Gerard V. Bradley

Pretty shortly we will know about the constitutionality of the Religious Freedom Restoration Act. The Supreme Court heard argument on that question in February, and a decision can be expected by term's end. Our Practice Group's breakout session at the Lawyers Convention took a look at RFRA, too. Our question was the public policy one: has RFRA lived up to expectations? Has it been good for religion? If not, why not? Five panelists addressed the question before an audience of about 65. Here is what they said.

Washington, D.C. attorney James Wilson summarized his position by stating that RFRA has been unequivocally bad for correctional facilities. Among Wilson's examples of frivolous prisoner litigation is the suit by a Florida inmate, currently on appeal, who claims that the central tenet of his religion requires masturbating in the presence of female corrections officers. This plaintiff sued, claiming that RFRA protected him from the disciplinary measures which he earned by witnessing to his faith.

Wilson argued that RFRA creates more problems than it solves in the prison context. Colorado has completely abolished all paid chaplain positions because RFRA has resulted in more chaplain requests from inmates, which in turn has placed an undue financial burden on the state. The state is now relying on volunteers. Other states have had similar problems. Wilson noted additional administrative and managerial (as well as financial) burdens upon states. One Florida case has cost the state (so far) twenty-two thousand dollars in legal fees.

Christian Legal Society legal director Stephen McFarland said that RFRA has lived up to its expectations. Though a few trouble spots remain, it has been good for religious freedom. One of the trouble spots is the "substantial burden" standard which was added to the act at the eleventh hour. This has unwisely raised the burden on individual claimants. McFarland related the example of a landlady who was told that she must rent an apartment to a cohabiting couple because their presence did not constitute a "substantial burden" to her religious beliefs.

A related issue is the debate over whether the tenet burdened must be a central tenet, or a required tenet, or whether the claimant's conduct need be only "religiously motivated." McFarland said that RFRA was intended to protect "religiously motivated" activities. Where the higher threshold is applied by courts, McFarland argued, it is partly a response to the proliferation of RFRA claims from correctional facilities. Another point which remains unclear is what exactly is a "compelling government interest." Courts are apt to give RFRA a narrow reading, McFarland said, because of questions about the Act's constitutionality.

Kevin Hasson, founder and head of the Beckett Fund, defended RFRA as "not perfect, but a hell of a lot better than nothing." Hasson drew the audience's attention to using RFRA in order to get bureaucrats' attention, to get them to respect religious freedom. The number of instances in which the potential of a RFRA lawsuit has brought bureaucrats into line is very great, Hasson continued, and that is a better measure of RFRA's value than the results of lawsuits. Bureaucrats are now aware that oppressing religion will lead to legal problems. RFRA is a better vehicle, for tactical reasons, than the Free Exercise Clause is, and is therefore more helpful to those whose rights are being violated than anything which came before it.

Catholic University Law Professor Robert Destro said that the problem with religious freedom is more with judges than with bureaucrats. Destro related his own unenthusiastic first reaction to RFRA, an underwhelmed response due to his belief that there was a hidden problem with anything that had garnered such broad support. But, Destro argued, RFRA is good in a political sense, that it has been helpful in making the civil rights community aware of religious issues. Destro did not think that the Supreme Court has ever taken religious issues seriously.

Destro pointed out that judicial protection of religious freedom had traditionally been guaranteed only to religious minorities. Oregon v. Smith, practically reversed by RFRA, brought this judicial focus to the surface, and allowed it to be vented and fixed. Indeed, Destro said, the move from Smith to RFRA was brought by an unusual outpouring of popular support for religious freedom for all believers.

Mark Tushnet of the Georgetown University Law Center said that he does not like RFRA. It's bad for religion because it tends to make religion dependent on the state. It would be better for religion to fight its own battles rather than to rely on the court system. Tushnet noted that RFRA supporters are likely to be disappointed by its application by the courts. He agreed with Destro that the Supreme Court has not taken religious freedom seriously. Tushnet said that the corollary to that is that the courts are not taking RFRA seriously either.

Why? "Judicial psychology." Tushnet opined that judges were, prior to Smith, uncomfortable with making "substantial burden" assessments, and RFRA has not changed this at all. He also responded to the earlier point about "bureaucrats" by asking how you can disconnect bureaucracy's action from litigation and its consequences, and by pointing out that eventually, bureaucrats will figure out that there's a constant threat of lawsuits in any case, so that defense costs will enter into their calculations in any case.

A very lively question and answer period ensued.

*Gerard Bradley is a professor at Notre Dame Law School. He also serves as Vice Chairman for Programs of the Religious Liberties Practice Group.