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Placing Religion Above All Else


By: Kristen Mishler, Volume 101 Staff Member

In January of this year, The Nation and Reveal obtained copies of a draft proposed executive order under consideration by President Trump.[1] Although several of President Trump’s executive orders have proven controversial, execution of this one could render others pale in comparison.

Pandering to conservative Christians, this order places priority on religious belief and refers directly to the Religious Freedom and Restoration Act of 1993 (RFRA).[2] That Act sought to return the compelling interest test to the analysis of laws that infringe on an individual’s ability to act according to their religious beliefs, essentially making exemptions to laws easier to obtain when based on religious reasons.[3] Since its execution in 1993, RFRA has undergone a number of changes in its meaning as the result of both judicial and legislative efforts.[4] By considering the development and current state of RFRA alongside the potential effects of the draft order on religious freedom, the divergence of the Trump administration’s order becomes starkly apparent.


Prior to RFRA, exceptions to anti-discrimination laws based on religious freedom were governed largely by Sherbert v. Verner[5] and Wisconsin v. Yoder.[6] These cases established a federal balancing test to evaluate First Amendment-based exceptions to anti-discrimination laws. According to the Sherbert Court, the burden of a person’s free exercise of religion by a facially neutral law can only be justified by a compelling state interest with a demonstration that “no alternative forms of regulation would combat such abuses without infringing First Amendment rights.”[7] Alignment of an individual’s actions with her religious belief, however, does not ensure it is free from regulation under the Act; but any such action requiring regulation must have “invariably posed some substantial threat to public safety, peace or order.”[8] Thus, under Sherbert, exemption from laws that protect public safety, peace, and order should be less easily obtained.

In 1990, Employment Division, Department of Human Resources of Oregon v. Smith held that the “right of free exercise does not relieve [an] individual of [the] obligation to comply with [a] valid or neutral law of general applicability on [the] ground that [the] law proscribes, or requires, conduct that is contrary to his religious practice.”[9] In Smith, “the Court discarded the compelling governmental interest standard of scrutiny previously applied to generally applicable laws burdening the free exercise of certain religions.”[10]

In response to the perceived lack of religious freedom protection in Smith, Congress passed RFRA in 1993, which referred directly to Smith in its findings and explicitly outlined the statute’s purpose as:

(1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and (2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government.[11]

RFRA also included direct reference to the First Amendment protection of free exercise when it defined “exercise of religion.”[12]

In City of Boerne v. Flores (1997), the Supreme Court held that the “substantial costs RFRA exacts . . . far exceed any pattern or practice of unconstitutional conduct under the Free Exercise Clause as interpreted in Smith. Simply put, RFRA is not designed to identify and counteract state laws likely to be unconstitutional because of their treatment of religion.”[13] It also said that RFRA’s “least restrictive means requirement was not used in the pre-Smith jurisprudence RFRA purported to codify.”[14]

To clarify its intentions after City of Boerne, then, Congress enacted the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA).[15] RLUIPA deleted the reference in RFRA to the First Amendment and defined the “exercise of religion” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”[16] Congress also mandated that this concept “be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.”[17]

Over time, the elements of a RFRA claim have come to include a sincerity of belief, a burden on the person whose religious belief differs from what the law requires, a compelling state interest, and the least restrictive means of achieving the state interest.[18] Exception requires that both of the first two elements are met and at least one of the last two fails.[19] Although the Sixth Circuit in Autocam Corp. v. Burwell said in 2014 that a secular, profit-seeking corporate employer was not a “person” capable of “religious exercise” as intended by RFRA,[20] the Supreme Court explicitly overturned that decision in Burwell v. Hobby Lobby when it held that the meaning of “person” for RFRA purposes included for-profit corporations.[21] Thus, any person, which includes for-profit corporations, is eligible for a RFRA exemption if he has a sincere belief that is burdened by following the law and the State cannot show that it has a compelling interest or it fails in showing that enforcement of the law is the least restrictive means of achieving that goal.


Hobby Lobby dramatically extended the reach of RFRA, but the draft executive order on religious freedom goes even further. It uses RFRA as the foundation upon which the violation of civil rights may be excused, employees are not required to perform routine functions, and preventive healthcare can be denied in contradiction to federal mandates.[22] Although Sherbert—the decision underlying RFRA—indicates that exemptions should be more difficult to obtain in the case of ensuring “public safety, peace, or order,” the draft executive order on religious freedom denies such restriction and instead places priority on religious freedom and expression.[23]

The draft order excuses discrimination that results from the belief that sexual relations should only occur between a man and a woman and within the context of marriage.[24] This justifies discrimination against individuals who are sexually active but not married, as well as discrimination against all LGBTQ people, whether married or not.[25] By excusing such discrimination, this draft executive order would work counter to civil rights laws and policies that prohibit discrimination based on sex, such as Title VII of the Civil Rights Act of 1964.[26] For years, that Act’s definition of “sex” has been interpreted to include marital status and sexual orientation.[27] Recent Supreme Court decisions have validated that interpretation by indicating that such discrimination is unconstitutional.[28]

Not only would an executive order attempting to reverse years of jurisprudence and federal agency policy cause confusion and chaos in daily operations of the federal government and many others, it would legitimize the beliefs and actions of hate groups across the country.[29] LGBTQ persons have fought for many years to establish the right to equal treatment and this executive order attempts to destroy all the progress that has been made.

The draft order grants religious exceptions to all executive branch departments and agencies—including those who work in social services, education, and healthcare—and allows them to refuse to perform routine tasks that are part of their job descriptions.[30] Currently, employees may refuse to perform work-related duties only in limited circumstances.[31] Under RFRA, they must comply if the government exhibits a compelling interest in that compliance. Although Hobby Lobby greatly enhanced the reach of RFRA by including closely held for-profit corporations in the definition of “person,” RFRA has not given the free discretion to religious-based work exceptions that is seen in the draft order.

In addition to justifying discrimination and job duty refusals, President Trump’s draft executive order excuses the denial of preventive healthcare. Specifically, it allows any employer to refuse to conform to federal mandates requiring that the health insurance offered to employees include coverage of birth control.[32] Essentially extending the reach of the controversial Hobby Lobby decision that allowed closely held for-profit corporations to claim the exemption, this draft order exempts from the Affordable Care Act’s preventive-care mandate any person or organization that objects to the mandate on religious or moral grounds.[33]

Signing of this order can wreak havoc on public safety, peace, and order by legitimizing discrimination, excusing employee refusal to perform routine tasks, and denying mandated access to healthcare. Far from the balancing test envisioned by the authors of RFRA and developed over time, Trump’s executive order prioritizes expression of religious beliefs above federal law governing civil rights, established labor practices, and healthcare mandates.


  1. Sarah Posner, Leaked Draft of Trump’s Religious Freedom Order Reveals Sweeping Plans to Legalize Discrimination, The Nation (Feb. 1, 2017), (including a copy of the draft executive order, “Establishing a Government-Wide Initiative to Respect Religious Freedom,” and the text of the order); Jennifer Gollan, Draft of Proposed Order Allows Firing Based on Religion, Reveal (Feb. 1, 2017),
  2. See Posner, supra note 1 for text of the draft order; see also Catholic News Serv., Trump’s Stalled Action on Proposed Religious Freedom Order Raises Concerns, Catholic Herald, (last visited Apr. 6, 2017) (indicating that signing of the religious freedom executive order could pacify those who support the First Amendment Defense Act, an Act that is not likely to be passed this year and that prevents the federal government from discriminating against a person for acting on their belief that a marriage is between a man and a woman); United States Conference of Catholic Bishops, Action Center, Urge President Trump to Sign Executive Order Respecting Religious Freedom, (last visited Apr. 4, 2017) (offering voters a template letter to send President Trump that says, “Our most cherished liberty has suffered years of unprecedented erosion in America.”).
  3. Religious Freedom Restoration Act, Pub. L. 103-141, 107 Stat. 1488 (1993) (noting the legislative purpose of restoring the compelling interest test) (codified at 42 U.S.C. §§ 2000bb–2000bb-4 and later amended by Pub. L. 106-274, 114 Stat. 806 (2000)).
  4. As described in the text that follows, those changes resulted largely from City of Boerne v. Flores, 521 U.S. 507, 535 (1997), the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc–2000cc-5 (2000), and Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).
  5. 374 U.S. 398 (1963).
  6. 406 U.S. 205 (1972).
  7. Sherbert, 374 U.S. at 407. Compare Clair Mullally, Free-Exercise Clause Overview, First Amend. Ctr. (Sept. 16, 2011), the Sherbert test with the “least restrictive means” test and considering Sherbert to be the first use of the “least restrictive means” test), with Marci Hamilton, God vs. the Gavel, 258–60 (2014) (arguing that Sherbert’s test and Yoder’s narrow tailoring are very different from RFRA’s “least restrictive means” and that the “least restrictive means” test is much stricter and was developed first in RFRA).
  8. Sherbert, 374 U.S. at 403 (emphasis added); see also U.S. Const. Amends. I, XIV.
  9. 494 U.S. 872, 879 (1990).
  10. Mary L. Topliff, Annotation, Validity, Construction, and Application of Religious Freedom Restoration Act (42 U.S.C.A. §§ 2000bb et seq.), 135 A.L.R. Fed. 121 (1996). See contra Hamilton, supra note 7, at 257. Although the Smith Court seemed to take a very different turn from Sherbert jurisprudence, it noted that it had “never invalidated any governmental action on the basis of the Sherbert test except the denial of unemployment compensation,” and that it had “never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” Smith, 494 U.S. at 878–79.
  11. 42 U.S.C. § 2000bb.
  12. RFRA § 5(4), amended by RLUIPA § 7.
  13. 521 U.S. 507, 534–35 (1997).
  14. Id. at 535.
  15. 114 Stat. 803, 42 U.S.C. § 2000cc.
  16. Id. at § 2000cc-5(7)(A).
  17. Id. at § 2000cc-3(g).
  18. See, e.g., Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).
  19. See, e.g., id.
  20. 134 S. Ct. 2901 (2014).
  21. Hobby Lobby, 134 S. Ct. at 2768.
  22. Posner, supra note 1 (offering the text of the draft order); see also Antonia Blumberg, Draft of Trump “Religious Freedom” Executive Order Signals Major Win for Conservative Christians, Huffington Post (Feb. 2, 2017),; Tom Spiggle, Trump’s Religious Freedom Order Could Wreak Havoc in the Workplace, Industry Week (Feb. 24, 2017),
  23. Sherbert v. Verner, 374 U.S. 398, 403 (1963).
  24. See Posner, supra note 1 (quoting the draft proposed order).
  25. Id. (quoting the draft order at section 4).
  26. 42 U.S.C. §§ 2000e–2000e-17.
  27. What You Should Know About EEOC and the Enforcement Protections for LGBT Workers, Equal Emp’t Opportunity Comm’n, (last visited Apr. 6, 2017).
  28. See United States v. Windsor, 133 S. Ct. 2675 (2013) (holding that the Defense of Marriage Act’s definition of marriage as the union between a man and a woman is unconstitutional); Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (holding that same-sex couples have the fundamental right to marry).
  29. See James Cook, U.S. Election: Trump and the Rise of the Alt-Right, BBC News (Nov. 7, 2016),; Alan Rappaport & Noah Weiland, White Nationalists Celebrate “An Awakening” After Donald Trump’s Victory, N.Y. Times (Nov. 19, 2016),; see also Eric Lichtblau, U.S. Hate Crimes Surge 6%, Fueled by Attacks on Muslims, N.Y. Times (Nov. 14, 2016),
  30. Section 3(b) of the draft order says that “[p]ersons do not forfeit their religious freedom when providing social services, education, or healthcare; earning a living, seeking a job, or employing others; receiving government grants or contracts; or otherwise participating in the marketplace, the public square, or interfacing with Federal, State, of local governments.” See Posner, supra note 1.
  31. Spiggle, supra note 22.
  32. Posner, supra note 1 (quoting the draft proposed order at section 4).
  33. Id.