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U.S. DEPARTMENT OF LABOR
Employment and Training Administration
Washington, D. C. 20210

CLASSIFICATION

UIPL

CORRESPONDENCE SYMBOL

TEURL

ISSUE DATE

June 13, 1994

RESCISSIONS

None

EXPIRATION DATE

DIRECTIVE

:

UNEMPLOYMENT INSURANCE PROGRAM LETTER NO. 28-94

 

TO

:

ALL STATE EMPLOYMENT SECURITY AGENCIES

 

FROM

:

MARY ANN WYRSCH
Director
Unemployment Insurance Service

 

SUBJECT

:

Religious Freedom Restoration Act of 1993

  1. Purpose. To advise State Employment Security Agencies (SESAs) of the enactment of the Religious Freedom Restoration Act of 1993.

  2. References. Religious Freedom Restoration Act of 1993, Public Law (P.L.) 103-141; Unemployment Insurance Program Letters (UIPLs) No. 27-81, 26-87, 43-89 and 42-90.

  3. Background. On November 16, 1993, the President signed into law the Religious Freedom Restoration Act of 1993 (P.L. 103-141). This issuance advises the States how this law affects the Federal-State Unemployment Compensation (UC) program.

    The Free Exercise Clause of the First Amendment of the Constitution, made applicable to the States by the Due Process Clause of the Fourteenth Amendment, states in relevant part that "Congress shall make no law . . . prohibiting the free exercise [of religion]." P.L. 103-141 creates a statutory requirement that the "compelling governmental interest" test be applied in cases in which the free exercise of religion has been burdened by a facially neutral law of general applicability. A law will pass this test when it is the least restrictive means of achieving a compelling governmental interest.

    For many years and with very few exceptions, the U.S. Supreme Court ("Court") employed the "compelling governmental interest" test in evaluating the constitutionality of a government statute or regulation. Before the 1990 decision in Employment Division v. Smith, 494 U.S. 872 (1990), the "compelling governmental interest" test was used in deciding whether some "compelling state interest" would justify the substantial infringement on an individual's constitutional right to the free exercise of one's religious faith.

    In the first case involving UC, Sherbert v. Verner, 374 U.S. 398 (1963), the Court stated the principle that a neutral law that burdens the free exercise of religion may be upheld if the government can demonstrate that such law is justified by a "compelling State interest" and is the least restrictive means of achieving that interest. In the Sherbert case, the State agency denied UC to a Seventh-Day Adventist Church member who had refused to work on Saturdays, the Sabbath Day of her faith. The Court held that the denial imposed an unconstitutional burden on the free exercise of religion and that there is no compelling State interest enforced in the eligibility provisions of the State law which justifies the substantial infringement of religious liberties. In considering whether some compelling State interest justifies a substantial infringement of a Constitutional right, the Court stated that the mere showing of a "rational relationship to some colorable state interest" would not suffice. In order to justify the substantial infringement upon an individual's First Amendment rights, there must be a strong State interest and a demonstration by the State that no alternative forms of regulation would achieve the desired objective. Such a showing was missing in the Sherbert case.

    A number of other cases followed Sherbert. In a case not involving UC, Wisconsin v. Yoder, 406 U.S. 205 (1972), the Court held that the free exercise interests of the Old Order Amish outweighed the interests behind the State compulsory education statute. Similarly, in another UC case, the Court held in Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707 (1981), that denial of UC to a Jehovah's Witness, who became unemployed because his interpretation of the Bible precluded him from working on an armaments production line, unconstitutionally infringed upon the claimant's free exercise of religion. In another UC case with facts similar to those in the Sherbert case, Hobbie v. Unemployment Appeals Commission of Florida, 480 U.S. 136 (1987), the Florida agency denied UC to a Seventh-Day Adventist Church member who had refused to work on Saturdays, the Sabbath Day of her faith. The Court stated that any infringement on religious belief must be subjected to strict scrutiny and could only be justified by proof of a compelling State interest. Under the circumstances of that case, where the State denied UC because of conduct mandated by a religious belief, the Court held that such denial violated the Free Exercise Clause of the First Amendment. In Frazee v. Illinois Department of Employment Security, 489 U.S. 829 (1989), the claimant had refused a job offer which involved Sunday work due to the belief that, as a Christian, he was precluded from working on Sundays. The Court ruled that denial of UC due to the job refusal violated the claimant's right to free exercise of religion, even though the claimant was not a member of an established religious sect or church. In all the cases involving UC, the Court found that denial of UC violated the Free Exercise Clause of the First Amendment since no compelling State interest had been shown.

    Departing from those previous decisions, the Court's holding in Smith reinterpreted the longstanding precedent regarding the application of the "compelling governmental interest" test. At issue in Smith was the denial of UC to members of the Native American Church, whose dismissal resulted from the ceremonial use of peyote in violation of Oregon's substance abuse laws. Because the Church members' use of peyote during the religious ceremony was prohibited under Oregon law, and because that prohibition is constitutional, the Court held that the State may deny UC when job dismissal results from use of illegal drugs. See UIPL No. 42-90. The Court did not reach the compelling interest test, holding instead that the test did not apply to a challenge to a valid and neutral law of general applicability even if it incidentally burdens a particular religious practice.

    The Court determined that the Free Exercise Clause of the First Amendment does not absolve any person from the duty to adhere to a law which incidentally forbids or requires the performance of an act that a person's religion requires or forbids, if that law is not specifically directed to religious practice. As explained in UIPL No. 42-90, the Court found that the State of Oregon could deny UC to persons dismissed from their jobs because of the religiously inspired use of peyote, due to the States' general criminal prohibition on use of that drug. By so deciding, the Court thus weakened the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion, and severely limited the situations in which the "compelling governmental interest" test may serve as a workable means test for striking sensible balances between religious liberty and competing prior governmental interests. To reach its decision in the Smith case, the Court appeared to have abandoned years of precedent in which the "compelling governmental interest" test was applied in a variety of circumstances.

  4. Religious Freedom Restoration Act of 1993. The Religious Freedom Restoration Act of 1993 reestablishes the "compelling governmental interest" test as the legal standard. Thus, the purpose of this legislation is to reaffirm that the government may not burden a person's free exercise of religion, even if the burden results from a rule of general applicability, unless the burden is essential to further a "compelling governmental interest" and is the least restrictive means of furthering that interest. Pursuant to Section 3 of P.L. 103-141, a person may assert a free exercise violation as a claim or defense in a judicial proceeding. To bring a claim or to assert a defense under Section 3, a person or organization must meet the requirements for "standing" under Article III of the Constitution. Generally, to obtain standing, a private citizen may only complain of alleged unlawful conduct on the part of a government officer if there is a live and concrete controversy, that is, a showing that such conduct invades or will invade a private substantive legally protected interest of that citizen, in this case, a burdening of the free exercise of religion.

    Under Section 4 of P.L. 103-141, the courts may, at their discretion, allow the prevailing party, other than the United States, a reasonable attorney's fee as part of costs. Furthermore, Section 4 provides for costs and fees during an administrative adjudication.

    Section 6 provides that nothing in P.L. 103-141 authorizes any government to burden any religious belief. P.L. 103-141 applies to all Federal and State laws, including the implementation of these laws, whether or not they were adopted before or after the enactment of the Act. However, Federal laws adopted after enactment may not be subject to the Act if the law, by reference to the Act, explicitly excludes application. Finally, Section 7 provides that the P.L. 103-141 does not in any way affect the Establishment Clause of the First Amendment, which prohibits the enactment of laws that advance or endorse religion.

    Since no effective date for implementation of this law was specified, the law was effective as of the date signed by the President, November 16, 1993.

  5. Effect on the UC Program. In practical terms, under P.L. 103-141, the precedent set by Sherbert and the other cases preceding Smith are once again applicable. The new law does not explicitly require payment of UC in the situation described in Smith. Concerning the situation described in Smith, it would appear that States may deny UC to claimants discharged from their jobs for actions illegal under State law, even though the actions are for religious purposes, without violating the First Amendment to the U.S. Constitution, provided that the State can demonstrate that it has a "compelling governmental interest" in outlawing such actions and has taken the least restrictive means of achieving some compelling State interest. See concurring opinion of O'Connor, J., in Smith.

  6. Action Required. SESAs are requested to take the necessary action to assure consistency with the statutory requirements of P.L. 103-141.

  7. Inquiries. Inquiries should be directed to your Regional Office.

  8. Attachment. P.L. 103-141.