On July 1, 2009, Tennessee Governor Phil Bredesen signed the Religious Freedom Restoration Act into law. Introduced in February, House Bill 1598 requires Tennessee courts to apply the “compelling state interest” test to cases in which a law substantially burdens one’s right of free exercise of religion. The state now has the burden of proving that the law furthers a “compelling state interest” and is the “least restrictve means” of furthering that interest.
To those unfamiliar with first amendment litigation, this may seem like a confusing set of terms, but the new law takes a very important step forward. Before this law was in place, the Tennessee legislature could pass a law that applied equally to everybody but could inadvertently disrupt somebody’s free exercise of religion. For instance, the state could pass a law that all high school examinations were to be held on Sunday. If a student who had a religious objection refused to take the test on Sunday and requested accommodation such as another day, the state could deny the accommodation on the grounds that the law applied equally to all students and that this student had not been discriminated against because of his religion. It would be a “facially neutral” law that did not “discriminate” against anybody.
This new law would require the state to prove that the Sunday test was essential to further a “compelling governmental interest” and that it was the “least restrictive means” of furthering that interest. In other words, the state would have to demonstrate that it had a very good reason for scheduling the testing for Sunday and a very good reason for denying a student an opportunity to schedule around it. If the state still refuses and the student has to sue in order to graduate from high school and the student wins, the court may award attorney’s fees and court costs as reimbursement for the expenses of litigation.
This new law is a local state response to the U.S. Supreme Court decision in City of Boerne v. Flores, 521 U.S. 507 (1997) which ruled that a similar Religious Freedom Restoration Act passed by the U.S. Congress was unconstitutional. Tennessee joins 15 other states that have now enacted religious freedom acts.
(Please note that the Religious Freedom Restoration Act (RFRA) which addresses any type of government action in Tennessee is not to be confused with the recently passed Oregon Workplace Religious Freedom Act (WRFA) which requires Oregon employers to make reasonable attempts to accommodate religious observances of holy days and religions dress of their employers.)