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Religious Liberties Law in America


 The FIRST Amendment of the Constitution is Article I in the Bill of Rights

Article I.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
 

Press Release from Americans United
 Bad History: What the Right Says About the Constitution
Facts to Help You Set the Record Straight:
U.S. is NOT a "Christian nation."
 by Rob Boston
Americans United for Separation of Church and State
Silver Spring, Maryland
Far Right groups often make false claims about constitutional history in an effort to "prove" that separation of church and state was not intended by the nation's founders or that the United States was founded to be a "Christian nation." This article refutes these claims and others made by the Far Right.

Far Right groups frequently argue that separation of church and state is a myth or that the concept was not intended by the nation's founders. Several different Far Right groups spread this view,  including Pat Robertson's Christian Coalition, James Dobson's Focus on the Family, The  Rutherford Institute and TV preacher D. James Kennedy.

Much misinformation about the history behind separation of church and state may be traced to David Barton, a Texas-based propagandist who attacks separation of church and state in books and videos. Barton's materials contain numerous errors, distortions and half truths. His book The Myth of Separation, although heavily footnoted, is riddled with factual errors. Nevertheless, Barton's revisionist history is appearing with increasing frequency in Far Right circles and is leaching into the secular media by right-wing activists who write letters to the editor and op-ed columns regurgitating Barton's bad history.

 It is important, therefore, that pro-separation activists learn to respond to some of the Far Right's common distortions about separation of church and state. The following list of myths and facts was prepared by Americans United for Separation of Church and State with help from the Baptist Joint Committee on Public Affairs. It is by no means exhaustive but touches on some of the Far Right's most common claims. For help in responding to specific Far Right assertions not covered here, please feel free to contact the author.

MYTH: Separation of church and state is not in the U.S. Constitution. It is true that the literal phrase "separation of church and state" does not appear in the Constitution, but that does not mean the concept isn't there. The First Amendment says "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof...."
What does that mean? A little history is helpful: In an 1802 letter to the Danbury (Conn.) Baptist Association, the-president Thomas Jefferson declared that the American people through the First Amendment had erected a "wall of separation between church and state," echoing religious freedom advocate Roger Williams who a century earlier alluded to the "hedge or wall of separation between the garden of the church and the wilderness of the world."

James Madison, considered to be the Father of the Constitution and author of the First 
Amendment, said in an 1819 letter, "[T]he number, the industry and the morality of the priesthood, and the devotion of the people have been manifestly increased by the total separation of the church and state." In an earlier, undated essay (probably early 1800s), Madison wrote, "Strongly guarded... is the separation between religion and government in the Constitution of the United States."

As eminent church-state scholar Leo Pfeffer notes in his book, Church, State and Freedom, "It is true, of course, that the phrase 'separation of church and state' does not appear in the Constitution. But it was inevitable that some convenient term should come into existence to verbalize a principle so clearly and widely held by the American people....[T]he right to a fair trial is generally accepted to be a constitutional principle; yet the term 'fair trial' is not found in the Constitution. To bring the point even closer home, who would deny that 'religious liberty' is a constitutional principle? Yet that phrase too is not in the Constitution. The universal acceptance which all these terms, including 'separation of church and state,' have received in America would seem to confirm rather than disparage their reality as basic American democratic principles."

MYTH: Thomas Jefferson's 1802 letter to the Danbury Baptists was a mere courtesy and should not be regarded as important. Far Right activists have tried for decades to make light of Jefferson's "wall of separation" response to the Danbury Baptists, attempting to dismiss it as a hastily written note designed to win the favor of a political constituency. But a glance at the history surrounding the letter shows they are simply wrong.

Jefferson clearly saw the letter as an opportunity to make a major pronouncement on church and state. Before sending the missive, Jefferson had it reviewed by Levi Lincoln, his attorney general. Jefferson told Lincoln he viewed the response as a way of "sowing useful truths and principles among the people, which might germinate and become rooted among their political tenets."

MYTH: The Danbury Baptists wrote to Jefferson because they were worried that a national religion was about to be established.

Not true. The Danbury Baptists wrote to Jefferson because they were tired of being treated like second-class citizens in Connecticut and being forced to pay church taxes. The Baptists knew of Jefferson's views in favor of religious freedom for all and wrote to tell him thatthey hoped his views would be adopted throughout the country.

MYTH: Thomas Jefferson later said his "wall of separation" was meant to be one-directional and designed to keep "Christian principles" in government.

This statement is a complete fabrication and appears nowhere in Jefferson's writings; he never said it. Jefferson's writings indicate beyond a doubt that he believed separation would protect both church and state. If anything, most scholars believe Jefferson was more concerned about the church harming the state than the other way around.

 MYTH: The United States was founded as a Christian nation. Most of the first Europeans to arrive on our shores were religious dissenters who sought religious freedom, and many believed they were establishing some type of Christian utopia.

But many supported religious liberty only for themselves, and some of the early colonies were theocracies where only those who worshipped according to state orthodoxy were welcome. All but four colonies had some form of an established church.

Following the American Revolution, political leaders began to construct the new U.S. government. Although a minority clung to European notions of church- state union, a general consensus emerged that the new country should steer clear of officially established religion. States with government supported religions also began moving toward separation. Massachusetts, the last state to maintain an official religion, disestablished its state church in 1833.

During the Constitutional Convention, a minority faction favored some recognition of Christianity in the Constitution, but their views were overruled. Many framers had seen the dangers of church-state union in Europe and in the colonies; they wanted no part of such a system for the federal government.

Thus, the Constitution does not mention God, Jesus Christ or Christianity. In fact, the only reference to religion is in Article VI, where the founders provided that there could be no religious test for public office.

MYTH: The Supreme Court has declared that the United States is a Christian nation.

In the Supreme Court's 1892 Holy Trinity Church v. United States decision Justice David Brewer wrote that "this is a Christian nation." Brewer's statement occurred in dicta, a legal term meaning writing that reflects a judge's personal opinion, not an official court pronouncement that sets legally binding precedent. From the context of the quote, it is clear that Brewer only intended to acknowledge that Christianity has always been a dominant force in American life.

Brewer clarified his views in a book he published on the "Christian nation" concept in 1905. In the volume, Brewer argues that the United States is "Christian" only in the sense that many of its traditions are rooted in Christianity and rejects the notion that the nation's laws should be based on Christianity.

MYTH: The First Amendment's religion clauses were intended only to prevent the establishment of a national church.

If all the framers wanted to do was ban a national church, they had plenty of opportunities to state exactly that in the First Amendment. In fact, an early draft of the First Amendment read in part, "The civil rights of none shall be abridged on account of religious belief, nor shall any national religion be established...." This draft was rejected as too weak. The historical record shows clearly that the framers wanted to ban "multiple establishments," that is, a system by which the government funds or supports many religions on an equal basis.

Far Right groups are aggressively spreading myths like this and deceiving many well-meaning people with their anti-church and state separation propaganda. Activists who support the separation principle must respond promptly to these myths every time they appear.

 NOTE: This article is a condensed version of a piece that originally appeared in Church & State, 
March 1992, Vol. 45, No. 3.

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Copyright 1994 by Radical Right Task Force

Permission is granted to reproduce this publication in whole or in part.
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(202) 544-7636

 US Constitution

 

RLUIPA
UNITED STATES CODE ANNOTATED TITLE 42.
THE PUBLIC HEALTH AND WELFARE CHAPTER 21C--
RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT

Current through P.L. 107-19, approved 7-10-01

§ 2000cc. Protection of land use as religious exercise

(a)       Substantial burdens

(1)       General rule

No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution--

(A)       is in furtherance of a compelling governmental interest; and

(B)       is the least restrictive means of furthering that compelling governmental interest.

(2)       Scope of application

This subsection applies in any case in which--

(A)       the substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a rule of general applicability;

(B)       the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, even if the burden results from a rule of general applicability; or

(C)       the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved.

(b)       Discrimination and exclusion

(1)       Equal terms

No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.

(2)       Nondiscrimination

No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination.

(3)       Exclusions and limits

No government shall impose or implement a land use regulation that-

(A)       totally excludes religious assemblies from a jurisdiction; or

(B)       unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.

42 USCA S 2000cc-2

42 U.S.C.A. § 2000cc-2

UNITED STATES CODE ANNOTATED TITLE 42. THE PUBLIC HEALTH AND WELFARE CHAPTER 21C--RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS

Current through P.L. 107-19, approved 7-10-01

§ 2000cc-2. Judicial relief

(a)       Cause of action

A person may assert a violation of this chapter as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.  Standing to assert a claim or defense under this section shall be governed by the general rules of standing under Article III of the Constitution.

(b)       Burden of persuasion

If a plaintiff produces prima facie evidence to support a claim alleging a violation of the Free Exercise Clause or a violation of section 2000cc of this title, the government shall bear the burden of persuasion on any element of the claim, except that the plaintiff shall bear the burden of persuasion on whether the law (including a regulation) or government practice that is challenged by the claim substantially burdens the plaintiffs exercise of religion.

(c)        Full faith and credit

Adjudication of a claim of a violation of section 2 000cc of this title in a non-Federal forum shall not be entitled to full faith and credit in a Federal court unless the claimant had a full and fair adjudication of that claim in the non-Federal forum.

(d)       Omitted

(e)       Prisoners

Nothing in this chapter shall be construed to amend or repeal the Prison Litigation Reform Act of 1995 (including provisions of law amended by that Act).

(f)         Authority of United States to enforce this chapter

The United States may bring an action for injunctive or declaratory relief to enforce compliance with this chapter.  Nothing in this subsection shall be construed to deny, impair, or otherwise affect any right or authority of the Attorney General, the United States, or any agency, officer, or employee of the United States, acting under any law other than this subsection, to institute or intervene in any proceeding.

(g)       Limitation

If the only jurisdictional basis for applying a provision of this chapter is a claim that a substantial burden by a government on religious exercise affects, or that removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, the provision shall not apply if the government demonstrates that all substantial burdens on, or the removal of all substantial burdens from, similar religious exercise throughout the Nation would not lead in the aggregate to a substantial effect on commerce with foreign nations, among the several States, or with Indian tribes.

42 USCA S 2000cc-3

42 U.S.C.A. § 2000cc-3

 UNITED STATES CODE ANNOTATED TITLE 42. THE PUBLIC HEALTH AND WELFARE CHAPTER 21C--RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS

                                      Current through P.L. 107-19, approved 7-10-01

§ 2000cc-3. Rules of construction

(a)       Religious belief unaffected

Nothing in this chapter shall be construed to authorize any government to burden any religious belief.

(b)       Religious exercise not regulated

Nothing in this chapter shall create any basis for restricting or burdening religious exercise or for claims against a religious organization including any religiously affiliated school or university, not acting under color of law.

(c)        Claims to funding unaffected

Nothing in this chapter shall create or preclude a right of any religious organization to receive funding or other assistance from a government, or of any person to receive government funding for a religious activity, but this chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.

(d)       Other authority to impose conditions on funding unaffected

Nothing in this chapter shall-

(1)       authorize a government to regulate or affect, directly or indirectly, the activities or policies of a person other than a government as a condition of receiving funding or other assistance; or

(2)       restrict any authority that may exist under other law to so regulate or affect, except as provided in this chapter.

(e)       Governmental discretion in alleviating burdens on religious exercise

A government may avoid the preemptive force of any provision of this chapter by changing the policy or practice that results in a substantial burden on religious exercise, by retaining the policy or practice and exempting the substantially burdened religious exercise, by providing exemptions from the policy or practice for applications that substantially burden religious exercise, or by any other means that eliminates the substantial burden.

(f)         Effect on other law

With respect to a claim brought under this chapter, proof that a substantial burden on a person's religious exercise affects, or removal of that burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, shall not establish any inference or presumption that Congress intends that any religious exercise is, or is not, subject to any law other than this chapter.

(g)       Broad construction

This chapter shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.

(h)        No preemption or repeal

Nothing in this chapter shall be construed to preempt State law, or repeal Federal law, that is equally as protective of religious exercise as, or more protective of religious exercise than, this chapter.

(i)         Severability

If any provision of this chapter or of an amendment made by this chapter, or any application of such provision to any person or circumstance, is held to be unconstitutional, the remainder of this chapter, the amendments made by this chapter, and the application of the provision to any other person or circumstance shall not be affected.

42 USCA S 2000cc-4

42 U.S.C.A. § 2000cc-4

UNITED STATES CODE ANNOTATED TITLE 42. THE PUBLIC HEALTH AND WELFARE CHAPTER 21C--RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS

Current through P.L. 107-19, approved 7-10-01

§ 2000cc-4. Establishment Clause unaffected

Nothing in this chapter shall be construed to affect, interpret, or in any way address that portion of the First Amendment to the Constitution prohibiting laws respecting an establishment of religion (referred to in this section as the "Establishment Clause"). Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, shall not constitute a violation of this chapter. In this section, the term "granting", used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions.

42 USCA S 2000cc-5

42 U.S.C.A. § 2000cc-5

UNITED STATES CODE ANNOTATED TITLE 42. THE PUBLIC HEALTH AND WELFARE CHAPTER 21C--RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS

Current through P.L. 107-19, approved 7-10-01

§ 2000cc-5. Definitions

In this chapter:

(1)       Claimant

The term "claimant" means a person raising a claim or defense under this chapter.

(2)       Demonstrates

The term "demonstrates" means meets the burdens of going forward with the evidence and of persuasion.

(3)       Free Exercise Clause

The term "Free Exercise Clause" means that portion of the First Amendment to the Constitution that proscribes laws prohibiting the free exercise of religion.

(4)       Government

The term "government"--

(A)       means-

(i)         a State, county, municipality, or other governmental entity created under the authority of a State;

(ii)        any branch, department, agency, instrumentality, or official of an entity listed in clause (i); and

(iii)       any other person acting under color of State law; and

(B)       for the purposes of sections 2000cc-2(b) and 2000cc-3 of this title, includes the United States, a branch, department, agency, instrumentality, or official of the United States, and any other person acting under color of Federal law.

(5)       Land use regulation

The term "land use regulation" means a zoning or landmarking law, or the application of such a law, that limits or restricts a claimant's use or development of land (including a structure affixed to land), if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest.

(6)       Program or activity

The term "program or activity" means all of the operations of any entity as described in paragraph (1) or (2) of section 2000d-4a of this title.

(7)       Religious exercise

(A)       In general

The term "religious exercise" includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief

(B)       Rule

The use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose.

Religious Freedom Restoration Act of 1993

           Enrolled Bill
           Public Law 103-141
           November 16, 1993
           103rd Congress
           H.R.130

  An Act To protect the free exercise of religion.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

Sec. 1. Short Title.  This Act may be cited as the "Religious Freedom Restoration Act of 1993"

Sec. 2. Congressional Findings and Declaration of Purposes.

   (a) Findings: The Congress finds that --

      (1) the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution

      (2) laws "neutral" toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise

      (3) governments should not substantially burden religious exercise without compelling justification;

      (4) in Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme Court virtually   eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and

      (5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior              governmental interests.

   (b) Purposes: The purposes of this Act are:

       (1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v.  Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and
  
       (2) to provide a claim or defense to persons whose religious exercise is substantially  burdened by government.


Sec. 3. Free Exercise of Religion Protected.

    (a) In General: Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection
    (b) Exception: Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person:

        (1) is in furtherance of a compelling governmental interest; and

        (2) is the least restrictive means of furthering that compelling governmental interest.

   (c) Judicial Relief: A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.  Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.


Sec. 4. Attorney's Fees.

      (a) Judicial Proceedings: Section 722 of the Revised Statutes (42 U.S.C. 1988) is amended by inserting 'the Religious Freedom Restoration Act of 1993,' before 'or title VI of the Civil Rights Act of 1964'. 

      (b) Administrative Proceedings: Section 504(b)(1)(C) of title 5, United States Code, is
             amended:

          (1) by striking 'and' at the end of clause (ii);

          (2) by striking the semicolon at the end of clause (iii) and inserting ', and'; and

          (3) by inserting '(iv) the Religious Freedom Restoration Act of 1993;' after clause
                (iii).


Sec. 5. Definitions.
     As used in this Act --

          (1) the term 'government' includes a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, a State, or a
subdivision of a State;

          (2) the term 'State' includes the District of Columbia, the Commonwealth of Puerto Rico, and each territory and possession of the United States;

          (3) the term 'demonstrates' means meets the burdens of going forward with the evidence and of persuasion; and

          (4) the term 'exercise of religion' means the exercise of religion under the First 
Amendment to the Constitution.


Sec. 6. Applicability.

     (a) In General.--This Act applies to all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after the enactment of this Act.

     (b) Rule of Construction.--Federal statutory law adopted after the date of the enactment of  this Act is subject to this Act unless such law explicitly excludes such application by reference to this Act.

     (c) Religious Belief Unaffected.--Nothing in this Act shall be construed to authorize any government to burden any religious belief.


Sec. 7. Establishment Clause Unaffected.

Nothing in this Act shall be construed to affect, interpret, or in any way address that portion of the First Amendment prohibiting laws respecting the establishment of religion (referred to in this section as the 'Establishment Clause'). Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, shall  not constitute a violation of this Act. As used in this section, the term 'granting', used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions. 

   Speaker of the House of Representatives.
   Vice President of the United States and President of the Senate.

Notes:
Passed without opposition in the U.S. House of Representatives. Passed 97-3 in the U.S. Senate. It was signed into law by President Bill Clinton in November 1993.
 

United Nations Article 18

 (United Nations Universal Declaration of Human Rights, 1948)

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, either alone or in community with others and in public or private, to manifest his religion or belief in  teaching, practice, worship and observance.


Guidelines on Discrimination Because of Religion

Effective June 15, 1966;
amended July 13,1967; November 1,1980


Title 29 CFR (Code of Federal Regulations )
(PART 1605) Section Table of Contents
1605.1 "Religious" nature of a practice or belief.............

1605.2 Reasonable accommodation without undue hardship as required by Section 701(J) (paragraph 950) of Title VII of the Civil |
Rights Act of 1964 ......................
1605.3 Selection Practices...................................
Appendix A to Sections 1605.2 and 1605.3 --- Background Information

Sec. 1605.1 "Religious" nature of a Practice or Belief. --- In most cases whether or not a practice or belief is religious is not at issue. However, in those cases in which the issue does exist, the Commission will define religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views. This standard was developed in UNITED STATES VS. SEEGER, 380 U.S. 163 (1965) and WELSH VS. UNITED STATES, 398 U.S. 333 (1970). The Commission has consistently applied this standard in its decisions. The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee. The phrase "religious practice" as used in these Guidelines includes both religious observances and practices, as stated in Section 701(j) (paragraph 9500, 42 U.S.C. 2000e(j).

Sec. 1605.2 Reasonable Accommodation without Undue Hardship as Required by Section 701(j) (paragraph 9500 of Title VII of the Civil Rights Act of 1964. ---

(a) PURPOSE OF THIS SECTION. This Section clarifies the obligation imposed by Title VII of the Civil Rights Act of 1964, as amended, (sections 701 (j) (paragraph 950), 703 (paragraph 954) 717, (paragraph 982)) to accommodate the religious practices of employees and prospective employees. This section does not address other obligations under Title VII not to discriminate on grounds of religion, nor other provisions of Title VII. This section is not intended to limit any additional obligations to accommodate religious practices which may exist pursuant to constitutional, or other statutory provisions; neither is it intended to provide guidance for statutes which require accommodation on bases other than religion such as Sec. 503 of the Rehabilitation Act of 1973 (paragraph 999.6C). The legal principles which have been developed with respect to discrimination prohibited by Title VII on the bases of race, color, sex, and national origin also apply to religious discrimination in all circumstances other than where an accommodation is required.

(b) DUTY TO ACCOMMODATE. (1) Section 701(j) (paragraph 950) makes it an unlawful unemployment practice under Sec. 703(a)(1) (paragraph 954) for an employer to fail to reasonably accommodate the religious practices of an employee or prospective, unless the employer demonstrates that accommodation would result in undue hardship on the conduct of its business. (2) Section 701(j) (paragraph 954) in conjunction with Sec. 703(c), imposes an obligation to reasonably accommodate the religious practices of an employee or prospective employee, unless the labor organization demonstrates that accommodation would result in undue hardship. (3) Section 1605.2 is primarily directed to obligations of employers or labor organizations, which are the entities covered by Title VII that will most often be required to make an accommodation. however, the principles of Section 1605.2 also apply when an accommodation can be required of other entities covered by Title VII, such as employment agencies (Sec. 703 (b) (paragraph 954) or joint labor-management committees controlling apprenticeship or other training or retraining (Sec. 703 (d) (paragraph 954)).

(c) REASONABLE ACCOMMODATION.

(1) After an employee or prospective employee notifies the employer or labor organization of his or her need for a religious accommodation, the employer or labor organization has an obligation to reasonably accommodate the individual's religious practices. A refusal to accommodate is justified only when an employer or labor organization can demonstrate that an undue hardship would in fact result from each available alternative method of accommodation. A mere assumption that many more people, with the same religious practices as the person being accommodated, may also need accommodation is not evidence of undue hardship.

(2) When there is more than one method of accommodation available which would not cause undue hardship, the Commission will determine whether the accommodation offered is reasonable by examining: (i) The alternatives for accommodation considered by the employer or labor organization; and (ii) The alternative for accommodation, if any, actually offered to the individual requiring accommodation. Some alternatives for accommodating religious practices might disadvantage the individual with respect to his or her employment opportunities, such as compensation, terms, conditions, or privileges of employment. Therefore, when there is more than one means of accommodation which would not cause undue hardship, the employer or labor organization must offer the alternative which least disadvantages the individual with respect to his or her employment opportunities.

(d) ALTERNATIVES FOR ACCOMMODATING RELIGIOUS PRACTICES. (1) Employees and prospective employees most frequently request an accommodation because their religious practices conflict with their work schedules. The following subsections are some means of accommodating the conflict between work schedules and religious practices which the Commission believes that employers and labor organizations should consider as part of the obligation to accommodate and which the Commission will consider in investigating a charge. These are not intended to be all-inclusive. there are often other alternatives which would reasonably accommodate an individuals religious practices when they conflict with a work schedule. There are also employment practices besides work scheduling which may conflict with religious practices and cause an individual to request an accommodation.

(i) VOLUNTARY SUBSTITUTES AND "SWAPS," Reasonable accommodation without undue hardship is generally possible where a voluntary substitute with substantially similar qualifications is available. One means of substitution is the voluntary swap. In a number of cases, the securing of a substitute has been left entirely up to the individual seeking the accommodation. The Commission believes that the obligation to accommodate requires that employers and labor organizations facilitate the securing of a voluntary substitute with substantially similar qualifications. Some means of doing this which employers and labor organizations should consider are: to publicize policies regarding accommodation and voluntary substitution; to promote an atmosphere in which such substitutions are favorably regarded; to provide a central file, bulletin board or other means for matching voluntary substitutes with positions for which substitutes are needed.

(ii) FLEXIBLE SCHEDULING. One means of providing reasonable accommodation for the religious practices of employees or prospective employees which employers and labor organizations should consider is the creation of a flexible work schedule for individuals requesting accommodation. The following list is an example of areas in which flexibility might be introduced: flexible arrival and departure times; floating or optional holidays; flexible work breaks; use of lunchtime in exchange for early departure; staggered work hours; and permitting an employee to make up time lost due to the observance of religious practices.

(ii) LATERAL TRANSFER AND CHANGE OF JOB ASSIGNMENTS. When an employee cannot be accommodated either as to his or her entire job or an assignment within the job, employers and labor organizations should consider whether or not it is possible to change the job assignment or give the employee a lateral transfer.

APPENDIX

1. There is widespread confusion concerning the extent of accommodation under the HARDISON decision.

2. The religious practices of some individuals and some groups of individuals are not being accommodated.

3. Some of those practices which are not being accommodated are: ---Observance of a Sabbath or religious holidays; ---Need for prayer break during working hours; ---Practice of following certain dietary requirements; ---Practice of not working during a mourning period for a deceased relative; ---Prohibition against medical examinations ---Prohibition against membership in labor and other organizations; and ---Practices concerning dress and other personal grooming habits.

4. Many of the employers who testified had developed alternative employment practices which accommodate the religious practices of employees and prospective employees and which meet the employer's business needs.

5. Little evidence was submitted by employers which showed actual attempts to accommodate religious practices with resultant unfavorable consequences to the employer's business. Employers appeared to have substantial anticipatory concerns, but no, or very little, actual experience with the problems they theorized would emerge by providing reasonable accommodation for religious practices.
 

EQUAL ACCESS ACT

52 U.S.C. § 4071. Denial of Equal Access prohibited.

(a)        Restriction of limited open forum on basis of religious, political, philosophical, or other speech content prohibited.

It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal accessor a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within the limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.

(b)        "Limited open forum" defined

A public secondary school has a limited open forum whenever such school grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during noninstructional time.

(c)        Fair opportunity criteria

Schools shall be deemed to offer a fair opportunity to students who wish to conduct a meeting within its limited open forum if such school uniformly provides that--

(1)        the meeting is voluntary and student-initiated;

(2)        there is no sponsorship of the meeting by the school, the government, or its agents or employees;

(3)        employees or agents of the school or government are present at religious meetings only in a nonparticipatory capacity;

(4)        the meeting does not materially and substantially interfere with the orderly conduct of educational activities within the school; and

(5)        nonschool persons may not direct, conduct, control, or regularly attend activities of student groups.

(d)        Construction of subchapter with respect to certain rights

Nothing in this subchapter shall be construed to authorize the United States or any State or political subdivision thereof--

(1)        to influence the form or content of any prayer or other religious activity;

(2)        to require any person to participate in prayer or other religious activity;

(3)        to expend public funds beyond the incidental cost of providing the space for student-initiated meetings;

(4)        to compel any school agent or employee to attend a school meeting if the content of the speech at the meeting is contrary to the beliefs of the agent or employee;

(5)        to sanction meetings that are otherwise unlawful;

(6)        to limit the rights of groups of students which are not of a specified numerical size; or

(7)        to abridge the constitutional rights of any person.

(e)        Federal financial assistance to schools unaffected

Notwithstanding the availability of any other remedy under the Constitution or the laws of the United States, nothing in this subchapter shall be construed to authorize the United States to deny or withhold Federal financial assistance to any school.

(f)         Authority of schools with respect to order, discipline, well-being, and attendance concerns

Nothing in this subchapter shall be construed to limit the authority of the school, its agent or employees, to maintain order and discipline on school premises, to protect the well-being of students and faculty, and to assure that attendance of students at meetings is voluntary.

§ 4072.  Definitions

As used in this subchapter--

(1)        The term "secondary school" means a public school which provides secondary education as determined by State law.

(2)        The term "sponsorship" includes the act of promoting, leading, or participating in a meeting.  The assignment of a teacher, administrator, or other school employee to a meeting for custodial purposes does not constitute sponsorship of the meeting.

(3)        The term "meeting" includes those activities of student groups which are permitted under a school's limited open forum and are not directly related to the school curriculum.

(4)        The term "noninstructional time" means time set aside by the school before actual classroom instruction begins or after actual classroom instruction ends.

§ 4073.  Severability


If any provision of this subchapter or the application thereof to any person or circumstances is judicially determined to be invalid, the provisions of the remainder of the subchapter and the application to other persons or circumstances shall not be affected thereby.

§ 4074.  Construction

The provisions of this subchapter shall supersede all other provisions of Federal law that are inconsistent with the provisions of this subchapter.

 

The Religious Freedom Restoration Act has been declared unconstitutional
as applied to state and local governments; it is in force against the Federal Government.

The United States Supreme Court declared the Religious Freedom Restoration Act to be unconstitutional in a 6 to 3 decision on June 25, 1997 in the case of City of Boerne, Texas v. Flores. For background on the RFRA legislation and the implications of the Supreme Court decision, see "The Status of RFRA" on the Religious Freedom site of the Christian Science Committee on Publication.

Religious Freedom

Restoration Act of 1993

 Public Law 103-141

November 16, 1993

  103rd Congress

H.R.130

 An Act

To protect the free exercise of religion.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

Sec. 1. Short Title.

This Act may be cited as the 'Religious Freedom Restoration Act of 1993'.

 Sec. 2. Congressional Findings and Declaration of Purposes.

(a) Findings: The Congress finds that--

(1) the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution;

(2) laws 'neutral' toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;

(3) governments should not substantially burden religious exercise without compelling justification;

(4) in Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and

(5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.

(b) Purposes: The purposes of this Act are--

(1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and

(2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government.

Sec. 3. Free Exercise of Religion Protected.

(a) In General: Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).

(b) Exception: Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person--

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

(c) Judicial Relief: A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.

Sec. 4. Attorney's Fees.

(a) Judicial Proceedings: Section 722 of the Revised Statutes (42 U.S.C. 1988) is amended by inserting 'the Religious Freedom Restoration Act of 1993,' before 'or title VI of the Civil Rights Act of 1964'.

(b) Administrative Proceedings: Section 504(b)(1)(C) of title 5, United States Code, is amended--

(1) by striking 'and' at the end of clause (ii);

(2) by striking the semicolon at the end of clause (iii) and inserting ', and'; and

(3) by inserting '(iv) the Religious Freedom Restoration Act of 1993;' after clause (iii).

Sec. 5. Definitions.

As used in this Act --

(1) the term 'government' includes a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, a State, or a subdivision of a State;

(2) the term 'State' includes the District of Columbia, the Commonwealth of Puerto Rico, and each territory and possession of the United States;

(3) the term 'demonstrates' means meets the burdens of going forward with the evidence and of persuasion; and

(4) the term 'exercise of religion' means the exercise of religion under the First Amendment to the Constitution.

Sec. 6. Applicability.

(a) In General.--This Act applies to all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after the enactment of this Act .

(b) Rule of Construction.--Federal statutory law adopted after the date of the enactment of this Act is subject to this Act unless such law explicitly excludes such application by reference to this Act .

(c) Religious Belief Unaffected.--Nothing in this Act shall be construed to authorize any government to burden any religious belief.

Sec. 7. Establishment Clause Unaffected.

Nothing in this Act shall be construed to affect, interpret, or in any way address that portion of the First Amendment prohibiting laws respecting the establishment of religion (referred to in this section as the 'Establishment Clause'). Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, shall not constitute a violation of this Act. As used in this section, the term 'granting', used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions.

Religious Freedom Restoration Act Declared Unconstitutional!

The United States Supreme Court declared the Religious Freedom Restoration Act to be unconstitutional in a 6 to 3 decision on June 25, 1997 in the case of City of Boerne, Texas v. Flores. This is a very important case which we will later treat in considerable on the section on Contemporary Crises. For an excellent overview of the background on the RFRA legislation and the implications of the Supreme Court decision, we recommend the section on "The Status of RFRA" on the Religious Freedom site of the Christian Science Committee on Publication.

 

Updated Created March 27, 2007