What a state RFRA does and does not do, in twelve plain questions

Few statutes in modern politics have been described so confidently by people who have not read them. When a state religious freedom restoration act comes up, the headline tells you what it means, the pundit tells you what it hides, and the text, which is usually a page or two long, goes unread.

So let us read it. This post answers twelve plain questions about what a state RFRA does and does not do. A few ground rules. I will define terms, distinguish facts from opinions, and say where the law is unsettled. I am describing the landscape, not giving legal advice about your own situation. And since "RFRA" is a family of statutes, not one law, every answer comes with the same instruction: check your own state's text.

Where RFRAs came from

1. What is a RFRA, and where did it come from?

A religious freedom restoration act is a statute that gives people a legal claim when the government burdens their religious practice. The federal version, the Religious Freedom Restoration Act of 1993, was Congress's answer to the Supreme Court's decision in Employment Division v. Smith (1990). In Smith, the Court held that a neutral, generally applicable law does not violate the Free Exercise Clause even if it burdens a religious practice, in a case about Native American Church members denied unemployment benefits after using peyote in a ceremony. The decision drew wide criticism. Congress responded in 1993 with a bill that cleared the House without a recorded vote and passed the Senate by 97 to 3, and President Clinton signed it. I explore the Smith decision and why it still splits conservatives in Employment Division v. Smith and the Scalia rule that still splits conservatives.

2. What does the federal RFRA actually say?

The core is one sentence. Government may not "substantially burden a person's exercise of religion even if the burden results from a rule of general applicability," unless it demonstrates that applying the burden to that person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest. Those last two requirements are the compelling-interest test, and the test is the whole engine. It restores the standard the Court had used before Smith, in cases such as Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972).

3. Why did states pass their own?

Because of City of Boerne v. Flores (1997). A Texas city had denied a Catholic church permission to enlarge its building under a historic-preservation rule, and the church invoked RFRA. The Supreme Court held that Congress had exceeded its power under Section 5 of the Fourteenth Amendment when it applied RFRA to the states and cities. Congress, the Court said, may enforce constitutional rights, but it may not redefine them. The federal RFRA survived only as a limit on the federal government, which the Court later applied, for example, in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal (2006) and Burwell v. Hobby Lobby Stores (2014).

After Boerne, supporters turned to the states. Beginning in the 1990s, state legislatures began to pass their own restoration acts, and in some other states courts reached a similar result by reading the state constitution's religious liberty clause to require strict scrutiny. Many states now have one or the other. The number and details change, so I will not give a count. Check your own state, which is Question 12.

What a state RFRA does

4. What does a state RFRA do?

In the ordinary case, three things. It creates a claim against a state or local government that substantially burdens your religious exercise. It sets a standard: the government must show a compelling interest and use the least restrictive means. And it gives you a remedy, usually a defense in a proceeding or a lawsuit for relief, often an injunction. It does not guarantee you will win. It guarantees that a court will ask the question and make the government justify the burden.

Think of what that meant in practice. A prison inmate who wants a beard for religious reasons, a small church that wants to build, a Sikh who wants to wear a turban in a job with a dress code, a family that homeschools for religious reasons: each can invoke the standard. Notice who benefits first, and most often. Religious minorities, whose practices the majority never thought about, are the usual claimants. That fact surprises people who learned the issue from headlines. For one example see the unanimous ruling in Holt v. Hobbs (2015) on a Muslim prisoner's half-inch beard, covered in A Muslim inmate's half-inch beard and the 9-0 ruling against Arkansas, decided under a sister federal statute, RLUIPA.

5. What is the compelling-interest test, and is it a rubber stamp for believers?

It is the opposite. It is a demanding test, and the government can and does win under it. "Compelling" means more than convenient or useful. "Least restrictive means" means that if the government can reach its goal with a smaller burden on religion, it must. The test is applied claim by claim, to the person asking, not in the abstract. A court may agree that a law serves an important interest in general and still hold that the government has not shown it needs to burden this claimant.

Courts do uphold laws against RFRA claims, because the test asks the government to justify the burden and a court may find that it has. The test is a balance, not a trump card. Anyone who tells you a RFRA lets a person break any law by invoking God has not read one.

6. Does a state RFRA let a business refuse to serve people?

This is the question at the center of the headlines, and the honest answer is: it depends on the state's text and on how its courts have read it, and the answer in many places is that a RFRA does not authorize turning away customers.

Three points. First, most state RFRAs are written, like the federal one, to restrain government action. They create a claim against the state. Many state courts have read them that way. In Elane Photography v. Willock (2013), the New Mexico Supreme Court held that New Mexico's RFRA did not apply in a suit between private parties, because the statute concerns government burdens. Other courts and legislatures have taken different positions, and some statutes say expressly that they apply in any proceeding, including one brought by a private party. Second, a RFRA does not repeal a state's public-accommodation or anti-discrimination law. It gives a person with a religious objection a way to ask a court to weigh the burden. Whether that person wins depends on the compelling-interest test applied to the facts. Third, the free-speech question, separate from RFRA, was addressed in 303 Creative LLC v. Elenis (2023), where the Court held that Colorado could not compel a web designer to create expressive messages that violated her beliefs. That case turned on the First Amendment's speech protections, not on a state RFRA. I explore the larger debate in 'Religious liberty is a license to discriminate,' answered with the law.

The Arizona and Indiana fights

7. What happened in Arizona in 2014?

In February 2014 the Arizona legislature passed Senate Bill 1062, which would have amended the state's existing RFRA, enacted in 1999. The amendments clarified that the statute's definitions of "person" and "exercise of religion" extended to businesses and applied in proceedings brought by private parties, not only by the government. Supporters said it simply clarified the law. Opponents said it would license discrimination. After a national outcry, including objections from some business leaders and some Republican officials, Governor Jan Brewer vetoed the bill on February 26, 2014.

Two facts matter. The veto left Arizona's original RFRA in place. And the episode showed the template for the next fight: the dispute was not about the compelling-interest test, which was already law, but about whether to extend it explicitly to private disputes.

8. What happened in Indiana in 2015?

In March 2015, Governor Mike Pence signed Senate Bill 101, Indiana's RFRA, on March 26. Indiana's bill was modeled on the federal statute, but it contained language, in its text on the claims and defenses available, that critics read as reaching suits in which no government was a party, and it defined "person" to include businesses and other organizations. A storm of criticism followed within days, from businesses and many others. On April 2, 2015, the legislature passed, and the governor signed, a revision that added a provision stating that the law does not authorize a provider to refuse services, facilities, goods or accommodations to any person on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity or United States military service status, with exceptions for churches and nonprofit religious organizations and for individuals engaged in their religious or affiliated educational functions. The revised text kept the RFRA in place with this limit.

Whatever you think of the politics, the sequence shows something instructive. Texts matter. A bill that closely mirrored a statute passed in 1993 by a 97-3 Senate vote became a national controversy because of a few clauses about private suits, and the clean fix was a clause, not a repeal.

How courts read these laws

9. How have state courts applied these laws?

Unevenly, and that is the right word. A few themes recur. State courts often look to federal RFRA cases for guidance, including Hobby Lobby and O Centro, because the statutes use similar language. They differ on whether a private suit triggers the statute, as the New Mexico case shows. They differ on what counts as a "substantial burden," and on whether the claimant's belief must be central to the religion or merely sincere. The usual rule, following federal precedent, is that courts ask whether the belief is sincerely held, and do not ask whether it is correct or central, a principle that goes back to United States v. Ballard (1944). Because the statutes were written in different years by different legislatures, and the courts of fifty states read them, any single sentence about "how state courts apply RFRA" is a simplification. The reliable approach is to read the decisions from your own state's highest court.

10. Is a state RFRA the same thing as a state constitutional protection?

No, though they often overlap. A state constitution may contain its own religious-liberty clause, and state courts may interpret it more broadly than the federal Free Exercise Clause. Some state supreme courts have held that their constitutions require the compelling-interest test regardless of Smith. A statutory RFRA, by contrast, is an ordinary law that a legislature can amend or repeal by a simple majority. That difference is the main reason some advocates prefer constitutional protection, and some prefer statutes, which are easier to pass and revise. Both approaches rest on the principle that liberty of conscience precedes the state, a point I develop in The conscience clause Madison wrote for the Bill of Rights and lost.

Limits, and how to read your own

11. What does a RFRA not do?

Here is a short list of things it generally does not do.

• It does not exempt anyone from every law. The government can still win under the compelling-interest test.
• It does not create a right against private parties, in most states, unless the text says so.
• It does not repeal anti-discrimination statutes.
• It does not protect beliefs that are not sincerely held, or conduct that harms others in ways the government can show it has a compelling interest in preventing.
• It does not decide whether a belief is true. Courts do not decide that, ever.
• It does not automatically apply to federal law. The federal RFRA is separate, and a state RFRA cannot override a federal statute.

12. How do I find my own state's law, and read it?

Here is the step-by-step. It takes about twenty minutes.

1. Go to your state legislature's website and find the state code or statutes.
2. Search for "religious freedom" and "restoration." Try "free exercise of religion" and "substantially burden." The statute is usually short.
3. Read the definitions. Look at how it defines "person," "exercise of religion," "government" and "substantially burden." The Arizona and Indiana fights were about definitions.
4. Read the claims and defenses section. Does it say it applies "in any judicial or administrative proceeding," or only against the government? Does it say anything about private parties?
5. Read the exceptions. Many statutes list areas where the law does not apply.
6. Look up your state's highest court decisions that cite the statute. Free legal databases and many court websites let you search by statute number.
7. If you do not have a state RFRA, check whether your constitution's religious liberty clause has been read to require a compelling-interest test.
8. Do not rely on a news summary. Read the actual text.

If you are in a dispute, talk to a lawyer who handles religious-liberty cases. I cannot tell you how a particular statute applies to you.

What the founders would recognize

The principle under every RFRA is older than the statutes. Madison's Memorial and Remonstrance in 1785 argued that religion is an obligation owed to the Creator, and that the duty is precedent, both in order of time and degree of obligation, to the claims of civil society. The Constitution then guaranteed in the First Amendment that Congress shall make no law prohibiting the free exercise of religion. You can read it on the Constitution page. A RFRA is a legislature's way of saying, in a modern setting, that a burden on conscience requires a justification. That is a conservative principle in the plainest sense. Whether a given text applies it wisely is a matter for the people who read it, and now you can be one of them.

The case in brief

1. A RFRA is a statute that makes the government justify, under the compelling-interest and least-restrictive-means test, any substantial burden on religious exercise, restoring the pre-Smith standard.
2. States passed their own after City of Boerne v. Flores (1997) confined the federal act to federal action.
3. The test is demanding but not a trump card, and government wins under it in many cases; religious minorities are among its most frequent beneficiaries.
4. The controversies in Arizona in 2014 and Indiana in 2015 turned on whether the statute reaches private disputes and businesses, and Indiana's revision of April 2, 2015 shows that texts, not slogans, decide the question.
5. What a RFRA does depends on your state's words and your state's courts, so read the statute itself.

What you can do: search your state legislature's website for your RFRA or equivalent and read it start to finish, then compare its definition of "person" with the federal act's.