In 1993 Congress passed one of the most significant acts to date -- The Religious Freedom Restoration Act (RFRA). This act has the potential for reversing the negative trend in courts, legislatures and administrative departments towards religion and the often hostile decisions or actions that have resulted.

Congress enacted RFRA specifically to counteract the eroding effect recent court decisions have had on the Constitutional guarantee of free exercise of religion. Specifically, the U.S. Supreme Court decision of Employment Division v. Smith in 1990 "virtually eliminated the requirement that the government justify burdens on religious exercise" (quoted from the Congressional findings in the Act). The Court said in effect that as long as a law was neutral and applied to everyone, it could burden or prohibit the free exercise of one's religion.

This Act specifically reversed that decision and restored the original balancing test set forth in previous Supreme Court decisions -- Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972).

Summarized as follows:

1. Government may not substantially burden a person's exercise of religion even if the burden is a result of a general or neutral law;
2. The only exception to this rule is if the government can demonstrate the following three things :

a) that there is a compelling state interest;

b) that a particular law, rule, decision or action actually furthers that compelling state interest;

c) if there is a compelling state interest and this action furthers it, then the government must use the least restrictive means of furthering that compelling governmental interest.

Notice that the burden is on the government; the government cannot simply state that it has a compelling interest but it must also demonstrate each of the three requirements above.

This section also states that this Act provides a cause of action or a defense for any person whose religious exercise has been burdened, and provides for legal fees. It is important to note that the term, "person," can refer to corporate bodies as well -- such as church or religious organizations.

This section includes a very important definition. It defines "government" to include any federal, state, or local branch, department, agency, instrumentality, official or other person acting under color of law.

The change this Act has brought is already significant. During the three years prior to RFRA -- between the time that the Smith decision was handed down (1990) and RFRA was enacted (1993) -- there have been approximately 60 cases which have relied on the Smith decision. All of them were decided against the free exercise or First Amendment claims. From the time RFRA was enacted in late 1993 until May 1995, there have been over 87 court cases that have made reference to it. Although some courts have found a sufficient compelling governmental interest to warrant restriction of religious freedom, many courts have supported the free exercise rights -- some courts have found that the governmental interest was insufficient to warrant the burden on religion; others found that the government had not used the least restrictive means of achieving that interest.