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

By Bean, Tanner | Brigham Young University Law Review, January 1, 2019 | Go to article overview

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


Bean, Tanner, Brigham Young University Law Review


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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

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

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.