The Religious Freedom Restoration Act Can be Shut Down by Unique Personal Moral and Ethical Beliefs

The Religious Freedom Restoration Act, esp. 42 U.S.C. 2000bb–2000bb-4, seems to have a critical weakness under the First Amendment. The Act’s purpose could be defeated.

I have not researched this in depth.

Roughly speaking, it’s a Federal statutory law that generally protects laws that could survive a more lenient standard of review by the Federal judiciary than would otherwise be applied, if they have a religious basis. I suspect most people think that’s limited to Christianity, followed by the U.S.’s most populous faith community, or to well-known faiths, such as Judaism.

But it can’t be. If the basis is to be religious, then it must include all religions and moral and ethical systems that serve like religions for their believers.

A line of cases decided by the U.S. Supreme Court up to about half a century ago and probably unchanged since then, and having progeny, addresses the question of what is a religion. It did so in another context, that of conscientious objection to military service, but that is a difference without a distinction. It did so for a statute that had a narrow definition of religion and the Court appears to have decided to preserve the Constitutionality of the statute by interpreting it as meaning what the First Amendment allows it to mean.

Thus, someone with a moral belief or an ethical belief that serves a role in the believer’s life similar to that of religion in another believer’s life could have the protection of the Religious Freedom Restoration Act.

While the Act seems to be invoked for traditionalist (or conservative) purposes, such as to refuse to recognize rights recognized in modern jurisprudence but not in older religions, there may be nothing in the Act that favors traditionalism. Invocation of the Act’s protection for modern (or liberal) purposes may be permitted. Imagination should be applied. If a conservative claim is made by someone, perhaps someone else might reverse it to make a liberal claim. Or, a liberal claim might be independent of any conservative claim.

Two difficulties should be considered. One is whether the Supreme Court, in considered to have a 6–3 conservative–liberal balance of Justices, would adversely distinguish or overturn any of the earlier holdings. This may have to be resolved through timing, by not bringing a case too early, but people’s actions may not allow a delay.

The other is the problem, likely to arise although perhaps not in the first new case, of an assertion of a right under the statute by one person that conflicts with an assertion of the same right by someone else such that both assertions cannot be satisfied. In the conscientious objection cases, the usual case was of an individual asserting a right of recognition against the government and not of two individuals asserting rights against each other (there were some collateral order-of-call attacks but not many, based on one party claiming that they would not have been called for induction if someone else’s claim of conscientious objection had not been approved and the order of call had been followed). That may have to be addressed through strategic planning of initiation of multiple cases, but generally a party or potential party has little ability to prevent an unrelated party from starting a lawsuit.