The Road to RFRA



The First Amendment to the Constitution begins, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Although the first segment, the “establishment clause,” was raised by Justice John Paul Stevens in his dissent in City of Boerne v. Flores,1 it was the line of cases decided under the second portion, the “free exercise clause,” that landed the case on the Supreme Court’s docket.2 When Congress reacted to the court’s 1990 decision of Employment Division of Oregon v. Smith3 by passing the Religious Freedom Restoration Act (RFRA) in 1993, it was attempting to claim a role in a stream of jurisprudence that stretched back to 1879 and the case of Reynolds v. United States.4


Unemployment Benefit Internal Revenue Service Literacy Test Fourteenth Amendment Free Exercise 
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  1. 2.
    The background and development of the free exercise clause is discussed in Michael McConnell, “The Origins and Historical Understanding of the Free Exercise of Religion,” Harvard Law Review 103 (1990): 1421–25, and Thomas Curry, The First Freedom: Church and State in America to the Passage of the First Amendment (New York: Oxford University Press, 1987).Google Scholar
  2. 5.
    The story of the background of this case is ably told in Sarah B. Gordon, The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 2002).Google Scholar
  3. 7.
    Donald Drakeman covers Waite’s handling of this case in detail in Church, State, and Original Intent (New York: Cambridge University Press, 2010), Chapter 2.Google Scholar
  4. 11.
    The arguments regarding incorporation are reviewed in Bryan Wildenthal, “Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866–67,” Ohio State Law Journal 68 (2007): 1509–626, and George Thomas, “The Riddle of the Fourteenth Amendment: A Response to Professor Wildenthal,” Ohio State Law Journal 68 (2007): 1627–57.Google Scholar
  5. 13.
    On this era, see Gerard N. Magliocca, “Why Did the Incorporation of the Bill of Rights Fail in the Late Nineteenth Century?” Minnesota Law Review 94 (2009): 102–39.Google Scholar
  6. 33.
    There are two excellent book-length studies of this case, Carolyn Long, Religious Freedom and Indian Rights: The Case of Oregon v. Smith (Lawrence: University Press of Kansas, 2000), and Garrett Epps, To an Unknown God: ReligiousFreedom on Trial (New York: St. Martins, 2001), on which the following paragraphs draw heavily.Google Scholar
  7. 37.
    These discussions are reported in Long, Religious Freedom, 204–12. The legislative history of the act can be found in Robert F. Drinan and Jennifer I. Huffman, “The Religious Freedom Restoration Act: A Legislative History,” Journal of Law and Religion 10 (1993): 531–41.Google Scholar
  8. 38.
    House Subcommittee on Civil and Constitutional Rights, Hearings on Religious Freedom Restoration Act of 1990, 101st Cong., 2nd sess., September 27, 1990, 13.Google Scholar
  9. 39.
    The first hearing is cited in the previous note. The other is House Subcommittee on Civil and Constitutional Rights, Hearings on Religious Freedom Restoration Act of 1991, 102nd Cong., 2nd sess., May 13 and 14, 1992.Google Scholar
  10. 40.
    Senate Committee on the Judiciary, Hearings on Religious Freedom Restoration Act of 1992, 102nd Cong., 2nd sess., September 18, 1992.Google Scholar
  11. 41.
    David M. Ackerman, Congressional Research Service Report for Congress, The Religious Freedom Restoration Act and the Religious Freedom Act: A Legal Analysis, April 17, 1992.Google Scholar
  12. 42.
    See the written statements of Mark Chopko, counsel for the U.S. Conference of Catholic Bishops, and James Bopp, representing the National Right-to-Life Committee in House, Hearings, 1992, 36–47 and 273–301.Google Scholar
  13. 50.
    House Committee on the Judiciary, Report to Accompany H.R. 1308, The Religious Freedom Restoration Act of 1993, Report 103–88, May 11, 1993, 8.Google Scholar
  14. 51.
    Senate Judiciary Committee, Report to Accompany S. 578, The Religious Freedom Restoration Act of 1993, Report 103–11, July 27, 1993, Additional Views of Senator Simpson, 20.Google Scholar

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© Jerold Waltman 2013

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