RFRA (Religious Freedom Restoration Act): Which Test Is Best?

• NCJ Number: 166473
• Journal: Corrections Today Volume: 58 Issue: 2 Dated: (April 1996) Pages: 136,138-142
• Author(s): J E Call; C T Samarkos
• Date Published: 1996
• Length: 6 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

This article examines the congressional intent and the actual impact of the Federal Religious Freedom Restoration Act (RFRA) of 1993 regarding inmates' exercise of religious freedom.

Abstract

In the case of Employment Division of Oregon v. Smith (1990), the U.S. Supreme Court abandoned the "strict scrutiny" level of review for laws that affect the free exercise of religion, that is, that any government action that restricts the free exercise of any religion must be the least restrictive means available to further a compelling state interest. Unhappy with the Supreme Court's decision in "Smith," the Congress drafted the RFRA, which overrules the Court's decision in "Smith" and re- establishes the strict scrutiny test that was set out in Sherbert v. Verner (1963). This decision held that a government action that limits one's free exercise of religion is justified only by a compelling state interest. Determining how great an impact RFRA will have on correctional institutions is being debated. Some commentators, such as James C. Wilson, argue that RFRA will open the flood gates to meritless, costly prison litigation. Others, such as James E. Ryan, argue that the RFRA is largely a futile endeavor, because the free-exercise claimant rarely succeeds even under the compelling interest test. Prison cases decided under RFRA have thus far failed to provide a clear picture of RFRA's likely effect. The RFRA, however, has created the potential for court decisions that will hamper the ability of prisons and jails to maintain discipline and security. Given this potential, perhaps the wisest course of action for Congress is to reconsider its strict scrutiny approach to RFRA in favor of the intermediate scrutiny approach. This test requires that government action must be more than reasonably related to a legitimate government purpose but need not be the least restrictive means available to accomplish this purpose. Under this test, there must be an important governmental objective involved in the restriction, and the government's actions must be substantially related to the achievement of this objective. 2 references