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Bridget Griffith

Ms. Fillman and Ms. Russell

CAP 10

3 June 2019

Protecting Religious Freedom: Virginia’s Religious Freedom Restoration Act

Introduction

The protection of religious freedom is written into the first amendment of the U.S.

Constitution. For years it has been protected by court cases, such as ​Wisconsin v. Yoder.

However in 1990 the case of ​Employment Division v. Smith​ went in front of the Supreme Court.

The Court’s decision resulted in the limitation of religious freedom rights.

Employment Division v. Smith

This case of ​Employment Division v. Smith i​ nvolved a Native American man who was

fired from his job because he used peyote, an illegal drug, for religious ceremonies. He was then

denied unemployment benefits due to the reason of his firing. He brought the case, arguing that

his religious freedom was being violated by the denial of unemployment benefits. The Court

ruled against Smith because the regulation on unemployment benefits did not target a specific

religion. The ​Smith​ decision lowered the standard of review for religious freedom cases and

allowed the passage of laws or regulations that limited a person’s religious freedom as long as it

did not target a specific religion (Solove).

The Religious Freedom Restoration Act

Congress responded to the ​Smith ​ruling by passing the national Religious Freedom

Restoration Act or RFRA with a vote of 97-3 in the Senate and a unanimous voice vote in the
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House of Representatives in 1993. The RFRA increased the standard of review for cases

handling the infringement of religious freedom even if the law or regulation did not specifically

target one religion (“House Judiciary Subcommittee”).

Originally, the national RFRA applied to both state and federal laws, however in the case

of ​City of Boerne v. Flores,​ the Supreme Court ruled that the national RFRA could not be

applied to state and local laws. In response several states, such as Virginia, passed laws similar to

the national RFRA (Travis). The Virginia law states, “No government entity shall substantially

burden a person's free exercise of religion even if the burden results from a rule of general

applicability unless it demonstrates that application of the burden to the person is (i) essential to

further a compelling governmental interest and (ii) the least restrictive means of furthering that

compelling governmental interest”("§ 57-2.02."). This means that the government has to prove

that they have a compelling interest to infringe on an individual’s religious freedom even if the

law or regulation does not target a specific religion. In order to protect religious freedom rights

of minority religions, prisoners, and those seeking unemployment benefits, the Virginia

legislature must uphold the Religious Freedom Restoration Act.

Protecting Minority Religions

After the​ Smith​ decision and before the passage of the state and national RFRAs, cases

that previously would have been ruled in favor of a religious group or person instead were ruled

against them.

Pre RFRA

In ​Yang v. Struner,​ a medical examiner performed an autopsy on a young man’s body

even though it was against his parent’s religion. The court ruled in favor of the Yangs, protecting
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their religious freedom. After the ​Smith​ ruling however, the judge changed the ruling to match

the precedent set by ​Smith​ (Adamczyk).

Before the RFRA was passed religious freedom cases using the compelling interest test

had a 18 percent chance of ending in a favorable result for the religious group or person

(Adamczyk). This is due to the precedent set in​ Smith.​ According to a representative during

debate on the passage of the RFRA, the ​Smith​ decision caused incidents such as “autopsies being

performed on deceased Hmong and Jewish people despite their religious opposition to the

procedure; Amish people being required to mount safety lights on their buggies; and an

investigator being fired for refusing to investigate a particular pacifist group” (Key). These are

cases where members of minority religions had their freedom limited by the government and

were unable to fight this action because of the​ Smith​ ruling.

Post RFRA

After the RFRA was passed, the percent chance of a ruling in favor of the religious group

or person in a religious freedom case using the compelling interest test increased from 18 percent

to 31 percent (Adamczyk). These cases were ruled in favor of people such as the Yangs who

simply wanted to follow their religious beliefs. Another example is Iknoor Singh, who was a

student attempting to join the Army Reserve Officers’ Training Corps. He was prohibited from

joining unless he cut his hair, removed his turban, and shaved his beard. The ACLU used the

RFRA to fight for the religious rights of Singh (Melling). The Virginia RFRA must be upheld so

that it can help religious rights of people such as Singh and the Yangs.

RFRA in Prisons
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Religious freedom has often been diminished in prisons and ¨the difficulties of prison

administration create the potential for prisons to succumb to neglect, racism, and religious

intolerance and for prison officials to curtail inmates' rights not only when necessary, but also

when merely convenient” (Solove). By raising the level of scrutiny, the RFRA ensures this

balance. Religion is important in prison not just because it is protected by the first amendment,

but also because, “it is one of the best rehabilitative influences we can have” (Solove).

O'Lone v. Estate of Shabazz

The case of​ O’Lone v. Estate of Shabazz​ was used as precedent for cases involving

religion in prisons before the RFRA. Inmates worked outside of the prison during the day and

due to security they were not allowed to go back inside the prison while working. This meant

that Muslim inmates were unable to join a communal prayer. The court ruled in favor of the

guards. This decision made it easier to infringe on the religious freedom of inmates even if there

was not a high safety risk (Rachanow).

Application of the RFRA

Before the passage of the RFRA, ​O’Lone v. Estate of Shabazz​ was used as a benchmark

for the level of scrutiny in religious freedom cases in prisons. However, the RFRA has offered

new protections for inmates and ¨since the Supreme Court decided ​O'Lone​ in 1987, RFRA was

the only policy that had any positive or beneficial effect on the free exercise rights of prisoners”

(Rachanow).

In ​Alameen v. Coughlin III​, the RFRA was used to allow Muslim inmates to use dhikr

beads in order to pray. These beads, an important part of a prayer ,had been banned by prison

guards (Rachanow). In ​Luckette v. Lewis​, the court ruled using the RFRA that an inmate should
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be allowed to keep the ¼ inch beard that his religion required. The court decided that the beard

did not pose any legitimate security threats (Rachanow). Had the RFRA not been place during

these decisions, they both probably would have been decided in favor of the guards due to the

precedent set in ​O’Lone v. Estate of Shabazz​.

The RFRA not only helped diminish the impact of​ Employment Division v. Smith​, but

also limited the impact of cases such as ​O’Lone v. Estate of Shabazz​. The Virginia RFRA must

be upheld in order to protect the rights of inmates in state prisons just as the national law did in

the cases of ​Alameen v. Coughlin III a​ nd​ Luckette v. Lewis.

Unemployment Benefits

In the case of​ Employment Division v. Smith,​ the court ruled that employment benefits

could be denied to a Native American man who was fired for having peyote for a religious

ceremony (Solove). This set a precedent in unemployment benefit cases allowing the denial of

benefits to those who lost their jobs because of religious reasons. Since the passage of the RFRA,

there have been several cases where the court has protected the religious freedoms of those

seeking unemployment benefits (Key).

In ​Thomas v. Review Board of the Indiana Employment Security Division,​ the court used

the RFRA to say that government did not have a compelling interest to deny benefits to a

Jehovahś Witness. The man refused to create military weapons because it went against his

religious beliefs about war. He was fired and then denied unemployment benefits because the

agency decided he had quite for personal reasons (Key). He was denied government aid simply

because of his religious objections. Under the precedent set by the ​Smith​ decision this

infringement on religious freedom would be legal. However, with the passage of the RFRA, the
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court ruled in favor of the man.

Another example of the protections the RFRA gives to those seeking unemployment

benefits is​ Hobble v. Unemployment Appeals Commission of Florida​. A woman who had just

become Seventh Day Adventist told her employer that she would not be able to work from

Friday night to Saturday night due to her religion. Her employer allowed this at first but then

required her to work, even though it went against her religious beliefs. When she refused to

work, her employer fired her. Later, she was denied unemployment benefits because she had

been fired for “misconduct”. The court ruled that under the RFRA, the government didn’t have a

compelling interest to infringe on her religious freedom by denying her unemployment benefits

(Key).

Case such as ​Thomas v. Review Board of the Indiana Employment Security Division​ and

Hobble v. Unemployment Appeals Commission of Florida​ show how the RFRA has been used to

protect religious freedom. If the RFRA were to be repealed there would be no protection for

those seeking unemployment benefits while still meeting their religious obligations.

Claims of Discrimination

One of the main critics of the RFRA is that it gives businesses an exemption to

discriminate against members of the LGBTQ+ community and in some cases has been used to

defend child labor due to religious beliefs (Melling). The answer to this problem, however, is not

to repeal the entire law. There are other ways to prevent the RFRA from allowing discrimination.

The Do No Harm Act was recently introduced by Congress members to address problems in the

national RFRA. The bill currently says that the RFRA “should not be interpreted to authorize an

exemption from generally applicable law that imposes the religious views, habits, or practices of
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one party upon another” (Aviles). Essentially, the bill prohibits the RFRA from being used to

protect discrimination and child abuse. The Virginia legislature could pass a law similar to the

Do No Harm Act that would prevent the Virginia RFRA from being misused while still

protecting religious freedom.

Implications

The national and state RFRAs have impacted the religious freedom rights of people

across the country. Before Congress and several states passed RFRAs the rights of minority

religions, prisoners, and those seeking unemployment benefits were restricted due to the ​Smith

and ​O’Lone d​ ecisions. It is not only important that the national RFRA is upheld, state RFRAs

must be upheld due to the ruling in​ City of Boerne v. Flores.​ If state RFRAs are repealed, there

will be nothing applying a strict scrutiny to cases involving religious freedom at the state and

local level. Over the past years there have been attempts to repeal RFRAs across the country.

However, there are several groups still fighting for religious freedom rights. The best way to

protect the RFRA in Virginia is to write members of the state legislature to tell them of the

importance of the law and how the Virginia state legislature must not repeal the state RFRA due

to problems that can be solved by a law similar to the Do No Harm Act which offers protection

for religious minorities, prisoners, and those seeking unemployment benefits.

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Works Cited

Adamczyk, A., Wybraniec, J., & Finke, R. (2004). Religious regulation and the courts:

Documenting the effects of smith and RFRA. Journal of Church and State, 46(2),

237-262. doi:http://dx.doi.org/10.1093/jcs/46.2.237. Accessed 12 May 2019.

Aviles, Gwen. "Congressional Democrats Reintroduce the Do No Harm Act." NBCNews, 1 Mar.

2019, www.nbcnews.com/feature/nbc-out/congressional-democrats-reintroduce-do-no-h

arm-act-n978101. Accessed 16 May 2019.

​ ederal
House Judiciary Subcommittee on Constitution and Civil Justice Hearing: 3]. F

Information & News Dispatch, Inc, Washington, 2014​. ProQuest​,

https://search.proquest.com/docview/1535037451?accountid=1095. Accessed 17 May

2019.

Key, James E., "This Land is my Land: The Tension Between Federal use of Public Lands and

the Religious Freedom Restoration Act."​ The Air Force Law Review​, vol. 65, 2010, pp.

51-105​. ProQuest,​ https://search.proquest.com/docview/193311773?accountid=1095.

Accessed 17 May 2019.

Rachanow, Shelly S​. "The Effect of O'Lone v. Estate of Shabazz on the Free Exercise Rights of

Prisoners." Journal of Church and State, v​ ol. 40, no. 1, 1998, pp. 125-148.​ ProQuest,

https://search.proquest.com/docview/230012881?accountid=1095,doi:http://dx.doi.org/1

​ ccessed 17 May 2019.

0.1093/jcs/40.1.125. A

Melling, Louise. “The Religious Freedom Restoration Act Is Used to Discriminate. Let’s Fix It.”

ACLU​, 19 May 2016,

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https://www.aclu.org/blog/religious-liberty/using-religion-discriminate/religious-freedom

-restoration-act-used. Accessed 24 May 2019.

"§ 57-2.02. Religious Freedom Preserved; Definitions; Applicability;Construction; Remedies."

Virginia Law, law.lis.virginia.gov/vacode/title57/chapter1/section57-2.02/. Accessed 12

May 2019.

Solove, Daniel J. "Faith Profaned: The Religious Freedom Restoration Act and Religion in the

Prisons."​ The Yale Law Journal​, vol. 106, no. 2, 1996, pp. 459-491​. ProQuest,​

https://search.proquest.com/docview/198492728?accountid=1095. Accessed 17 May

2019.

Travis, Whitney. "The Religious Freedom Restoration Act and Smith: Dueling Levels of

Constitutional Scrutiny."​ Washington and Lee Law Review,​ vol. 64, no. 4, 2007, pp.

1701-1732​.ProQuest,​ https://search.proquest.com/docview/236353990?accountid=1095.

Accessed 17 May 2019.