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A Fluid Boundary: The Free Exercise Clause and the Legislative and Executive Branches

Exempting Religious Groups From General Requirements

Most religion-specific legislative accommodations, such as those discussed above, have focused on exempting religious individuals and organizations from particular laws. But in 1993, Congress departed from this more-focused approach by passing the Religious Freedom Restoration Act (RFRA), which generally protects people of faith from all laws that unduly burden their religious practices. The impetus for RFRA was the Supreme Court ruling in Employment Division v. Smith (1990), which made it much more difficult for religious people to gain exemptions from laws that interfered with or burdened their religious liberty. The Smith decision upheld the denial of unemployment compensation to two Native American drug rehabilitation counselors who had been fired for ingesting the hallucinogen peyote as part of a religious ritual. (A more detailed analysis of the Smith case is available in the Pew Forum’s A Delicate Balance: The Free Exercise Clause and the Supreme Court.) Viewing Smith as a dangerous limitation on religious freedom, Congress passed RFRA to restore the situation as it existed before Smith.

Prior to Smith, courts applied the “compelling interest” standard when considering free exercise claims. Under this standard, a law that “substantially burdens” a person’s ability to practice his or her religion cannot be constitutionally applied to that person unless the government demonstrates that this application of the law in question is necessary to achieve a “compelling government interest,” which includes only the government’s most powerful interests, such as protecting the nation’s security.


In Smith, however, the Supreme Court nearly eliminated the compelling interest standard by holding that the standard applies only to laws that specifically discriminate against a religious group or activity. All other laws, the court ruled, should be upheld against challenges based on the Free Exercise Clause if they merely further a “legitimate government interest,” which includes almost any government function, such as regulating for the public welfare. The upshot of Smith is that the government may substantially burden religious exercise as long as in doing so it treats religious practices just as it treats nonreligious ones.

The Smith decision sent shock waves through faith communities and interest groups that focus on religious liberty. In 1993, a broad coalition of these groups successfully lobbied Congress to pass RFRA, which sought “to restore the compelling interest test … and to guarantee its application in all cases where free exercise of religion is substantially burdened.” In other words, RFRA effectively overruled Smith and subjected all governmental action – federal, state and local – to the pre-Smith compelling interest standard.

City of Boerne v. Flores (1997)

Majority: Minority:
Ginsburg Breyer
Kennedy O’Connor
Rehnquist Souter


But Justice Stevens’ argument did not prevail, and the decision left RFRA intact as it applies to the federal government, as illustrated in Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal (2006). The case arose after the federal government suppressed the importation of hoasca tea, which contains a hallucinogen that is used by a small religious group as a sacrament. The federal government argued that while its suppression of the importation and use of the sacramental tea had substantially burdened the group’s religious exercise, this suppression was permissible under RFRA because the government had a compelling interest in protecting the group’s members from the tea’s harmful effects. Moreover, the government argued, permitting the group to import the tea would harm society in general, as it would undermine the government’s efforts to keep hallucinogens off the illicit drug market. But the high court found that the government lacked a compelling interest in denying the religious group access to the tea because the government did not prove either that the hallucinogen is dangerous when used in the quantities consumed by the group or that there is an illicit market for hoasca tea in the U.S.

Although the court found in favor of the religious group in O Centro Espirita, not many other religious organizations have prevailed under RFRA. Indeed, federal agencies have largely ignored the statute, and federal courts have often weakened RFRA by narrowly interpreting what constitutes a “substantial burden on religious exercise,” which is required to trigger the compelling interest inquiry. Indeed, courts have tended to find a substantial burden only when religious requirements directly conflict with legal requirements. For example, courts regularly reject prisoners’ RFRA claims if the challenged restriction interferes with optional religious practices, such as wearing a cross on a jewelry chain.

At the state level, a dozen states across a broad political spectrum responded to the Smith decision by enacting their own RFRAs. These state RFRAs apply the pre-Smith compelling interest standard to all government action taken within that state. But state courts have often limited state RFRAs by narrowly interpreting what constitutes a substantial burden on religious exercise.

Given the Boerne decision and the limited impact of the state RFRAs, Congress found that there was still a need for federal legislation applying the pre-Smith compelling interest standard, at least in some instances, to state and local governments. Congress hoped that if it created a law that applied this standard only in those circumstances in which religious liberty was most vulnerable, the Supreme Court would uphold the law as a permissible exercise of federal power. In 1998, Congress conducted hearings focusing on the regulation of land use and prisons, two areas known for generating many religious liberty disputes. Based on these hearings, Congress determined that many state and local governments, in regulating land use and prisoners, were not sufficiently sensitive to religious freedom and tended to discriminate against unpopular or unknown faiths.

Based on its findings, Congress enacted the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), which, as its name suggests, applies the pre-Smith compelling interest standard specifically to two types of regulations: those that concern the use of land by religious entities, such as churches, and those that deal with the exercise of religion by prisoners and others similarly confined to state institutions.

Cutter v. Wilkinson (2005)

Breyer Scalia
Ginsburg Souter
Kennedy Stevens
O’Connor Thomas

After several lower courts entertained challenges to RLUIPA’s constitutionality, with some upholding and others invalidating the statute, the Supreme Court agreed to hear one of these cases, Cutter v. Wilkinson (2005). The case arose after Ohio prison officials claimed that the statute’s institutionalized persons provision could not constitutionally apply to how the state treats people incarcerated for committing a crime. In the lower court, the prison officials made a federalism argument that had prevailed in Boerne – that Congress had violated the constitutionally required division of power between the state governments and the federal government. But by the time the case reached the Supreme Court, the Ohio prison officials had discarded that argument because the state accepts federal funding to run its prisons and Congress therefore has the authority under the U.S. Constitution’s Taxing and Spending Clause to regulate how Ohio treats its prisoners. Instead, the Ohio prison officials drew from Justice Stevens’ concurrence in Boerne and argued that RLUIPA’s institutionalized persons provision violated the Establishment Clause by favoring religion over nonreligion.

In its decision in Cutter, the high court unanimously rejected this Establishment Clause challenge on the ground that RLUIPA’s institutionalized persons provision removed “exceptional government-created burdens on private religious exercise.” Mindful of potential constitutional problems, however, the court’s opinion in Cutter emphasized two existing Establishment Clause limitations on how courts may apply the institutionalized persons provision. First, the high court noted, the Establishment Clause prohibits discrimination based on religious affiliation and thus requires courts to apply RLUIPA in a way that “does not differentiate among bona fide faiths.” Second, the justices pointed out, the Establishment Clause prohibits religion-specific accommodations from imposing unreasonable costs on third parties, and courts therefore may not grant exemptions under RLUIPA in a way that endangers prison authorities or other prisoners.

Lower courts have generally applied RLUIPA according to these two Establishment Clause limitations. For example, prisoners have been much more successful in pursuing RLUIPA claims when their requests have not raised security concerns than when their claims have raised such concerns.

While Cutter upheld RLUIPA’s institutionalized persons provision, the Supreme Court has not yet ruled on the constitutionality of the land use provision, which applies to laws governing how religious individuals and entities may use land. The reasoning in Cutter, however, would appear to apply with equal force to the land use provision. This would suggest that this provision also complies with the Establishment Clause as long as there is sufficient evidence that land use laws place special burdens on religious entities.

Although the Supreme Court has not yet taken a case dealing with the land use provision, many lower courts have decided such cases, and some of these lower court decisions have interpreted the language broadly to protect religious freedom. For example, in Sts. Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin (2005), the 7th U.S. Circuit Court of Appeals found that even land use regulation causing mere “delay, uncertainty and expense” can substantially burden religious organizations, thus triggering the compelling interest test.

Image credit: iStockPhoto

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