The Religious Freedom Restoration Act (RFRA)

The Religious Freedom Restoration Act (RFRA) was Congress’s response to a 1990 Supreme Court decision brought by drug rehabilitation counselors in Oregon. Those counselors were Native Americans who ingested peyote as part of their religious rituals. With possession of peyote being a felony under Oregon law, and believing that the use of illicit drugs was contrary to its mission, the rehabilitation organization for whom they worked fired the counselors.

The counselors then applied for uninsurance compensation from the state. When their applications were denied, they brought a lawsuit claiming that they should be granted the unemployment benefits since their firings were due to their adherence to their Native American religious beliefs (which included ceremonial use of that hallucinogen). Although this was a valid argument under preexisting Supreme Court decisional law, the Court denied their claim, ruling 6-3 that people don’t get exemptions from neutral laws just because they feel those laws conflict with their religious beliefs.

Congress responded to by passing RFRA, which statutorily returned the legal landscape to where it had been prior to that 1990 Supreme Court case: i.e., that unless there is a compelling interest (and laws narrowly tailored to serve that interest) the government may not act in ways that “substantially burden” an individual’s exercise of his or her religious beliefs. Since the passage of that statute, the Supreme Court has heard three relevant cases. All were decided in favor of the plaintiffs.

The first was very similar to the peyote case, involving a church that wished to import a different hallucinogenic substance for its religious ceremonies. Despite the clear violation of nation’s Controlled Substances Act, a unanimous Court held that the church should prevail under RFRA because the government had not demonstrated a compelling interest or narrowly tailored its laws to serve such an interest. The third case – involving a prisoner’s desire to follow his religious beliefs and grow a ½” beard – was just decided this year (2015). Again, a unanimous Supreme Court held in favor of the plaintiff, ruling that the government had not met its burden under RFRA in requiring clean-shaven prisoners.

The intervening case was Hobby Lobby, which is the most well-known. Decided in June 2014, that case concerned Christian employers who refused to support a health insurance plan because it paid for contraceptive drugs that could potentially cause a miscarriage. Again, the Court ruled in favor of the plaintiffs. That decision, however, was not unanimous. Of note is that the lack of unanimity had nothing to do with the interpretation of RFRA. It is only because four justices felt that the governmental interest in providing women with access to all approved contraceptive drugs was sufficiently compelling to require the plaintiffs to pay for that coverage that there was a dissent.

In view of the foregoing, our argument that RFRA forbids the government to inscribe “In God We Trust” on the money seems invincible. Just look at the relative burdens upon religious exercise. For the cases which the Supreme Court has heard, the burdens were:

  • Avoiding hallucinogens;
  • Remaining clean-shaven; and
  • Paying an insurance premium, a tiny fraction of which only possibly might pay for a drug that only possibly might result in fetal demise.

Those burdens need to be contrasted with being compelled not only to personally bear a religious statement that is completely contrary to the central tenet of one’s religious beliefs, but to assert that that contrary statement is one to which the bearer personally adheres. With the government clearly having no compelling interest in having those religious words inscribed on the money (and, in fact, having under the Establishment Clause a compelling interest to NOT have those words inscribed), a ruling in our favor under RFRA seems legally obligatory.

Of course, what is judicially obligatory at times does not coincide with what is legally obligatory, so the outcome of this case is still uncertain. Nonetheless, with plans to have this case heard in seven federal circuit courts of appeals, it seems likely that at least one three-judge panel will follow the law.