The Tennesse Religious Freedom Restoration Act

I am starting a new blog, perhaps a little better than the old. I'm going to recycle a couple of my old entries first and then get going with some new stuff. The most important issue in land use in Tennessee over the last year has been the Tennessee Religious Freedom Restoration Act.

The Tennessee General Assembly added a new provision protecting religious freedom this past session. The Tennessee Religious Freedom Restoration Act (TnRFRA), Tenn. Code Ann. § 4-1-407 is the state equivalent to the federal Religious Freedom Reformation Act (RFRA), 42 USC § 2000bb (2000). There is however, a key difference. Where the federal act does not define "substantially burden," the state act does. Both acts only apply to governmental actions which substantially burden religious freedom (and there is also a federal act that applies specifically to land use issues and institutionalized persons), but the federal act leaves the definition of the phrase to the federal courts. The state act provides its own, and it doesn't take much to bring it into play.The state act defines substantially burden to mean "to inhibit or curtail religiously motivated practice." As a result, it seems that any inhibition or curtailment of religious practices may be a violation of the Tennessee act. For example, supoose the city denies a permit to build a church because the plans don't comply with building safety requirements. Is the refusal to issue a permit an inhibition or curtailment? Almost certainly. The government must prove a compelling governmental interest and least restrictive means if its actions are found to be a substantial burden. It is almost impossible to surmount those tests as a practical matter which means if the court finds a substantial burden, the government will lose. Are the objectives of the many of the provisions of the building or fire code compelling interests of the government? Almost certainly. Are there other less intrusive methods of protecting building safety? Probably. The city might lose a case such as this based on the phraseology of the new act. Does that make much sense? Probably not.
In addition, there are two other key differences. First, whereas the federal act only requires the government to meet its burden of proof by a preponderance of the evidence (the customary standard in civil cases), the state act requires proof by clear and convincing evidence. The only appellate court decision to review this provision so far says "Tennessee’s religious freedom statute places a significantly heightened burden of proof on the governmental entity." See Johnson v Levy, (Tenn Ct Apps), Jan 18, 2010. And further, that same Court concluded that the "compelling governmental interest" test under Tennessee law is more stringent than the same test under federal law, because of a difference in phraseology in the state statute. As the Court says:

The distinction between “in furtherance” and “essential” is more than semantics; it reveals that the Tennessee General Assembly intended to provide greater protection of religious freedom than that afforded by the federal RFRA. Under Tennessee’s religious freedom statute, the governmental agency has to prove by clear and convincing evidence that the action it seeks to take is essential to furthering that compelling governmental interest. See Tenn. Code Ann. § 4-1-407(c)(1).

This is something of a concern because governments almost never win any case where they have to meet the federal "compelling interest" standard. If the state standard is higher, will any city or county be able to meet the burden?Since it appears very easy for the plaintiff (religious entity) to prove a substantial burden under the definition contained in the act, most cities and counties will need to be very careful in dealing with religious entities. In effect, it seems that the Tennessee act gives a type of super priority to religious land uses. In fact, many governments may simply concede and allow the use rather than run the risk of losing an expensive court battle, especially one which is strongly tilted in favor of the plaintiff to begin with.
Time will tell.