Academic journal article Brigham Young University Law Review

"To the Person": RFRA's Blueprint for a Sustainable Exemption Regime

Academic journal article Brigham Young University Law Review

"To the Person": RFRA's Blueprint for a Sustainable Exemption Regime

Article excerpt

Introduction

The federal Religious Freedom Restoration Act (RFRA)1 seems to be a source of perpetual controversy. Perhaps this is because it was enacted in reaction to a previous controversy: the U.S. Supreme Court's decision in Employment Division v. Smith, which changed the legal landscape of religious claims.2 The Court's subsequent decision in City of Boerne v. Flores did nothing to quell controversy, declaring RFRA unconstitutional as applied to the states,3 and ignited debates by religious adherents about the need for state RFRAs across the country.4 Later, in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, RFRA's weakened status got a boost from the Court, which gave greater life to the specificity requirement of RFRA's "to the person" language.5 More recently, controversy swirled around RFRA's application to the contraceptive mandate of the Affordable Care Act, especially as the Court decided Burwell v. Hobby Lobby Stores, Inc.6 Scholars have criticized the Hobby Lobby decision as interpreting RFRA too broadly,7 an interpretation which will inevitably allow religious adherents to "impose their religious view of morally correct behavior on others[,]"8 "give license to discriminate!,]"9 benefit from "an unfair special privilege to ignore the laws everyone else must obey[,]"10 and turn the U.S. Code into "Swiss cheese" through exemptions.11 On the other hand, scholars have argued that RFRA, in practice, is actually under-protecting religious adherents12 and that a flood13 of discriminatory RFRA claims simply has not emerged.14 Much of this controversy, past and present, stems from inconsistent application of RFRA's statutory language and the Supreme Court's precedent. It is as if lower courts lost RFRA's blueprint for success: the plain language of the statute.

The Supreme Court's decision in O Centro attempted to put some of RFRA's inconsistent application to rest, admonishing courts that RFRA's "to the person" language requires the government to focus its compelling interest to "the particular claimant."15 Although some have argued that O Centro did little to advance the RFRA cause,16 this Article suggests just the opposite. Indeed, this Article's analysis of post-O Centro cases that discuss RFRA's "to the person" language shows that courts are finally focusing on the particular claimant and, thus, returning to RFRA's plain language. This claimant-specific focus has manifested in courts' evaluations of compelling government interests, as in O Centro, and has also spurred "to the person" focus on RFRA's least restrictive means requirement. Ultimately, this Article argues that a strict application of the "to the person" language to both RFRA's compelling interest and least restrictive means requirements will achieve a long-awaited, sustainable religious exemption regime by awarding the most narrow exemptions to sincerely burdened religious adherents, thereby allowing the otherwise important purposes of generally applicable statutes to proceed while meaningfully vindicating the religious liberties of minority groups.

In advancing this thesis, this Article takes the normative position that RFRA's standard is better suited to achieve American pluralism than the standard set forth in Smith. RFRA relieves governmental burdens upon the free exercise of sincere religious adherents, even where the burden is a completely incidental result of government action-Smith does not. RFRA reflects the American commitment to pluralism and inclusion by granting relief to the smallest quantity of sincere religious adherents-usually possessing minority views that get little attention in Congress - while respecting majoritarian initiatives advanced by that body and the executive. However, it should be noted that RFRA is not a cure-all approach to every issue of religious freedom.17 Rather, it functions as a backdrop, providing religious freedom coverage that other statutes fail to provide.

Part I of this Article discusses RFRA's historical background, touching on legislative history relevant to the "to the person" standard, and proceeds to view RFRA in eras of potency of judicial application. …

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