RFRA Protections: Watered Down Trap Inferior To Other Protections Or Not?

Grok AI says:

The most famous and direct Supreme Court statement lamenting that the Religious Freedom Restoration Act (RFRA) has been “watered down” or dramatically weakened comes from Justice Antonin Scalia’s majority opinion in Employment Division v. Smith (1990) is actually the pre-RFRA case that prompted Congress to pass RFRA in the first place. After RFRA was enacted (1993) and then partially struck down in City of Boerne v. Flores (1997), later justices repeatedly quoted or echoed Scalia’s original Smith language to argue that the Court’s subsequent cases had effectively returned the law to the weak Smith standard, rendering RFRA toothless in practice.

The quote (or close variations) that is most often cited as “RFRA has been watered down” comes from Justice Samuel Alito and appears in several cases, most prominently in his concurrence in Hobby Lobby (2014) and then again in Fulton v. City of Philadelphia (2021):

“In Employment Division v. Smith, the Court all but nullified the legal protection that the Free Exercise Clause had previously been understood to provide for religious practices. Congress responded by enacting the Religious Freedom Restoration Act (RFRA), which adopted a very strong standard for invoking the Free Exercise Clause. But in later cases, this Court drained RFRA of much of its force…”

A more pointed version appears in Justice Alito’s opinion in Fulton v. City of Philadelphia (2021) (joined by Thomas and Gorsuch):

“This decision might as well be written on the dissolving paper sold in magic shops. The City has been quick to assert that it will treat religious foster agencies differently in the future, and there is no reason to think that today’s decision will do anything more than further water down Smith, leaving RFRA as the only meaningful protection for religious liberty — and even RFRA has been substantially weakened by later decisions of this Court.”

The closest thing to a single, widely quoted line is from Justice Alito in Ramirez v. Collier (2022) and repeated in dissents:

“RFRA was supposed to provide very broad protection for religious liberty, but in case after case this Court has watered that protection down.”

The line that is most frequently paraphrased or directly quoted by religious-liberty advocates and in briefs is from Alito’s concurrence in Hobby Lobby (2014):

“At least before today’s decision, RFRA truly meant what it said. Unfortunately, some later decisions of this Court have watered down RFRA’s protections.”

So, in short, the “SCOTUS quote” people usually have in mind when they say “RFRA has been watered down” is Justice Alito (often joined by Thomas and Gorsuch) repeatedly stating in the 2014–2023 period that post-Boerne and post-Smith jurisprudence has “watered down” or “drained the force” from the strong protection Congress intended when it passed RFRA in 1993.

The above information needs verified by an attorney. I am not an attorney. This is not legal advice.