lawyer

Douglas Laycock, a professor at the University of Virginia Law School, writes in an email:

The issue with respect to Religious Freedom Restoration Acts (RFRAs) is whether people should be allowed to practice their religion, even when their acts would otherwise be illegal, if they are not doing any real harm. The American tradition of religious liberty has exempted religious practices since the seventeenth century. Quakers in colonial times didn't have to swear oaths, or serve in the militia.

Sometimes this is entirely uncontroversial. It is illegal to give alcohol to minors, but no one thinks that law should be applied to communion wine, or seder wine at the Jewish Passover.

For a time, the federal Free Exercise Clause (part of the First Amendment) required religious exemptions unless the government had a compelling interest in enforcing its regulation. Then in 1990, the Supreme Court changed that rule, and basically said that the free exercise of religion is protected only against discrimination.

Congress responded with the federal Religious Freedom Restoration Act in 1993, creating a statutory right to practice your religion, free of government regulation except where necessary to serve a compelling government interest. That law passed unanimously in the House, and 97-3 in the Senate; Bill Clinton praised it and signed it.

But in 1997, the Supreme Court said that the federal RFRA could not constitutionally be applied to the states. If states wanted to protect religious practice subject to the compelling interest test, they would have to do it themselves. This is the background to why states began enacting their own RFRAs.