RFRA, once an acronym spoken only in academic halls and legislative debates, has become a household subject across America. The federal Religious Freedom Restoration Act and its state counterparts have been demonized by some and glorified by others. The underlying assumption of these laws is that courts, if left to their own devices, will fail to protect religious liberties from infringement by the State, and therefore legislation is necessary to more robustly protect these freedoms. An examination of this underlying assumption will provide a look at where the RFRA saga began, where it stands today, and where it is heading.
Our story begins in the late 1980s, when Alfred Smith and Galen Black — both members of the Native American Church — had their Oregon state employment terminated for ingesting peyote in violation of state law. The two claimed that, as peyote use was a part of their religion, their termination was a violation of their religious freedoms and therefore unconstitutional. The case eventually reached the United States Supreme Court, which somewhat surprisingly held that since the statute banning peyote was a “neutral law of general applicability,” the plaintiffs could not use their religious beliefs as an excuse to violate the law.
The case — Employment Division v. Smith — sent shockwaves across the nation, and for a brief (and rare) moment, special interests on both the Left and Right were united in their belief that something had to be done. In 1993, this broad coalition convinced Congress to pass the Religious Freedom Restoration Act, which required the application of a robust strict scrutiny standard in religious liberty cases. Strict scrutiny is the highest standard of review available, meaning that RFRA directed courts to uphold infringements on religious liberties only when necessary to serve a compelling state interest.
Case closed, right? Wrong. In 1997, the Supreme Court held that the federal RFRA legislation applied only to the federal government, and not the states — a somewhat ironic conclusion given that the catalyst for federal legislation was an Oregon state law.
However, by 1997 the original broad coalition that pushed through the federal RFRA had fallen apart. The remaining consensus favored applying RFRA-like legislation to the states only in cases involving land use and prisoners’ rights. A weakened coalition led to a weakened version of RFRA – the Religious Land Use and Institutionalized Persons Act, or RLUIPA. This new federal law applied robust judicial protection of religious liberties to the states only in a very limited set of cases. This left few protections for religious liberties at the state level.
Many states responded by enacting their own state RFRA legislation. To date, 21 states have passed laws that provide robust protections for religious liberties against state and local governments. As of this writing, North Carolina has passed no RFRA legislation. So what is the standard in religious liberty cases in North Carolina?
In line with the rest of RFRA history, the answer to this question is very complicated. While some state courts have directly addressed Employment Division v. Smith, North Carolina courts have not done so. The most direct treatment of the issue in North Carolina comes in the 1996 case of Matter of Browning, when the North Carolina Court of Appeals wrote:
“One may not be compelled by governmental action to do that which is contrary to his religious belief in the absence of a ‘compelling state interest in the regulation of a subject within the State’s Constitutional power to regulate.’”
The Browning court could have directly addressed Employment Division v. Smith, but chose not to do so, and in fact referenced North Carolina case law dating far before the 1980s – possibly signaling that North Carolina courts would ignore developments in federal law altogether.
The Browning case might be used to argue that North Carolina already has a strict scrutiny standard in religious liberty cases. Ellis Boyle, a Raleigh attorney, will likely make this argument in a case filed last week on behalf of two former state magistrates who opted to resign rather than face civil and criminal penalties for refusing to marry same-sex couples. Boyle is, understandably, seeking the highest protection possible for his clients’ religious convictions.
However, were Boyle to make this argument, it would hardly render North Carolina’s proposed RFRA legislation unnecessary. The North Carolina courts have not directly addressed Smith, and judicial opinions are subject to interpretation and revision over time. Even should Boyle secure an opinion from our appellate courts affirming that North Carolina case law provides robust protections for religious liberties, it could take months or years to achieve such a result. There is always room for the legislature to provide clarity on such fundamental issues.
In short, RFRA’s history is extremely complicated, which is unfortunate in a news media culture driven by sound bites and sensationalism. Hopefully, the future will bring clarity to how North Carolina protects religious freedoms, whether via judicial opinions, legislation, or both.