This important new legislation explicitly overturned the U.S. Supreme Court decision in Employment Division v. Smith, 494 US 872 (1990), which had held that facially neutral laws of general applicability that burden the exercise of religion require no special justification to satisfy the free exercise of religion clause of the first amendment, rejecting prior tests which required a compelling state interest and use of the "least restrictive means." Additionally, and of importance to prisoners, according to the Report of the U.S. Senate Committee on the Judiciary concerning the Act, Report No. 103-111, "As applied in the prison and jail context, the intent of the act is to restore the traditional protection afforded to inmates to observe their religions which was weakened by the decision in O'Lone v. Estate of Shabazz, 482 US 342 (1987).
Prior to O'Lone, courts used a balancing test in cases where a prisoner's free exercise of religion rights were arguably burdened by an institutional regulation: "only regulations based upon penological concerns of the `highest order' could outweigh an inmate's claims." The Senate Judiciary Committee believed that O'Lone "weakened this standard, holding that prison rules that burden prisoners' religious practices satisfy the free exercise clause if they are `reasonably related to legitimate penological interests.'" The intent of the Act, the Committee reported, "is to restore traditional protection afforded to prisoners' claims prior to O'Lone, not to impose a more rigorous standard than the one that was applied."
The general standard set forth in the Religious Freedom Restoration Act of 1993, which is applicable in jails and prisons, is that "government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except" 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.
The Judiciary Committee expressed its "expectation" that courts would "continue the tradition of giving due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources," while warning that "inadequately formulated prison regulations and policies grounded on mere speculation, exaggerated fears, or post-hoc rationalizations will not suffice to meet the act's requirements."
The Act creates the right to bring suit for violations of its standards and for prevailing plaintiffs to be awarded attorney fees. Prisoners contemplating the litigation of free exercise claims should consider bringing their claims under the Act rather than under the constitution given the higher degree of protection offered by the Act. Vol. 9, No. 1 of the National Prison Project Journal contains an excellent article by John Boston containing a lengthy analysis of the RFRA with a description of pre-O'Lone case law on prison free exercise claims and litigation strategy under the RFRA. Mr. Boston's article should be read by litigants before filing suit.
Source: Jail and Prisoner Law Bulletin, # 206. NPP Journal, Vol. 9, # 1.
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