Mr. Lanting, a member of South Holland Protestant Reformed Church, is a practicing attorney.

Religious Freedom Restoration Act (RFRA) gains visibility

In November of 1993 President Clinton signed into law an important law insuring a significant degree of religious freedom under the First Amendment. Although the law was supported by post religious organizations, it nevertheless took two years of debate and political maneuvering before it passed both houses of Congress.

The RFRA was passed lay Congress in response to the notorious 1990 Supreme Court decision in the case of Employment Division v. Smith. In that case a bitterly divided court held that a state law was valid even if it interfered with free exercise of religion, so long as the law was “facially neutral.”

The RFRA essentially provides that a government law of regulation may not “substantially burden” a citizen’s free exercise of his religion unless the law or regulation is (1) in furtherance of a “compelling governmental interest” and (2) is the “least restrictive means” of achieving the contemplated governmental objective (see box). The RFRA also provides that an aggrieved person may pursue legal remedies when the Act is violated.

Numerous courts in recent months have issued significant rulings interpreting the Act. In California, two Jehovah’s Witnesses refused to take an oath demanded by their employer, a California community college. The college required prospective employees to take an oath swearing to support and defend the U.S. Constitution. The two applicants refused to take the required oath on the grounds their religion prohibited taking oaths of allegiance to any entity other than God. Both applicants filed suit alleging that the college’s rejection of their employment based on their refusal to take the required oaths violated the RFRA.

The California court ruled in the employees’ favor and issued an injunction prohibiting the college from requiring the Jehovah’s Witnesses to swear an oath as a prerequisite to employment.

In another case, a landlord in Alaska refused to rent his apartment to unmarried cohabiting couples, alleging the practice violated his religious principles. Three couples filed claims of marital status discrimination alleging the landlord’s policy violated city and state laws prohibiting housing discrimination.

The Alaska supreme court ruled against the landlord who then appealed to the U.S. Supreme Court. Although the U.S. Supreme Court refused to hear the case, Justice Clarence Thomas filed a significant dissent referring to the RFRA. Justice Thomas expressed his skepticism as to whether Alaska had a “compelling interest” in marital Status discrimination, stating that if such were a compelling state interest, he was at a loss as to what state interest would not qualify as compelling.

Although the landlord did not prevail in this case, it is noteworthy that even Supreme Court justices are now looking to the RFRA to insure citizens a degree of religious freedom in this country.

Religious freedom for employees

In addition to the RFRA, another important guarantee for Christians in the work place is Title VII of the Civil Rights Act of 1964. Under this federal law, an employer must “reasonably accommodate” an employee’s religious beliefs unless doing so would cause the employer an “undue hardship.” This federal law has been used by employees with sincerely held religious beliefs to avoid union membership in a “closed shop” by payment of an amount equivalent to union dues to a recognized charity. Title VII has also been used by employees to avoid Sunday work assignments. Two recent cases demonstrate, however, that courts may be reluctant to rule in favor of employees under all circumstances.

In a recent federal appeals court decision a practicing Seventh Day Adventist refused to work on his Sabbath (from sundown Friday to sundown Saturday). His employer, the Hillsborough County Sheriff’s Detention Department had instituted a rotating shift policy. The employee was terminated after failing to report to work on a Friday evening.

The court ruled against the employee, however, because he failed to avail himself of the Department’s provisions to advertise for replacement workers on the Department’s bulletin board. The court held that the Department’s rotating shift policy was reasonable since it contained built-in provisions for employees to advertise for shift changes.

In another case, a federal court in Nebraska ruled against a Roman Catholic employee who insisted on wearing an anti-abortion button which depicted a fetus of 20 weeks. The employee was terminated after she refused to cover the button at work, which allegedly caused conflicts among employees who claimed to be disturbed by the picture of the fetus.

The court held that her employer’s request that she cover the button at work was a “reasonable accommodation” of faith commitment to wear the button until abortion was ended.

Although the decision is clearly wrong, the case illustrates that Title VII of the Civil Rights Act nonetheless requires that employers reasonably accommodate employees’ religious beliefs. Reformed Christians, and not only Seventh Day Adventists and Roman Catholics, should be, appealing to this significant federal law to avoid compulsory union membership, Sunday assignments, and other work activities, that violate an employee’s religious faith.