RFRA and the New Thoreaus
Mark L. Movsesian
This article is part of our “The Religious Freedom Restoration Act at Thirty” series. If you’d like to explore other articles in this series, click here.
It hardly seems imaginable today, but the Religious Freedom Restoration Act, which restored strict scrutiny and made it easier for citizens to receive religious exemptions from civil laws, passed in 1993 with overwhelming bipartisan support. The vote was unanimous in the House. In the Senate, only three members objected. Thirty years ago, religious exemptions did not divide Americans politically. On the contrary, RFRA enjoyed the backing of progressive groups such as the ACLU and Americans United and conservative groups such as the American Center for Law and Justice and the Christian Legal Society. RFRA served as a model for similar legislation in the states, many of which adopted “state RFRAs” that likewise make exemptions available where a civil law substantially burdens religious exercise–unless a state can show that the law furthers a compelling governmental interest in the least restrictive manner.
Times have changed in a way that people could not have foreseen in 1993. Religious exemptions have become politically controversial. RFRA and its state analogues would not pass with similar margins today, if they would pass at all. Mostly, the controversies relate to Americans’ changing views on sexual orientation and gender identity, specifically, the question whether traditional believers who dissent from the new, egalitarian norms should receive exemptions from public accommodations and other anti-discrimination laws. In some contexts, traditional believers maintain that such laws violate their religious freedom and that the state must give them exemptions. Progressives, by contrast, see exemptions as a license to discriminate. Compromises seem impossible for many Americans on both sides.
These conflicts have received a great deal of attention from scholars. Here, though, I would like to address another social change the drafters could not have foreseen in 1993. It’s a change that also seems likely to complicate the application of RFRA, and the question of religious exemptions more generally, in coming years. I refer to the large-scale religious disaffiliation underway in the United States, the so-called “Rise of the Nones.” Thirty years ago, when Congress enacted RFRA, only 9% of Americans told the General Social Survey they did not have a religious affiliation. Today, it’s around 29%, which amounts to more than 95 million people.
Many factors seem responsible for the rise of the Nones over the past three decades: changes in family structure, including high rates of divorce and religious intermarriage; generational replacement, as Nones raise their children without religious affiliations; and the new norms regarding sexuality, which alienate some Americans, especially younger Americans, from traditional, organized religion. Crucially, the large majority of Nones are neither atheists nor agnostics. Rather, they are unaffiliated believers who fashion their own, DIY religions, often combining elements of different, and sometimes opposed, faith traditions. Nones reject exclusive, institutional religion, but not spiritual commitments as such.
Today’s Nones are the spiritual descendants of the 19th-century Transcendentalists: the new Thoreaus. Unlike the Transcendentalists, though, the new Thoreaus are a mass phenomenon. Slowly but surely, they have begun to appear in the courts (mostly outside the RFRA context for now), claiming exemptions from legal requirements based on their religious beliefs, including a number of challenges to COVID-19 vaccination and mask requirements. A recent study by Michael Heise and Gregory Sisk shows that Nones brought about six percent of religious exemption claims in federal courts from the years 2006-2015. Atheists and agnostics brought most of those claims, but unaffiliated believers brought 40 percent of them—“claims that were loosely religious or spiritual in nature but not associated with a recognized religious grouping.” These are comparatively low numbers but they likely will increase over time, especially if the percentage of Nones continues to rise.
The rise of the Nones seems likely to put increasing pressure on the very first element of a religious exemption claim under RFRA–and under the Free Exercise Clause, Title VII, and other federal and state laws as well. Do entirely personal, idiosyncratic spiritual commitments qualify as religion? Can a person who charts a completely independent spiritual path claim to exercise a religion for legal purposes?
The question turns out to be more difficult than first appears. When it comes to RFRA, itself, the statutory language does not provide clear guidance, but suggests the definition of religion should track the definition of religion for constitutional purposes. As the Supreme Court explained in Burwell v. Hobby Lobby (2014), RFRA initially made this link explicit, providing that “exercise of religion,” for RFRA purposes, meant “the exercise of religion under the First Amendment.” In 2000, however, Congress deleted the express reference to the First Amendment. RFRA now defines the exercise of religion to mean “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”
The reason for this change is a bit unclear. Congress evidently wished to distinguish protection for religion under RFRA from the Court’s First Amendment case law. In Employment Division v. Smith (1990), the Court held that the First Amendment does not generally require religious exemptions. Congress also evidently wished to clarify that RFRA covers conduct based on a claimant’s religion, even if not essential to it. But, even after the 2000 amendment, the claim still must be one that is religious in character. And Congress maintained the link to the First Amendment in another statutory provision, which indicates that RFRA should be “construed in favor of a broad protection of religious exercise, to the maximum extent permitted by … the Constitution.” For what it’s worth, the legislative history confirms that, after the 2000 amendment, “religious exercise includes any conduct that is the exercise of religion under the First Amendment.”
Indeed, it would be odd to think that the constitutional definition of religion would have no relevance for RFRA. The problem is that the constitutional definition of religion is also unclear, at least when it comes to the question of idiosyncratic spiritual commitments. As Vincent Phillip Muñoz and others have shown, the sparse drafting history reveals little about the original meaning of the Free Exercise Clause. The Framers chose to protect “religion,” which suggests a collective enterprise, rather than “conscience,” which suggests something more personal. But it is hard to know how much to make of that distinction, since the Framers’ generation, influenced by both Lockean and Evangelical thought, saw religious freedom principally as a natural right possessed by individuals.
The Supreme Court’s approach to defining religion for Free Exercise purposes also fails to offer much guidance. In one important case, Wisconsin v. Yoder (1972), which involved the Amish, the Court indicated that religion means a traditional faith community rather than a purely personal quest. Indeed, the Court gave Thoreau as a counter-example: the Amish qualified as a religion, the Court explained, but Thoreau would not. In two later cases, though, Thomas v. Review Board (1981) and Frazee v. Illinois Department of Employment Security (1989), the Court suggested that religion is indeed a personal phenomenon, and that someone claiming an exemption need not adhere to an orthodox interpretation of the religion to which he belongs, or belong formally to an organized religion at all. Neither decision expressly rejects Yoder’s earlier, collective definition of religion, however, and both contain language suggesting that entirely personal spiritual commitments, detached from any faith tradition, cannot qualify as religious for purposes of the Free Exercise Clause.
In short, the question whether RFRA’s definition of “religion” includes idiosyncratic, personal beliefs is not entirely clear. To be fair, when Congress enacted RFRA in 1993, one could dismiss the question as peripheral. As I have explained, at the time, more than 90% of Americans claimed a religious affiliation, and the question of idiosyncratic convictions did not have great legal significance. The Rise of the Nones has changed things. As Nones become more established in our religious culture, one can imagine many claims for exemptions based on idiosyncratic spiritual commitments: a vegetarian diet in prison, for example, or the right to wear certain clothing or insignia in the military–or, as has already occurred, an exemption from public health requirements, like vaccination and mask mandates.
The rise of the Nones thus makes it likely that courts will have to grapple seriously with the definition of religion for purposes of RFRA–as well as the Free Exercise Clause and other laws. As I have argued elsewhere, the best approach would be a flexible one. At its core, religion means a collective phenomenon, a community of believers that exists through time, not a solitary spiritual quest. In common understanding, religion has always suggested a group of people linked together in worship. As sociologist Christian Smith writes, “religions are almost invariably social activities—communities of memory engaged in carrying on particular traditions.” Without a communal structure to give them meaning, religious practices such as prayer, fasting, and so on are incoherent, “simply the strange doings of odd people.”
Protecting beliefs and practices that are tied to a religious community, rather than purely idiosyncratic ones, promotes important associational values. By encouraging people to identify with and look out for one another, private associations militate against self-centeredness and social isolation and help keep the state in check. Religious groups perform this function especially well. No associations have been better, historically, at promoting cooperative social projects and defying state oppression. In addition, defining religion in communal terms reduces the dangers of fraudulent claims. The existence of a religious community can provide powerful evidence of a claimant’s good faith.
On the other hand, categorically limiting legal protection to collective beliefs and practices would create two serious problems. First, excluding non-institutional, idiosyncratic beliefs would contradict a long American tradition of honoring individual religious conscience. Unaffiliated believers like Thoreau and his spiritual descendants reflect something important about the way we historically have understood religion in the United States and the way we continue to understand it today. Second, limiting religion to communal beliefs and practices would entail difficult line-drawing problems. Most religions have both majority and minority strains, and religions that have existed for millennia typically have many expressions. Determining which expression among many qualifies as the “true” representative of a religious tradition can be difficult.
Thus, the proper definition of religion would be a flexible one with community at its core. The more a plaintiff can tie his or her beliefs and practices to those of an established religious community, the more the plaintiff’s claims should qualify as religious for legal purposes. By contrast, the further a plaintiff diverges from a religious community, the more idiosyncratic his or her spiritual path, the less plausible the plaintiff’s claim to exercise a religion becomes.
To be sure, this approach would not settle questions in the manner of a bright-line rule. It would consider specific facts and depend a great deal on judgment; in any particular case, whether a claim qualifies as religious may be genuinely uncertain. Nonetheless, this approach would offer the benefits of tying religion to common understandings and avoiding some of the problems associated with defining religion in idiosyncratic terms, while remaining true to our cultural and legal traditions and minimizing the difficulties that a more categorical approach would entail.♦
Mark Movsesian is the Frederick A. Whitney Professor and Co-Director of the Center for Law and Religion at St. John’s University.
Movsesian, Mark. “RFRA and the New Thoreaus.” Canopy Forum, October 24, 2023. https://canopyforum.org/2023/10/24/RFRA-and-the-New-Thoreaus/.