Bipartisan Backlash: When Biden Argued for Religious Freedom

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Religious Freedom: What’s All the Fuss About?

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by Ryan Snow
Joe Biden as a Senator (D – Delaware). Photo is Public Domain.

Within the past few years, protests have arisen nationwide over Religious Freedom Restoration Acts (“RFRA”) that have been enacted.  Large companies and celebrities are going so far as to boycott entire states. Recently, The Rolling Stones and other major media outlets have continued to voice opposition, claiming RFRAs “are intended to promote discrimination against the LGBT community in the public sphere.” But is this accurate?     

The origins of the federal RFRA—the archetype for these state laws—actually has nothing to do with LGBT issues.  In fact, the federal RFRA had wide bipartisan support.

In 1990, the U.S. Supreme Court decided the First Amendment did not require Oregon to pay unemployment benefits to a Native American who was fired for living his religious beliefs. (To learn more, read an earlier post in this series, The Hallucinogenic Origins of RFRA.) The government no longer needed a compelling reason to infringe on religious freedom and The First Amendment’s protection of the free exercise of religion lost tremendous vitality. The effects of the Smith decision would transcend far beyond unemployment benefits for a Native American man. Bipartisan backlash came rather quickly.

An unusually diverse coalition of constitutional scholars and religious groups urged the Supreme Court to grant a re-hearing of the case.  Public interest groups joined the effort, including the American Civil Liberties Union, People for the American Way and Rutherford Institute. The groups all agreed the opinion was “disastrous for the free exercise of religion.” But the Supreme Court declined to rehear the case. 

The Federal Religious Freedom Restoration Act (“RFRA”) was introduced a few months later in the U.S. House of Representatives.  In the Senate, Joe Biden argued the Smith decision was dangerous because it “could lead to unnecessary restrictions on religious freedom.”

Under this new rule, a State can enforce a general criminal law that restricts religious practices, without demonstrating a compelling State interest in enforcing that law.

Today I am introducing legislation to restore the previous rule of law, which required the Government to justify restrictions on religious freedom. …

Making a religious practice a crime is a substantial burden on religious freedom.  It forces a person to choose between abandoning religious principles or facing prosecution.  Before we permit such a burden on religious freedom to stand, the Court should engage in a case-by-case analysis of such restrictions to determine if the Government’s prohibition is justified. …

This bill is needed because even neutral, general laws can unnecessarily restrict religious freedom. [i]  

President Clinton signs RFRA into law on November 16, 1993. Photo is Public Domain.

Despite widespread support for RFRA, some groups voiced opposition.  The National Right to Life Committee, Inc. (“NRLC”) feared people would argue they had a religious right to abortion. [iii]  “It was principally the fight over an abortion exception that held up the bill for three years.” [iv]

Notwithstanding this opposition, RFRA passed in the U.S. House of Representatives on May 11, 1993 with such overwhelming support that only an oral vote was taken. [v] On October 27, 1993, RFRA passed the Senate by a vote of 97 – 3. [vi] President Bill Clinton signed RFRA into law on November 16, 1993.  He explained, our Founding Fathers “knew that religion helps to give our people a character without which a democracy cannot survive.  They knew that there needed to be a space of freedom between government and people of faith that otherwise government might usurp. [vii]


SUMMARY: Religious Freedom Restoration Act 

  • The U.S. Supreme Court eradicated judicial protection for the free exercise of religion in 1990 in Employment Division v. Smith, 494 U.S. 872 (1990).
  • Congress—with wide bipartisan support—responded with the Religious Freedom Restoration Act (“RFRA”).
  • Senator Joe Biden (D-Delaware) introduced RFRA in the Senate in 1990.
  • President Clinton Signed RFRA into law on November 16, 1993.


Ryan Snow is a graduate of Brigham Young University – Idaho and SMU Dedman School of
Law. He currently practices law in Texas and enjoys spending time with his family.

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[i] 103 Cong. Rec. 17330-31 (1990)
[ii]  See,_official_photo.jpg

[iii] Religious Freedom Restoration Act of 1991: Hearings on H.R. 2797 Before the Subcomm. On Civil and Constitutional Rights of the House Comm. on the Judiciary, 102d Cong., 2d Sess. 1, 273 – 274 (1992) available at

[iv] Brief of Amici Curiae Christian Legal Society et. al. Supporting Hobby Lobby and Conestoga Wood et. al at 8, Burwell v. Hobby Lobby, 134 S.Ct. 2751 (2014) (Nos. 13-354, 13-356). 

[v] H.R. 1308 (1993) available at 

[vi] 103 Cong. Rec. S. 14471 (daily ed. Oct. 27, 1993). 

[vii] Remarks on Signing the Religious Freedom Restoration Act of 1993, 1993 Daily Comp. Pres. Doc. 2 (Nov. 16, 1993) (emphasis added).

The information contained in this post is for informational purposes only and should not be taken as legal advice for any individual case or situation. This information is not intended to create, and the receipt or viewing does not constitute an attorney-client relationship