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
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
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
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