T. Greg Doucette: RFRA not game-changer

Regarding the April 26 Under the Dome article “Helms was wary of ’93 religious rights act”: Sen. Jesse Helms was wrong. There was no flurry of RFRA litigation “employ(ing) the nation’s lawyers.” And the U.S. District Courts long ago fashioned criteria for determining whether claimed religious beliefs were legitimate or, as Helms feared, “disobedience” by the incarcerated.

The reality is as simple as it is boring: The RFRA does little more than reinstate the Sherbet Test, which itself did little more than codify what had been settled law for generations. Under Sherbet v. Varner, the Supreme Court made clear that government regulations burdening religion were to be subject to the same “strict scrutiny” analysis as its companion First Amendment freedoms.

If a law burdening religion was not serving a compelling governmental interest and was not narrowly tailored to achieve that interest, that law was unconstitutional. Sherbet remained settled law until the 1980s, when those who claimed to love liberty (like Helms) instead sacrificed it for the “War on Drugs.”

While some have well-meaning concerns about what a North Carolina RFRA would portend, it simply does not enable what its detractors fear; instead, it protects everyone from overreach of unrestrained government. Nothing in the Sherbert Test was particularly controversial then. Reinstating it via a state RFRA should not be controversial now.

This story was originally published April 28, 2015 at 5:57 PM with the headline "T. Greg Doucette: RFRA not game-changer."