Why the Religious Freedom Restoration Act Provides a Defense in Suits by Private Plaintiffs

In Employment Division v. Smith, the Supreme Court reversed course in its First Amendment doctrine, moving away from strict scrutiny protection for religious freedom and towards a more lenient standard akin to a rational basis test. Congress took action in response by enacting the Religious Freedom Restoration Act (RFRA) in 1993. In order to provide broad protections for the free exercise of religion and to provide a defense for religious beliefs against generally applicable laws, RFRA restored the pre-Smith compelling interest test. However, an ambiguity in the judicial relief section has given rise to a circuit split. Some circuits have found that RFRA does not provide a defense to religious individuals and organizations in suits brought by a private plaintiff. As a result, RFRA’s ability to provide broad religious protection has been significantly impaired. This paper resolves this circuit split, defending the conclusions in Hankins v. Lyght and finding that RFRA does provide a defense in private citizen suits. In Parts I – III, the paper applies a purely textualist analysis, closely examining RFRA’s text and its drafting history. It concludes that the judicial relief section unambiguously provides a defense in citizen suits. Part IV supplements this conclusion by excavating the legislative history surrounding the religious liberty bills – the 1993 RFRA and the proposed 1999 Religious Liberty Protection Act (RLPA.) The record is clear that Congress had a shared understanding RLPA would provide a defense in citizen suits. In discussing the merits of the bill, both proponents and opponents cited to cases with private plaintiffs and advanced policy considerations based on the assumption that RLPA would apply in citizen suits.