Religious Liberty after Gonzales: A Look at State RFRAs
South Dakota Law Review, Vol. 55, p. 466, 2010 (symposium)
32 Pages Posted: 27 Aug 2010 Last revised: 28 Sep 2016
Date Written: August 26, 2010
This symposium piece examines the state of religious liberty after the Supreme Court's decision in Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418 (2006), which gave a strong interpretation to the federal Religious Freedom Restoration Act (RFRA). While Gonzales offers religious believers significant protection from federal laws, most free exercise disputes happen at the state and local level, where Gonzales does not apply.
The future of Free Exercise therefore lies largely in the hands of the states. This piece examines what states have done with it, focusing particularly on state religious freedom restoration acts, called state RFRAs. Examining the field of state RFRA cases, this piece offers some interesting (though certainly preliminary) conclusions.
Perhaps most surprising is the paucity of cases decided under state RFRAs thus far. Sixteen states now have state RFRAs. But four states have never decided even a single case under their state RFRAs, and another six states have decided only one or two. In most jurisdictions with state RFRAs, plaintiffs have not won a single case litigated to judgment. Besides the numbers, the reasoning of these state RFRA cases often leaves much to be desired - courts routinely and improperly heighten the threshold showing of a "substantial burden" on religious exercise, and regularly equate the strict scrutiny standard to be the equivalent of rational basis review.
Beginning with those observations, this piece explains these curiosities and traces them back to their possible sources, along the way addressing the full range of interpretative and normative issues that these state RFRAs present.
Keywords: Free Exercise, Religious Freedom Restoration Act, RFRA, state RFRAs, Gonzales v. O Centro Espírita Beneficente União do Vegetal
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