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Unpublished Paper
Religious Freedom in Private Lawsuits: Untangling When RFRA Applies to Suits Involving Only Private Parties
ExpressO (2011)
  • Sara Lunsford Kohen
Abstract

Religious Freedom in Private Lawsuits: Untangling When RFRA Applies to Suits Involving Only Private Parties, for publication discusses when courts should apply the Religious Freedom Restoration Act (“RFRA”) in cases in which the federal government is not a party. Congress passed RFRA in reaction to the Supreme Court’s decision in Employment Division v. Smith. The Court held in Smith that the Constitution does not require religious exemptions from neutral, generally applicable laws—those that do not target religion and cover non-religious conduct to the same extent as religious conduct. By contrast, RFRA allows a federal law to substantially burden a religious practice only if the burden is the least restrictive means of furthering a compelling governmental interest.

Although it is clear that RFRA creates claims and defenses against the federal government itself and federal officials, the federal circuits cannot agree on when—if ever—RFRA applies in suits involving only private parties. The answer to this question determines the level of scrutiny that courts apply in private lawsuits in which a neutral, generally applicable law burdens a person’s free exercise of religion. If RFRA applies, then the burden must satisfy strict scrutiny. If not, the burden need only be rationally related to a legitimate government interest. Not only do the circuits disagree about when RFRA creates a claim or a defense against a private party, they cannot even agree on the correct analysis. The courts’ disagreement on this question demonstrates the need for a comprehensive theory of when RFRA creates claims and defenses in suits between private parties. This article develops such a theory based on RFRA’s text, similar language in other statutes, legislative history, and public policy considerations.

Keywords
  • RFRA,
  • Religious Freedom Restoration Act,
  • religious freedom,
  • religion,
  • free exercise,
  • First Amendment
Disciplines
Publication Date
August 4, 2011
Citation Information
Sara Lunsford Kohen. "Religious Freedom in Private Lawsuits: Untangling When RFRA Applies to Suits Involving Only Private Parties" ExpressO (2011)
Available at: http://works.bepress.com/sara_kohen/2/