Does RFRA unconstitutionally elevate religion over irreligion?

And if so, could/should it be fixed by extending its accommodation requirement to deeply held secular convictions? [Sasha Volokh] Earlier on the Religious Freedom Restoration Act of 1993 here.


  • Isn’t the real issue whether the government can require employers to provide things to employees beyond that which is mutually agreed upon?

  • The government hasn’t been very active at restricting the rights of unbelievers as unbelievers. They haven’t been demanding they support religious causes or express opinions they object to. However, there are convictions which are independent of religion.
    It may shock some people to learn, but not every atheist supports abortion or abortifacients. It is easy to imagine a business run by atheists making the same objections as Hobby Lobby on moral rather than religious grounds.
    In the same vein, not every baker who is an unbeliever wants to support a same-sex union ceremony.
    The bigger problem is that the government keeps encroaching further and further on the everyday activities of its citizens, so it is inevitable that they will end up trampling on people’s consciences – more so because the government itself has lost its moral compass.

  • I don’t see how extending RFRA to cover deeply-held secular convictions helps. If RFRA was a “law respecting an establishment of religion” before that change, it would still be one afterwards. Respecting other establishments doesn’t stop the law from respecting an establishment of religion.

    And this is not sophistry. If person X gets benefit Y because of religious conviction Z, and that benefit would not be available to person A, comparable to person X but for the lack of the religious conviction, then the law that grants that benefit is unconstitutional because it respects the religious belief of person X.

    That it would also respect comparable non-religious beliefs doesn’t matter. It’s people we need to treat fairly, not beliefs. The comparable non-religious person is a person who lacks that religion, not who lacks that religion and also has some other property that might get them the same benefit.