Religious Freedom Restoration Act
To Protect the free exercise of religion.
IN THE HOUSE OF REPRESENTATIVES
March 11, 1993
Mr. MCKEON, and Mr. GALLO introduced the following bill, which was referred to the Committee on the Judiciary.
To protect the free exercise of religion.
SECTION 1. SHORT TITLE.
This Act may be cited as the “Religious Freedom Restoration Act of 1993″.
SEC. 2. CONGRESSIONAL FINDINGS AND DECLARATION OF PURPOSES.
- (a) FINDINGS.–The Congress finds
- (1) the framers of the American Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution;
- (2) laws “neutral” toward religion may substantially burden religious exercise as surely as laws intended to interfere with religious exercise;
- (3) governments should not substantially burden religious exercise without compelling justification;
- (4) in Employment Division of Oregon v. Smith the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws naeutral toward religion; and
- (5) the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder is a workable test for striking sensible balances between religious liberty and competing governmental interests.
- (b) PURPOSES. — The purposes of this Act are –
- (1) to restore the compelling interest test as set forth in Federal court cases before Employment Division of Oregon v. Smith 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.
SEC. 3. FREE EXERCISE OF RELIGION PROTECTED.
- (a) IN GENERAL. — Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).
- (b) EXCEPTION. — Government may burden a person’s exercise of religion only if it demonstrates that application of the burden to the person –
- (1) furthers a compelling governmental interest; and
- (2) is the least restrictive means of furthering that compelling governmental interest.
- (c) JUDICIAL RELIEF. — A person whose religious exercise has been substantially burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.
SEC. 4. ATTORNEY FEES.
- (a) JUDICIAL PROCEEDINGS. — Section 722 of the Revised Statutes of the United States (42 U.S.C. 1988) is amended by inserting “the Religious Freedom Restoration Act of 1993,” before “or title VI of the Civil Rights Act of 1964″.
- (b) ADMINISTRATIVE PROCEEDINGS. — Section 504(b)(1)(C) of title 5, United States Code, is amended –
- (1) by striding “and” at the end of clause (ii);
- (2) by striking the semicolon at the end of clause (iii) and inserting “; and”; and
- (3) by inserting “(iv) the Religious Freedom Restoration Act of 1993″ after clause (iii).
SEC. 5 DEFINITIONS.
- As used in this Act –
- (1) the term “government” includes a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, a State, or a subdivision of a State;
- (2) the term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, and each territory and possession of the United States;
- (3) the term “demonstrates” means meets the burdens of going forward with the evidence and of persuasion; and
- (4) the term “exercise of religion” means exercise of religion under the first article of amendment to the Constitution of the United States.
SEC. 6. APPLICABILITY.
- (a) IN GENERAL. — This Act applies to all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after the enactment of this Act.
- (b) RULE OF CONSTRUCTION. — Federal statutory law adopted after the date of the enactment of this Act is subject to this Act unless such law explicitly excludes such application by reference to this Act.
- (c) RELIGIOUS BELIEF UNAFFECTED. — Nothing in this Act shall be construed to authorize any government to substantially burden any religious belief.
SEC. 7. ESTABLISHMENT CLAUSE UNAFFECTED.
- (a) IN GENERAL. — Nothing in this Act shall be construed to affect, interpret, or in any way address that portion of the First Amendment prohibiting laws respecting the establishment of religion. Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause of the First Amendment, shall not constitute a violation of this Act.
- (b) DEFINITION. — As used in this section, the term “granting government funding, benefits, or exemptions” does not include a denial of government funding, benefits, or exemptions.
1. The use of Schedule I as a Religious Sacrament: Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006)), .
Federal Law Prohibits Housing Discrimination
The Fair Housing Act prohibits anyone from refusing to sell or rent housing to a possible buyer or tenant based on that person’s race, color, religion, sex, or national origin. This act also prohibits housing discrimination based on family status. A seller or landlord cannot refuse to sell or rent to a buyer or renter who is a parent or guardian of a person under the age of 18.
An HOA’s regulations often give the board of directors the right to approve new buyers or renters. Because an HOA must follow the rules of the Fair Housing Act, an HOA board cannot reject a new resident based on the person’s race, color, religion, sex, national origin, or familial status.
The federal Fair Housing Act and Fair Housing Amendments Act (42 U.S. Code §§ 3601-3619, 3631) prohibit landlords from choosing tenants on the basis of a group characteristic such as race, religion, ethnic background, sex, familial status or disablity.
“It shall be unlawful to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or the provision of services or facilities in connection therewith, because of race,color, religion , sex, familial status, or national origin 42 U.S.C. 3604(b)”
The FHA applies to:
• Direct providers of housing;
• Entities and associations that set terms and
conditions for housing; and
• Entities and associations that provide services
and facilities in connection with housing
Courts have held that the FHA Applies to Community
Associations — including HOA’s and Condo Associations.
Community Associations set rules and covenants that apply to
Community Associations provide services or facilities in
connection with housing.
Thus, Community Associations are “housing providers” under
♥Block v. Frischholz, 587 F.3d 771 (7thCir 2009)
Plaintiff, an orthodox Jew, sued Condominium
Association and Board president for religious
discrimination because Board refused to allow
him to have a religious display on his exterior
♥The FHA Applies to
Community Associations cont.
Housing Opportunities Project for Excellence, Inc. v.
Key Colony No. 4 Condominium Assoc., 510 F.
Supp. 2d 1003 (S.D. Fla. 2007)
Plaintiff sued HOA and HOA board members
under FHA and Florida housing laws claiming
that occupancy restrictions and rules for pool
and clubhouse discriminated against families
♥The FHA Applies to Community
Savanna Club Worship Service, Inc. v. Savanna Club
Homeowners’ Association, 456 F. Supp. 2d 1223
(S.D. Fla. 2005)
Owners of a religious club sued HOA and board
members because the HOA prohibited religious
services in common areas
Note: The Court dismissed the Plaintiff’s claims because the
HOA applied its restrictions in a neutral manner. The Court
recognized, however, that HOA’s are governed by the FHA since
they control and regulate certain property rights, such as use of
common areas and facilities.
Courts across the country have allowed lawsuits
to proceed based on discriminatory covenant
Racially-restrictive covenants were a major reason
for the implementation of the FHA in 1968.
Currently, race, religion, and national origin are
major areas of enforcement and risk for
Restrictive Covenants cont.
Tokh v. Water Tower Court Home Owner
Association, 327 Fed. Appx. 630 (7
In Tokh, a member of an HOA sued his HOA and
its Management Company for national origin and
race discrimination after being fined for enlarging
a patio in violation of the HOA’s covenants.
Potential FHA violations
HOA allows religious groups to use a community
chapel facility but not non-religious groups
Condominium Association waives fee for
Boy Scouts of America to use community room
for free but charges other groups
Community pool establishes “adult swim” hours
Community Association-controlled golf course
restricts men from playing on Tuesday mornings
• Civil Penalties include fines of up to $10,000 for a
violation of the FHA and up to $74,000 for multiple
• Injunctive and equitable relief to stop and change
practices and policies that violate the FHA
• Payment of Court costs and attorneys’ fees to the
• Individual penalties and liability for board members
and other individuals!!
Violations of the FHA that involve threats,
intimidation, or violence can also lead to
criminal fines and imprisonment.
How can a renter file a discrimination complaint?
A tenant who thinks that a landlord has broken a federal fair housing law should contact a local office of the U.S. Department of Housing and Urban Development (HUD), the agency that enforces the Fair Housing Act, or check the HUD website at www.hud.gov. (A tenant must file the complaint within one year of the alleged discriminatory act.)
HUD will provide a complaint form (tenants can fill the form out online) and will investigate and decide whether there is reasonable cause to believe that the fair housing law has been broken. If the answer is yes, HUD will typically appoint a mediator to negotiate with the landlord and reach a settlement (called a “conciliation”). If a settlement is later broken, HUD will recommend that the Attorney General file a lawsuit.
If the discrimination is a violation of a state fair housing law, the tenant may file a complaint with the state agency in charge of enforcing the law. In California, for example, the Department of Fair Employment and Housing enforces the state’s two fair housing laws.
Also, instead of filing a complaint with HUD or a state agency, tenants may file lawsuits directly in federal or state court. If a state or federal court or housing agency finds that discrimination has taken place, a tenant may be awarded damages, including any higher rent paid as a result of being turned down, an order directing the landlord to offer the rental to the tenant, and compensation for humiliation or emotional distress.
- The government’s compelling someone to do something that violates his religious beliefs, or prohibiting someone from doing something that is mandated by his religious beliefs.
- The government’s denying someone a tax exemption or unemployment compensation unless he does something that violates his religious beliefs, or refrains from something that is mandated by his religious beliefs.
- As to state and federal constitutional regimes, it’s not clear whether the above also applies when the objector’s conduct is merely motivated by his religious beliefs (e.g., the objector thinks it’s a religiously valuable thing for him to stay home on the Sabbath, rather than a religious commandment) and not actually mandated by those beliefs. The federal RFRA, many state RFRAs, and RLUIPA expressly apply to “any exercise of religion, whether or not compelled by … a system of religious belief.”
- The beliefs need not be longstanding, central to the claimant’s religious beliefs, internally consistent, consistent with any written scripture, or reasonable from the judge’s perspective. They need only be sincere.
Map of which states are covered by state RFRAs or by state constitutional exemption regimes: