Religious Exemptions to Civil Rights Laws:

A Fine Line to Tread

Sometimes legislation intended by one branch of government to fill a void established by another
can have unforeseen and unintended consequences. One example of this is the Religious Freedom
Restoration Act (or RFRA), signed into law by President Clinton in 1993. This Act replaced a narrowly
defined exemption for religious employers who wanted to exercise their First Amendment rights through
discretion on employment-related issues, with a wide-ranging exemption for religious employers seeking
to evade burdensome government civil rights laws and regulations. Though it seems innocuous, RFRA is
an expansive, difficult-to-interpret statute that continues to justify deferential treatment of
discriminatory practices, such as allowing employers to opt out of providing contraception to employees
and fire employees because of their sex. For this reason, it remains bad public policy and should be
repealed to allow for more narrow exemptions on a case by case basis.

I. Passage of the Religious Freedom Restoration Act expanded the number of federal statutes and
administrative regulations that could be judged by the strict scrutiny test.

Prior to RFRA, the Court determined whether a law was applicable to religious entities by
determining if it was subject to rational or strict scrutiny.1 The former standard applied to all laws that
were non-discriminatory and that treat all who take the same action identically. If a law was subject to
rational scrutiny, the religious entity would have to follow it unless there was a specific exemption for that
organization in the law. If the law was discriminatory and treated entities differently based on religion, it
was subject to strict scrutiny. Here, the government had to prove that it “served a compelling interest”
and had tailored to the group it was enforced against and interest it was supposed to serve.
In areas of the law where the Court determined that the government had met its case, Congress
enacted case-by-case exemptions, narrowly tailored to specific cases that existed at the time. One
example of this is §702 of the Civil Rights Act of 1964, which permitted religious organizations to select
employees using religious criteria, even though doing so would constitute discrimination under Title VII. 2
This was to ensure that religious groups would have discretion when it came to determine their leadership
and governance, and that the government would not intervene.

1 SYMPOSIUM: RELIGIOUS ACCOMMODATION IN THE AGE OF CIVIL RIGHTS: The Case for Evidence-Based Free
Exercise Accommodation: Why the Religious Freedom Restoration Act Is Bad Public Policy, 9 Harv. L. & Pol'y Rev.
129, 130
2 Title VII of the Civil Rights Act of 1964, Pub. L. No. 88-352, § 702 (1964)
 This served as the standard up to 1963 when the Court established the Sherbert Test, which
required the government to demonstrate a compelling interest and that it was the least burdensome
regulation that could be tailored to that specific claimant.3 However, in Employment Division v. Smith
(1990), the Court reversed its earlier decision and decided to go back to the former standard outlined in
the First Amendment.4 This is what precipitated the Religious Freedom Restoration Act. Through this Act,
Congress intended to restore the Sherbert Test as a means for guarding lesser-known, religious entities
against government intervention.5 The imposition of RFRA also applied a wide-ranging, super-strict
standard on all legislation passed by the federal government that might affect religious institutions.

II. The opacity of RFRA has led to interpretation in the Courts that continually expands the religious
institutions covered by law, enabling religious organizations to evade federal civil rights laws and
redefine the separation of church and state.

One of the ways in which RFRA has contributed to the continual expansion of religious exempt
institutions covered by the law, has been the complicated jargon contained in the text of the law. The text
references no more than three constitutional law terms - “substantial burden,” “compelling interest,” and
“least restrictive means” - all of which have been interpreted widely by the Supreme Court, in ways that
go beyond their “Plain English” meanings.6 “Least restrictive means,” in particular, addresses a concept
that was not even in the original reading of the Free Exercise Clause of the First Amendment. In short, it
is a legislative invention meant to baffle the average lawyer and aid in the expansion of exempt
organizations and laws that might be undermined.
This has ultimately led to its application beyond the case it was originally meant to address. In
Employment Div. v. Smith (1990), the Court held that the State could deny unemployment benefits to
anyone fired for use of peyote for religious reasons.7 However, it has since been used in Hobby Lobby v.
Burwell (2014) and Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania (2020) as justification
for “religious corporations” to deny contraceptive benefits to individuals under the Affordable Care Act,
Masterpiece Cake Shop, Ltd. v. Colorado Civil Rights Commission Et Al. as justification for public businesses
to discriminate based on sexual orientation, and in Espinoza v. Montana Department of Revenue (2020)

3 Eugene Volokh, Religious exemptions - - a guide for the confused, The Washington Post, Mar. 25, 2014.
4 Religious Freedom Restoration Act, 42 U.S.C. § 21B (1993).
5 Ibid.
6 SYMPOSIUM: RELIGIOUS ACCOMMODATION IN THE AGE OF CIVIL RIGHTS: The Case for Evidence-Based Free

Exercise Accommodation: Why the Religious Freedom Restoration Act Is Bad Public Policy, 9 Harv. L. & Pol'y Rev.
129, 147
7 Employment Div. v. Smith, 494 U.S. 872, 874
as justification to expand state scholarship money to religious schools. 891011 In the next term, there is yet
another case Fulton v. City of Philadelphia, that will arguably be judged on the same standards as prior
cases, determining whether local governments have the right to deny a contract and public funds to a
religious organization that does not meet its standards for equal access.12

A. Religious organizations are not always the best judges as to what is good policy.

One might argue that giving the government the power to outline what religious exemptions
should apply to is a slippery slope towards violating the Establishment Clause’s prohibition against the
government establishing a religion and intervening in matters best left up to the organization itself. 13 But
this argument ignores the original intent of the RFRA - to ensure that the government did not discriminate
against less mainstream religions. 14 As time has gone by, however, more mainstream religions have used
RFRA to circumvent civil rights protections, in a way that goes against the original intent of the law. This
argument also ignores the fact that religious organizations have often used religion to justify practices
that have since become settled law. This includes discrimination against individuals in interracial
relationships, protection of religious entities against the mandatory reporting of sexual assault claims, and
other such practices. So then, what are some possible solutions that might address these issues?

IV. Solutions proposed in the past range from bills that would limit the use of RFRA in certain areas of
civil rights law, to amending the Civil Rights Act to include more language about religious exemptions.
However, the best solution is repeal of RFRA.

There are several possible solutions to the issues posed by balancing the free exercise of religion
with the government’s interests. These solutions range from amending or blocking the use of RFRA in
certain cases, to amending the Civil Rights Act so that it clearly defines what is allowable and what isn’t.
Bills proposed under the former include H.R. 3222 - the Do No Harm Act - and the original amendment to

8 Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 683

9 Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 207 L. Ed. 2d. 819, 824-825
10 Masterpiece Cakeshop, Ltd. V. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1720
11 Espinoza v. Mont. Dep’t of Revenue, 207 L. Ed. 2d 679, 683
12 Amy Howe, Opinion analysis: Court rules that Catholic elementary school teachers are “ministers,” cannot sue

for employment discrimination - SCOTUSblog (2020), https://www.scotusblog.com/2020/07/opinion-analysis-

court-rules-that-catholic-elementary-school-teachers-are-ministers-cannot-sue-for-employment-discrimination/.
13 John Weber, Chalk Talks – Protecting Against Discrimination or Violating the Freedom of Religion? Balancing

One of Americans’ Most Important Liberties, 46 J. Law. & Ed. (Issue 3) 415, 424 (Summer 2017).
14 Pat Tetreault & Jared Perkins, Balancing Religious Freedom and Equality under the Law (3 ed. 2018), Lesbian,

Gay, Bisexual, and Transgender Americans at Risk: Problems and Solutions.

California SB 1146.1516 While the former sought to block the use of RFRA in enforcing government
contracts, grants, agreements, or rewards terms, as well as in all matters denying “a person’s full and
equal enjoyment of government-provided goods, services, benefits, etc. The latter tried to do this at the
state level, with regards to religious colleges and universities that use Title IX religious exemptions to
discriminate against individuals. On the other hand, H.R. 5331 - the Fairness for All Act - seeks to amend
the Civil Rights Act so that it includes sexual orientation and gender identity, define the religious entities
exempt, and add protections against discrimination in adoption and foster care services, while
acknowledging the government’s right to withhold funds from states not in compliance.17
This said, the most equitable solution to address the issues that RFRA has raised would be to
repeal it [and the Religious Land Use and Institutionalized Persons Act, or RLUIPA].18 In its 2016 report,
“Peaceful Coexistence,” the US Commission on Civil Rights noted that “overly-broad religious exemptions
unduly burden nondiscrimination laws and practices.” 19 They also recognized that policymakers should
individually address exceptions to civil rights, in line with the Supreme Court’s ruling in Employment
Division v. Smith, where the Court pointed to existing exemptions passed by states for the religious use of
peyote. This means tailoring future exemptions as narrowly as possible, to avoid any unintended
consequences. Lawmakers should also clarify legislation so that it only applies to individuals and religious
organizations - not for-profit corporations - and “only to the extent that they do not unduly burden civil
liberties and civil rights protections.”

A. Establishing a clarity is tantamount to effective laws and the promotion of predictable and
consistent legal principles.

Clear legislation, though, isn’t always widely accepted. One argument against establishing a strict
standard is that it would be fairly easy to game by religious organizations seeking to evade federal civil
rights laws. While this is a valid point, it fails to recognize that the primary purpose of a law is to clearly
define what actions are allowed and not allowed. This, in turn, gives courts the ability to interpret a statute
by its “plain meaning,” leading to predictable and consistent legal principles. 20 An opaque law can only be

15 H.R.1450, 116th Cong. (2019-2020).

16 SB 1146, 2016-2017 Leg., Reg. Sess. (Ca. 2016) (Amended Senate 04/11/16)
17 H.R.5331, 116th Cong. (2019).
18 SYMPOSIUM: RELIGIOUS ACCOMMODATION IN THE AGE OF CIVIL RIGHTS: The Case for Evidence-Based Free

Exercise Accommodation: Why the Religious Freedom Restoration Act Is Bad Public Policy, 9 Harv. L. & Pol'y Rev.
129, 147
19 U.S. Commission on Civil Rights, PEACEFUL COEXISTENCE: Reconciling Nondiscrimination Principles with Civil

Liberties (Sept. 2016) at 26, 27.

20 Payne v. Tennessee, 501 U.S. 808, 827
understood by specialists in the field, leading to various interpretations by the Court and confusion on the
part of those who the law applies to.21 This point also detracts from the goal of finding a workable solution,
as there is more than one solution to this issue. While solutions like the Fairness for All Act are fairly
detailed, a general repeal of RFRA and return to the previous standard of the Courts interpreting the Free
Exercise Clause of the First Amendment, gives the Court deference to interpret a clearer standard on a
case by case basis.
In conclusion, the Religious Freedom Restoration Act is an opaque and wide-ranging statute that
continues to justify the discrimination of individuals who would normally fall under protections granted
to them by the federal government. Because of this, it is an example of bad policy enacted by Congress to
fill an assumed need and should be wholly repealed in place of exemptions for specific instances.

21SYMPOSIUM: RELIGIOUS ACCOMMODATION IN THE AGE OF CIVIL RIGHTS: The Case for Evidence-Based Free
Exercise Accommodation: Why the Religious Freedom Restoration Act Is Bad Public Policy, 9 Harv. L. & Pol'y Rev.
129, 146
 Additional References

Alexander Dushku & R. Shawn Gunnarson, Symposium: LGBT rights and religious freedom—finding a better way -
SCOTUSblog (2020), https://www.scotusblog.com/2020/06/symposium-lgbt-rights-and-religious-freedom-
finding-a-better-way/.

Andrew Koppelman, Supreme Court rulings make the world safer for both LGBT people and religious freedom, USA
Today, Jul 21, 2020. https://www.usatoday.com/story/opinion/2020/07/21/supreme-court-religious-
liberty-gay-lesbian-trans-people-column/5469039002/.

Carol Kuruvilla, The Supreme Court’s Landmark LGBTQ Rights Decision Didn’t Address One Crucial Thing, Huffington
Post, June 18, 2020. https://www.huffpost.com/entry/religious-liberty-lgbtq-rights-supreme-
court_n_5ee7ae6ac5b69e598c702154?.

Hillcrest v. City of Los Angeles, Jury Instr. LEXIS 2348 (2007)

Ian Millhiser, The Supreme Court seems likely to give religious employers a broad ability to discriminate, Vox, May
11, 2020. https://www.vox.com/2020/5/11/21254625/supreme-court-biel-morrissey-berru-ministerial-
exception-discrimination.

Justin Butterfield, Hiram Sasser, Reed Smith, The Parsonage Exemption Deserves Broad Protection. 16 Tex. Rev. L &
Pol. (Issue 2) 251, 272 (Spring 2012).

Lyle Denniston, Opinion recap: A solid “ministerial exception” (2012),

https://www.scotusblog.com/2012/01/opinion-recap-a-solid-ministerial-exception/.

Maggie Baldrige, New government report explores tension between religious liberty and civil rights (2016),
https://constitutioncenter.org/blog/new-government-report-explores-tension-between-religious-liberty-
and-civil-.

Paul Mirengoff, Supreme Court upholds religious freedom in two major cases | Power Line (2020),
https://www.powerlineblog.com/archives/2020/07/supreme-court-upholds-religious-freedom-in-two-
major-cases.php.

Redwood Christian SCHS. v. County of Alameda, Jury Instr. LEXIS 437 (2007)

Thomas C. Berg, Partly Acculturated Religious Activity: A Case for Accommodating Religious Non-Profits, 91 Notre
Dame L. Rev. 1341 (2016).

Thomas Berg & Douglas Laycock, Symposium: Espinoza, funding of religious service providers, and religious freedom
- SCOTUSblog (2020), https://www.scotusblog.com/2020/07/symposium-espinoza-funding-of-religious-
service-providers-and-religious-freedom/.

Thomas M. Messner, Can Parachurch Organizations Hire and Fire on the Basis of Religion without Violating Title
VII. 17 U. Fla. J.L. & Pub. Pol’y 63 (2006).

William P. Marshall, Extricating the Religious Exemption Debate from the Culture Wars, 41 Harvard J. L. & Pub.
Pol’y (Issue 1) 67, 77 (Winter 2018).