Telescoping and Collectivizing Religious Free Exercise Rights

Henry L. Chambers Jr.

The First Amendment to the United States Constitution protects an individual’s right to freely exercise religion against government intrusion. The amendment’s Free Exercise Clause guarantees that persons can express their religious devotion as they see fit. Though protective of free exercise rights, the clause is not absolute. It does not exempt individuals from generally applicable laws that incidentally limit their exercise of religion. Consequently, in the last few decades, laws such as the Religious Freedom Restoration Act (“RFRA”) and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) have been enacted to broaden the protection of the exercise of religion from governmental interference.

Under those statutes, a person may stop the federal government and, in some instances, state and local governments from engaging in conduct, including enforcing laws, that substantially affects the person’s ability to freely practice religion, unless the government’s action is triggered by a compelling interest and is the least restrictive means of furthering the compelling interest. That expansion of the breadth of protection for free exercise rights is important. If the free exercise of religion is to be encouraged, it arguably should not yield every time a statute limits it. When an individual’s exercise of religion is effectively limited by a statute, striking a balance between the free exercise of religion and the regulation of religious conduct is reasonable. Though RFRA and RLUIPA may appear to simply allow an individual to avoid the effect of some laws that conflict with the individual’s religious beliefs, arguably those statutes merely provide broader coverage for the principle of religious autonomy that underlies the First Amendment.