On January 31, 2020, a U.S. district court in Arizona held that the Religious Freedom Restoration Act (“RFRA”) protects the rights of religiously motivated individuals to place water, and other supplies, in areas where migrants are likely to encounter dangerous conditions. That holding might surprise some readers who have heard the false narrative that religious liberty is primarily a tool of “the Christian right” to oppress minorities. This recent opinion, like many others, undermines that slander and clearly explains how each aspect of RFRA protects heterodox and minority views.
The case, United States v. Hoffman, involves the prosecution of volunteers who entered a wildlife refuge without a permit, in order to provide illegal immigrants with supplies in a particularly dangerous area. The defendants argued that the case should be dismissed, because they were acting out of sincere religious conviction and were therefore protected by RFRA. They explained that they did not obtain a permit because the relevant permits prohibited leaving supplies in the refuge, the very act that they felt religiously compelled to carry out.
Applying RFRA, the district court dismissed the prosecution’s case. RFRA is a federal statute intended to enhance protections for the free exercise of religion. It states that “Government shall not substantially burden a person’s exercise of religion” unless doing so is the least onerous way to further a compelling government interest. In dismissing this case, the court demonstrated how various provisions of RFRA are designed to protect religious minorities.
RFRA Defines Religion Broadly
Applying RFRA to the facts of this case, the court first addressed the question of what constitutes a religion for the purposes of RFRA. The court explained that the statute’s protections are broad and inclusive: they are intended to protect all sincere religious beliefs. Judges cannot substitute their own judgments for those of a litigant regarding the validity of his religious beliefs. It is irrelevant whether the judge considers the religious beliefs in question “logical, consistent,” or even “comprehensible.” The only thing that matters is what the litigant sincerely believes. The ultimate question is whether defendants’ beliefs are religious “in [the] Defendants’ own scheme of things.”
This approach protects all religious beliefs, no matter how idiosyncratic or strange they may seem to a majority of people. A judge is unlikely to doubt the validity of any of the prominent religions that are followed by many Americans; RFRA’s broad definition of religion ensures that minority faiths that hold unpopular opinions be protected as well. In fact, the court expressly noted that RFRA protects “nontraditional beliefs”: RFRA’s expansive definition of religion protects all religious beliefs, even if they are countercultural and held by only a small number of sincere believers.
In this case, the practice at issue—placing supplies in a desert—was fairly unusual; but there was significant evidence that the defendants were motivated by religious faith. To name a few examples, the defendants were associated with a church; they claimed to be motivated by religious and spiritual impulses; they recited prayers; and they used religious iconography on their supplies.
Without Evidence to the Contrary, the Law Presumes One’s Religion to Be Sincere
Next, the court explained the appropriate method for determining whether a litigant’s stated religious belief is sincere. While RFRA prohibits judges and government officials from inquiring into the “validity” of a religious belief, they may determine whether the adherent is invoking sincerely held beliefs. This leads to an important question: How are judges supposed to decide whether a religious believer is sincerely expressing his faith or lying to avoid legal liability?
The court again adopted a properly deferential approach, in order to avoid substituting its own religious judgments for those of the party before the court. The judge explained that the party’s claims are given “great weight,” and the judge’s role is only to determine “whether the claimant is (in essence) seeking to perpetrate a fraud on the court.” The opinion cited examples of cases in which a party’s claims of religious belief were deemed insincere. In one case, the defendant had admitted to co-conspirators that he was attempting to manufacture a religious liberty defense. This is the type of concrete and objective evidence necessary to invalidate a litigant’s claim to religious observance.
This judicial deference to the parties’ explanations of their faith is especially important to religious minorities. Judges naturally are more likely to doubt the sincerity of obscure and seemingly strange practices of religious minorities than they are to doubt the sincerity of well-known practices of religious majorities.
It is understandable that a judge might find a practice that he has never heard of more suspicious than one he has experienced. Most judges are familiar with why a Christian in the military might need an accommodation related to Easter or Christmas; they would never think to doubt the sincerity of such a request. But those same judges might be less familiar with accommodations needed by a Jewish soldier, such as to eat in an outdoor booth and carry a palm branch on the holiday of Sukkot. Both are genuine religious requirements, but they might seem odd and insincere to a judge who previously had never heard of them. By requiring concrete evidence of insincerity, judges can eliminate any temptation to deem adherents with familiar beliefs to be more sincere than those with unfamiliar beliefs.
In this case, the judge likely had never encountered this exact religious practice previously; but she correctly found that the government had not provided any evidence that the defendants were “patently devoid of religious sincerity.” It did not matter that the defendants may have had secular or political motivations in addition to religious ones. The defendants’ behavior and testimony demonstrated that they had a sincere religious belief, and the government could not provide any tangible evidence that they were lying, so the defendants’ behavior was protected by RFRA.
No “Substantial Burdens” Even on the Least of One’s Religious Beliefs
After this discussion, the court turned to the question of whether the law placed a “substantial burden” on the defendants’ religious liberty by prohibiting them from leaving supplies in the desert. RFRA only protects religious adherents from substantial burdens on their faith. This requirement has been one of the most misunderstood provisions of the statute, with some claiming that a “substantial burden” only exists if the law in question requires religious adherents to violate a particularly important or “substantial” obligation of their faith.
This is absurd. Courts have no expertise or authority to decide the relative importance of different religious requirements. What standard would a judge apply to determine the importance of Jewish practices, such as abstaining from wearing clothing that contained both wool and linen, or ritual hand washing before eating bread? There is simply no way that a judge in a secular court of law could answer such a question without becoming a theologian and opining on matters far beyond the government’s purview. Yet, in the past, the Obama Administration made this argument in defense of its regulation that forced employers—including nuns—to provide their employees with abortion-inducing drugs. The administration argued that, since the regulation did not force the employers to use abortion-inducing drugs, or to purchase them directly, it imposed only a minor burden on their faith. This argument was rejected by the Supreme Court in its Hobby Lobby decision.
The Hoffman court, following common sense and the consistent holdings of the Supreme Court, rejected the same argument. The court held that the government had imposed a substantial burden on the defendants, because it placed “considerable pressure” on them “to abandon the religious exercise at issue.” The relevant “substantial burden” is the pressure imposed by the government, and not the gravity of the religious offense. The government cannot use significant fines or the threat of criminal prosecution to coerce a religious adherent into violating his faith, no matter how trivial the government considers the adherent’s beliefs to be.
This interpretation protects religious minorities in much the same way as the provisions already discussed. A judge is likely to recognize the importance of religious practices that are observed by major faiths, especially if he has personal experience of those practices; he is less likely to understand the importance of obscure practices held by religious minorities. For example, during an oral argument, a judge on the Fifth Circuit Court of Appeals once remarked that he doubted that any faith would consider turning a light bulb on and off every day to be religiously significant. He was unaware of the fact that many Orthodox Jews consider using electricity on the Sabbath to be a grave violation of the Ten Commandments. Any inquiry into the importance of a particular practice is likely to disadvantage religious minorities that have unfamiliar practices. Fortunately, such an inquiry is prohibited by the Supreme Court’s precedent as well as by RFRA’s plain text. All religious practices are treated the same. A statute imposes a substantial burden on a religious adherent if it threatens him with significant legal consequences for violating any tenet of his faith.
Compelling Interest, Least Restrictive Means
Contrary to a popular myth, RFRA does not enable religious believers to violate any law with impunity. The government may enforce a law that burdens an adherent’s faith if doing so is the least burdensome way—or “least restrictive means”—to accomplish a compelling government interest.
It is essential that courts interpret this exception narrowly to prevent it from swallowing the rule. If courts gave the government broad leeway to decide which laws fit into this exception, it could use that ambiguity to target unpopular faiths. Fortunately, the rigorous “least restrictive means” test requires objective evidence and leaves little room for such bias.
The Hoffman court rejected the government’s argument that enforcing the prohibition on leaving supplies was necessary in order to protect the pristine nature of the refuge. The judge noted that the desert in question is a former bombing range that is traversed by illegal immigrants and law enforcement. The facts simply did not demonstrate that religious volunteers threatened the “pristine” nature of the refuge. She also rejected the government’s argument that the volunteers interfered with immigration enforcement, as it was not supported by objective evidence.
The court dismissed the government’s argument that allowing an exception for these religious volunteers might “lead to a flood of religious objections.” The Supreme Court has rejected such subjective “slippery slope” arguments. In order to prevail on a least-restrictive-means argument, the government must provide specific evidence, on a case-by-case basis, that demonstrates why the law must burden a particular religious adherent’s faith.
Finally, the court held that, even if it were to credit any of the government’s compelling interests, the government had not demonstrated that the prohibition against leaving supplies was the only possible way to accomplish those goals. Before the government can burden an adherent’s faith, it must prove that there are no alternative methods for achieving its ends.
At every step of its analysis of this exception, the court required objectively verifiable evidence and eliminated as much subjectivity as possible. RFRA’s exception allows the government to burden adherents’ religious exercise when doing so is genuinely necessary to accomplish the government’s most important functions. However, by requiring that the government demonstrate such necessity through objectively verifiable evidence, the law attempts to ensure that the exception not be administered in a manner that would burden religious minorities.
RFRA Is Used to Protect Religion, Not Oppression
Liberal advocacy groups, aided by some members of the press, have crafted a narrative according to which religious liberty protections are, allegedly, used primarily by the Christian majority to oppress unpopular minorities, especially those who identify as LGBT. Empirical research has demonstrated that this is untrue: religious liberty laws are often utilized by members of minority faiths—including Muslims, Jews, and Native Americans—in cases that have nothing whatsoever to do with LGBT individuals. The Hoffman court’s RFRA analysis clarifies how the law actually works, and demonstrates that it protects religious minorities.
