The Connecticut General Assembly

OFFICE OF LEGISLATIVE RESEARCH

December 22, 1994 94-R-1038

TO:

FROM: Lawrence K. Furbish, Assistant Director

You asked for an analysis of Public Law 103-141, the Religious Restoration Act of 1993, and you wanted to know how it relates to state law.

This law, which was passed by Congress and signed by President Clinton on November 16, 1993, is designed to overturn a United States Supreme Court decision, Employment Division v. Smith, 110 S. Ct. 1595 (1990). We have enclosed an summary of the Smith decision (OLR memo 91-R-0619). Prior to the Smith decision the government had to prove a "compelling state interest" in order to justify a law or action on its part that placed an undue burden on someone's right to practice their religion. In Smith the Court held that the constitutional right of free exercise of religion does not relieve individuals of their obligation to comply with valid or neutral laws of general applicability, as long as the law does not violate other constitutional protections. The Smith decision was controversial and as soon as it was announced attempts to overturn it legislatively commenced.

The federal act contains a set of Congressional findings and a declaration of purpose. In part it finds that the framers of the Constitution considered the free exercise of religion an unalienable right and that government should not substantially burden religious exercises without compelling justification. The text of the act states that its purpose is 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 the application of this test in all cases where the free exercise of religion is substantially burdened by the government.

The act prohibits the government from substantially burdening a person's exercise of religion, even if the burden results from a law of general applicability, unless the government can demonstrate that the burden is in furtherance of a compelling governmental interest and that it is the least restrictive means of furthering that interest.

The act gives anyone who feels that his right to freely practice his religion is being unduly burdened the right to assert a violation of this act as a defense against the government. It also contains provisions granting attorney's fees to prevailing parties in such cases, defining terms, making the law applicable to all federal and state law, and finally specifying that its provisions should not be construed as effecting the portion of the First Amendment prohibiting laws respecting the establishment of religion.

Connecticut passed its state version of the act in 1993 before the federal one was passed. It is PA 93-252, An Act Concerning Religious Freedom. We have enclosed a copy of the act and of our summary of it. Connecticut's act is very similar to the federal act, although there are small differences in wording. The state law speaks of a "burden" and the federal law of "substantially burden." It is not clear if courts would use the test developed over the years by a series of court decisions so it is uncertain if these differences in wording would have any substantive effect.

The federal act would apply in Federal Court or state court in cases brought under federal law or the federal Constitution. Connecticut's law would apply in cases brought under our state law or constitution. The legal effect of both acts would be the same, to require the courts in deciding any case challenging a governmental action as an impermissible infringement on a person's right to practice their religion to apply the pre-Smith decision test, namely compelling state interest.

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