I. THE PRELUDE TO STATE RFRAS
II. AN INTRODUCTION TO STATE RFRAS
III. THE FAILURE OF STATE RFRAS
A. THE LACK OF STATE RFRAs
B. THE LACK OF STATE RFRA CASES
C. STATE RFRAs IN FEDERAL COURT
D. THE INTERPRETATIONS OF STATE RFRAs
E. NOTICE AND EXHAUSTION PROVISIONS UNDER STATE RFRAs
F. COVERAGE EXCLUSIONS UNDER STATE RFRAs
G. THE PROBLEM OF POST-ENACTMENT COVERAGE EXCLUSIONS
This symposium is organized around the twentieth anniversary of the Supreme Court's decision in Employment Division v. Smith. (1) Smith, as everyone knows, dramatically narrowed the scope of the Free Exercise Clause. But Smith also spawned a chain of events highly protective of religious liberty. It led to the passage of the Religious Freedom Restoration Act (RFRA), (2) the Religious Land Use and Institutionalized Persons Act (RLUIPA), (3) state-law versions of the Religious Freedom Restoration Act (state RFRAs), (4) as well as a reexamination of some state-level constitutional provisions relating to religious liberty. (5) These reactions have tempered Smith. Indeed, some might wonder about the net effect of it all. Four years ago, the Supreme Court decided Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal. (6) Gonzales gave RFRA such a vigorous interpretation that religious believers seemed almost better off now than before Smith, at least with respect to federal law. And with regard to state law, sixteen states now have state RFRAs--state-law analogues of the federal Religious Freedom Restoration Act, usually passed by state legislatures. (7) A number of others have state constitutional provisions interpreted to be more protective than Smith. (8) All told, that is about thirty states--well more than half--going beyond Smith. (9) Maybe then we can now all breathe easier. Maybe all those commentators quoting Mark Twain are right; maybe religious liberty has survived Smith relatively unscathed. (10)
But this optimism should be tempered. Gonzales matters. But of the laws that burden religious exercise, only a tiny fraction of them are federal ones. Most religious liberty disputes arise over state and local laws, where Gonzales does not apply. This limit on Gonzales's reach cannot be overstated. Being exempt from federal laws hardly matters if you can still be prosecuted for the same act under state or local ones. So for Gonzales to really mean anything, state and local governments must also choose to protect religious observance within their borders.
This is where things become more troublesome. While a bird's eye view of things may seem positive, a closer look reveals some disturbing trends. There is reason to doubt whether these state-level religious liberty provisions truly provide meaningful protections for religious believers. Sixteen states may have state RFRAs, but claims under them are exceedingly rare. (11) Lexis and Westlaw searches show that four states have never decided even a single case under their state RFRAs. Six other states have decided only one or two cases apiece. That is more than half of state RFRAs right there. And when state RFRA claims have been brought, they rarely win. (12) In most jurisdictions, plaintiffs have not won a single state RFRA case litigated to judgment. To be sure, some states have seen significant state RFRA litigation and there have been some very important victories. (13) But in many states, state RFRAs seem to exist almost entirely on the books.
Separate and aside from the numbers, the reasoning of the decided state RFRA cases also creates cause for concern. (14) Courts grossly misunderstand, and improperly heighten, the threshold requirement of a substantial burden on religious exercise. Courts regularly equate the strict scrutiny imposed by state RFRAs with rational basis review, sometimes quite explicitly--as if they lack the most basic understanding of what these state RFRAs are trying to do. …