Closing the Constitutional Gap
Lance Kinzer September/October 2025Often misunderstood and maligned, state religious freedom restoration laws level the legal playing field for people of faith.
In Roman Catholic Diocese v. Cuomo, a U.S. Supreme Court case dealing with state and local COVID restrictions, Justice Neil Gorsuch stated a core principle of constitutional religious freedom protection. “Government is not free to disregard the First Amendment in times of crisis. At a minimum, that Amendment prohibits government officials from treating religious exercises worse than comparable secular activities, unless they are pursuing a compelling interest and using the least restrictive means available.”
Yet for the past 30 years the reach of this principle, known as the “compelling interest test,” has been uncertain. At issue is this question: How far does the compelling interest test apply to neutral and generally applicable laws that don’t explicitly target religious exercise?
Unfortunately, since the 1990 Supreme Court case of Employment Division v. Smith, the U.S. Constitution can’t be counted on for consistent application of the compelling interest test. At the time Smith was decided, then-president of the American Civil Liberties Union Nadine Strossen called the decision the “Dred Scott of the First Amendment.” It had, she said, eviscerated religious free exercise protections in cases where a neutral and generally applicable law is used to substantially burden religious liberty.
That’s why in 1993 Congress—with almost no opposition—passed the federal Religious Freedom Restoration Act (RFRA). This bill, signed into law by President Bill Clinton, corrected the Court’s error in Smith and restored the compelling interest test in cases involving government burdens on religious exercise. The bipartisan support for the federal RFRA reflected a broad consensus that the free exercise clause can’t serve its most basic purpose if it’s deemed functionally inapplicable to neutral and generally applicable laws.
A Fair Day in Court
In simple terms, RFRA says that the government should be held to a very high standard before it can interfere with the free exercise of religion. Absent RFRA, even a very weak government interest can trump religious freedom, even if there was a reasonable alternative available that could have safeguarded that religious interest. Under RFRA, the religious interest doesn’t always prevail, but it at least gets a fair day in court.
RRFA first asks, Is there a substantial burden? Which is to say, is there a sincere religious belief that is being harmed by the government? If no, then the case is closed, and the government can move forward with its desired action. If yes, then the analysis moves forward.
The next question is: Does the government have a very good reason to interfere with the religious belief at issue? If the government cannot show that is does, then it loses the case. If the government can show a compelling interest, then once again the analysis moves forward.
Next, the basic question is: Is there a reasonable alternative action the government can undertake to serve the public interest that is at stake? If not, then the government burden on free exercise is allowed. But if the facts show that the government could achieve its goal using a method less restrictive of religious liberty, then they must take that alternative route.
An example, drawn from a real case, involved a woman whose religious beliefs required her to keep her face veiled in public. Under the RFRA test, she was able to show that she was burdened by a state driver’s license law that required her to have a picture taken of her full face at a Department of Motor Vehicles office. That said, the government was able to show that it had a compelling public safety interest for requiring the photo. What the government could not show was that its interest could be achieved only by requiring her to remove the veil in a public setting in front of men. The case resolved with the state being required to allow her to have the photo taken in a private room with a female photographer. This commonsense solution is an excellent example of how RFRA works in practice.
A New Gap Opens
As passed in 1993, the federal RFRA was intended to apply across the board to all federal, state, and local government action. However, a 1997 U.S. Supreme Court decision sharply curtailed the reach of RFRA. In City of Boerne v. Flores, the Court determined that Congress lacked the power to require states and localities to apply the federal RFRA as drafted.
Prior to this decision, some states had already acted to pass their own state RFRA protections. But in the aftermath of Flores a steady stream of states followed suit, with 18 state RFRAs becoming law between 1998 and 2015. Additionally, in 2000, Congress passed, and President Clinton signed, the Religious Land Use and Institutionalized Persons Act (RLUIPA), which reestablished the compelling state interest test at the state and local levels in specific categories of cases.
Approximately 10 years ago, however, the politics of RFRA began to change. It started with the 2014 veto of an Arizona bill designed to clarify and strengthen that state’s existing RFRA statute. The veto was prompted largely by concerns that RFRAs could be applied to limit the applicability of anti-discrimination laws, especially in relation to LGBT rights. These concerns were heightened in 2014 by the successful use of the federal RFRA in the Supreme Court case of Burwell v. Hobby Lobby Stores, Inc. Hobby Lobby successfully challenged the government’s Health and Human Services mandate that required the company’s owners to provide insurance coverage for potentially life-terminating drugs and devices, contrary to the family’s religious convictions. In this changed political environment, the drive to pass state RFRA laws stalled. No new state RFRAs took effect between 2016 and 2020.
The Truth About RFRAs
In the aftermath of the Hobby Lobby decision there was significant academic work on how the RFRA has been used by litigants and applied by courts. The overall conclusion, from scholars across the political spectrum, has been that:
The most common and important uses of state and federal RFRA statutes involve the protection of religious minorities in cases that have nothing to do with hot-button cultural issues related to sexual morality.
RFRA cases involving a conflict with LGBT rights are extremely rare, and even those cases are largely decided against the religious plaintiff, absent very unusual circumstances, such as some wedding vendor cases or the conscience rights of health-care providers.
Critics of the Hobby Lobby decision predicted that it would open the floodgates to a host of novel claims under RFRA. The concern was that it would transform RFRAs from a shield for protecting religious minorities into a sword for imposing Christian values in the areas of abortion, contraception, and gay rights. All the studies concluded that this has simply not happened.
Religious minorities are significantly overrepresented in RFRA cases relative to their share of the population. Except for a statistical anomaly created by the significant number of Christians who won contraception mandate cases, it is religious minorities who disproportionally win RFRA claims.
RFRA statutes are not a “get out of legal jeopardy free card.” Indeed, most RFRA cases end up being decided in favor of the government, and courts have had no problem weeding out weak or insincere RFRA claims.
Beginning in 2021, the politics of state RFRAs shifted once again. This was partly a result of the realities noted above, as well as heightened sensitivity to potential state and local government overreach because of unequal treatment of religion in some COVID-era restrictions. Nine states have passed new RFRAs since 2021. Most recently, in 2025, state RFRAs were signed into law in Wyoming and Georgia. This brings to 30 the number of states that have RFRA statutes. Moreover, another 10 states that lack a RFRA statute still apply the compelling interest test as a matter of clear and relatively contemporaneous state appellate court decisions interpreting their state constitutions.
While these statutes, and court opinions, vary in quality—with some being more protective than others—the upshot is that the RFRA compelling interest test is the standard in religious exercise cases with respect to all federal government action, and in the vast majority of states. This includes a mix of “red states” and “blue states.” Notably, it includes many states that also have statewide civil rights laws recognizing sexual orientation and/or gender identity (SOGI) as protected classes. (Connecticut, Illinois, Iowa, New Mexico, Rhode Island, and Virginia have RFRA statutes; Maine, Massachusetts, Minnesota, New Hampshire, and Washington apply the compelling interest test by court ruling.) The reality is that the statewide protective SOGI laws in these states, and the protective SOGI local ordinances that exist in virtually every state that applies the compelling interest test, have not led to significant conflict. RFRAs don’t function as a sword to limit the rights of anyone; rather, they serve as an important shield against government overreach in restricting religious exercise.
RFRA ensures governmental transparency and accountability. By requiring government officials to justify restrictions imposed on religious liberty, RFRA increases citizen leverage and incentivizes the government to find ways to achieve its interests while respecting religious liberty.
RFRA promotes religious diversity and reinforces America’s commitment to pluralism. RFRA reaffirms the foundational principle that American citizens have the God-given right to live peaceably and undisturbed, according to their religious beliefs.
RFRA minimizes religious conflict. Disputes over religious liberty are reduced when everyone’s religious liberty is respected under the same fair standard.
Sensible Solutions
While not the norm, clarity about the applicability of this standard can also be a matter of life and death. In a 2020 amicus brief to the U.S. Supreme Court, Thomas Berg of the University of St. Thomas School of Law and Douglas Laycock of the University of Virginia Law School urged the Court to reverse the course they set in Employment Division v. Smith, and restore the compelling interest test as the proper constitutional rule.1 They led their legal brief with the story of Mary Stinemetz, a Kansas woman who died for her religious convictions in 2012. On a personal note, I served in the Kansas House of Representatives during this time and wrote the Kansas RFRA statute that became law in 2013 in part because of Mary’s story.
Berg and Laycock begin by pointing out that the Supreme Court’s decision in Smith has led many government officials to believe they no longer have to consider regulatory exceptions to protect free exercise. They can just say no.
“And that is why Mary Stinemetz died for her faith, in America, in the twenty-first century,” they write. “Stinemetz was a Jehovah’s Witness who needed a liver transplant without a blood transfusion. Bloodless transplants were available in Omaha. But Kansas Medicaid wouldn’t pay for medical care more than fifty miles beyond the Kansas state line.
“This arbitrary limit served no purpose. Transplants were actually cheaper in Omaha than in Kansas. The rule wasn’t even generally applicable, because Kansas officials had ‘absolute discretion’ to grant exceptions. But through multiple hearings and appeals, they refused any exception for Stinemetz. They ‘failed to suggest any state interest, much less a compelling interest,’ that refusing an exception might serve. They understood Smith to mean that they didn’t need a reason.”
The court ultimately ruled for Stinemetz, but it was too late. During two years of administrative appeals and litigation, Steinmetz’s condition had deteriorated, and she was no longer medically eligible for a transplant. She died of liver disease in the year after the court’s decision.
“The death of Mary Stinemetz followed naturally from telling government officials that they have no obligation to consider the religious needs of their constituents,” Laycock and Berg conclude. “Absent Smith, the law would have been clear and the litigation quicker, or Kansas would have complied voluntarily. The source of this tragedy is the unprotective rule in Smith. It should be overruled.”
Smith should indeed be overruled. But in the meantime people of faith can be grateful for the federal RFRA and RLUIPA statutes, as well as similar protections in place now in most states. That said, efforts to claw back the scope of the current federal statutes should be rested, and state protections should be strengthened and expanded. Among the most compelling reasons are not just the dramatic litigation wins RFRA sometimes produces but also the cases that end up never needing to be brought at all merely because the RFRA standard is in place. When states are forced to consider burdens on religious exercise, it opens the door for discussion. And when people talk to each other, these issues can often be worked out informally.
These laws typically wind up applying to very few cases, but those few cases are often of intense importance to the people affected. Turning again to Professor Laycock, “We should not punish people for practicing their religion unless we have a very good reason. These cases are about whether people pay fines, or go to jail, for practicing their religion—in America, in the twenty-first century.”2
1 Unless otherwise noted, all subsequent quotes are from Douglas Laycock and Thomas Berg’s amicus brief on behalf of the Christian Legal Society, et. al., in support of petitioners in Fulton v. City of Philadelphia, 593 U.S. 522 (2021).
2 Letter from Douglas Laycock on behalf of a group of 16 law professors addressed to Members of the Senate Judiciary Committee, Indiana Statehouse, in support of RFRA (February 3, 2015).
Article Author: Lance Kinzer
Lance Kinzer is director of policy and government relations for the Washington, D.C.–based advocacy organization First Amendment Partnership. Kinzer, an attorney, served for 10 years in the Kansas House of Representatives, including five years as chair of the House Judiciary Committee. He authored the Kansas Religious Freedom Restoration Act in 2013, the Kansas Healthcare Rights of Conscience Act in 2014, and more than 30 other pieces of enacted legislation.