lower courts started applying the RFRA, with its strict scrutiny, compelling interest test, and least restrictive means test, somehow the federal government won something like 85% of the cases brought before it.

This was ridiculous. In all other areas in which strict scrutiny applies, the government almost always loses. (The main example of this is Freedom of Speech cases, in which particular speech is being suppressed.)

What was going on? Well, the courts were finding all sorts of “compelling” governmental interests. It was kind of like how the court cheated in my Columbus Metropolitan Library case, and suddenly just declared that preventing me from stubbing my toe was a “substantial” governmental interest. (Slight exaggeration, but not by much.)

The courts took the attitude of, “Well, if we let everybody have an exemption from some law, there’s no point in having that law. So we won’t allow an exemption.”

So, that’s where things stood. Congress passed the strong-sounding RFRA, but the courts worked their way around it and allowed it to have little effect.

Maybe barefooters really need to be protected from themselves, and that really is compelling. So maybe we have very little protection for our religious beliefs after all.

But this entry is long enough, so I’ll resume this topic next time.