Are congregations constrained by government? Empirical results from the National Congregations Study.(Statistical Data Included)

The Religious Freedom Restoration Act (RFRA) became law in 1993. It prohibited government from "substantially burdening" a person's exercise of religion even if the burden results from a rule of general applicability unless the government can demonstrate that the burden furthers "a compelling governmental interest" and "is the least restrictive means of furthering that ... interest."(1) Its purpose was to expand religious freedom beyond the bounds articulated in the 1990 Employment Division of Oregon v. Smith decision.(2) The RFRA generated hundreds of lawsuits until it was declared unconstitutional by the Supreme Court in City of Boerne v. Flores (1997).(3) Efforts to revive the RFRA, or legislation similar to it, are ongoing. Congress held hearings on the Religious Liberty Protection Act of 1998, and the current Congress is considering the 1999 Religious Liberty Protection Act (RLPA), bills supported by many of the same religious and civil liberties groups that backed the RFRA. Moreover, legislatures in at least six states--Alabama, Connecticut, Florida, Illinois, Rhode Island, and Texas--have enacted their own state versions in response to the Boerne decision.

Debate about the RFRA proceeded along several fronts. One important subject of debate concerned the RFRA's proportionality relative to the dangers it is intended to remedy. Proponents of the RFRA argued that religious freedom is sufficiently threatened that a mechanism as powerful as the RFRA is necessary to protect it. This argument is present in congressional testimony and debate concerning the RFRA. Rep. Maloney from New York, for instance, stated that "the fundamental right of all Americans to the free exercise of religion is in serious jeopardy.... [T]he Supreme Court's ruling in Employment Division versus Smith has already begun to chip away at the first freedom protected by the Bill of Rights, the freedom of religion."(4) Rep. Hoyer from Maryland, meanwhile, cited the remark of a Minnesota judge that "churches have no more constitutional rights than adult movie theaters."(5) Expressing concern for followers of less popular religions, New Jersey's Rep. Franks asserted that the implications of the Smith decision "are especially burdensome for those whose beliefs lie within the religious minority."(6)

This argument also is present in scholarly writing. For instance, Robert Drinan wrote that "denials of building permits to churches are not uncommon in America." Later in the same piece, Drinan asked, "What will happen to religious individuals and persons if the RFRA is not reinstated in some form? The problem is that no one will ever know. At the local level, zoning commissions will quietly deny access to Jewish temples, controversial denominations, or Catholic schools."(7)

In striking down the RFRA, however, the Supreme Court ruled that the Act was out of proportion to the threat posed to religious freedom. Writing for the majority, Justice Anthony Kennedy asserted that "while preventive rules are sometimes appropriate remedial measures, there must be a congruence between the means used and the ends to be achieved. The appropriateness of remedial measures must be considered in light of the evil presented."(8) Justice Kennedy continued by declaring that "RFRA is so out of proportion to a supposed remedial or preventive object that the RFRA cannot be understood as responsive to, or designed to prevent, unconstitutional behavior and, instead, the RFRA appears to attempt a substantive change in constitutional protections."(9)

According to Justice Kennedy, the heavy additional burden placed by the RFRA on states--indicated by the hundreds of lawsuits filed under the RFRA--was out of proportion to the protection that it provided. In his words, "the substantial costs which the RFRA exacts through its stringent compelling-interest test--both in practical terms of imposing a heavy litigation burden on the states and in terms of curtailing their traditional general regulatory power--far exceed any pattern or practice of unconstitutional conduct under the free exercise clause as interpreted in Employment Division v. Smith."(10)

Arguments about proportionality have been recapitulated in debate over the RLPA, with proponents claiming that religious activity is unduly constrained while opponents claim the contrary.(11) We focus on this particular aspect of the debate because it revolves around an empirical question: what is the current state of religious freedom in the United States? Is religious activity sufficiently constrained to warrant a mechanism as powerful as the RFRA/RLPA? Or is religious activity sufficiently unconstrained that a RFRA/RLPA is unnecessary? Given ongoing efforts to expand protections for religious activity, and the continuing debate surrounding such efforts, it remains important to assess empirically whether or not religious activity in the United States is constrained in ways that justify additional protective action.

This essay investigates the current state of religious freedom with respect to one type of religious organization: religious congregations. It uses data from the 1998 National Congregations Study, a representative sample of 1,236 religious congregations from across the religious spectrum, to assess the extent to which religious congregations are constrained in their activities by permitting and licensing procedures enforced by government agencies. Religious congregations are, of course, only one type of religious organization, and important religious activity takes place in other settings as well as outside the boundaries of any formal organization. Still, congregations are the core religious organizations in the United States, and they are the site of the vast majority of organized religious activity. Hence, assessing the extent to which congregations' activity is constrained by the need to comply with permitting and licensing requirements is an important part of assessing the need for additional legal protection of religious activity.