The Religious Freedom Restoration Act (RFRA) may have perished, but its truth is marching on. This week the Supreme Court ruled that Congress exceeded its authority in passing RFRA. Now Americans at all levels of government can honor their offices by acting in the spirit of the law's protection of religious rights from unjustified official restrictions.
The good news is that some state constitutions already have strong protections for religious freedom, and many state legislators are no less conscientious in ensuring such protection than the congressional galaxy that sponsored RFRA in 1993 - Sen. Orrin Hatch (R) of Utah, Sen. Edward Kennedy (D) of Massachusetts, Rep. Newt Gingrich (R) of Georgia. They were part of a virtually unanimous Congress cheered on by an unprecedented ecumenical coalition of dozens of civil-liberties and religious groups - and by much of the public at large - to preserve strong protection for religious freedom.
This strong protection had been lost in 1990 when the Supreme Court ruled, in effect, that government could restrict religious practices under general nondiscriminatory laws without demonstrating a compelling state interest. RFRA stepped into the vacuum, affirming that government could restrict religious practices only if it could show a "compelling" state interest for doing so - and that it was furthering such an interest with the "least restrictive" means. Thus public health and safety, for example, were protected, and so were religious practices, even unusual ones, that did not threaten those interests.
Now, in a Texas case involving RFRA, the high court says Congress unlawfully usurped its power. But, thankfully, the RFRA coalition will remain active. Its vigor was summarized in a post-decision statement by Senator Hatch: "Whenever we place government over religion to the extent that government doesn't have to show a compelling reason, we infringe on religion."
RFRA advocates may try to redraw the law, or even seek a constitutional amendment that courts must observe. We encourage them to intensify efforts for more guarantees of religious freedom in the states.
In accord with the Battle Hymn, let us all keep freedom marching on.