The Way Ahead: Religious Freedom Laws

In the wake of the Supreme Court’s ruling in Smith, Congress tried to increase religious protections by passing the Religious Freedom Restoration Act of 1993 (RFRA), which would have forced both federal and state courts to apply a stricter measuring rod to laws that impact religion. But the Supreme Court later struck down parts of RFRA, limiting the law’s reach solely to the actions of the Federal Government.6 In other words, your state and local governments are free to pass neutral laws—regardless of their religious impact—with only minimal court scrutiny.

With the federal RFRA severely limited, homeschool advocates are pushing for state-level RFRAs as a way to secure extra protection for religious families. But these local laws only apply within your state’s own borders. Thus, to replace the federal RFRA, all fifty states must individually pass their own versions of the law.

The push for local RFRAs has netted about a dozen victories, even in large states such as Pennsylvania, Texas, and Florida. A handful of other states, such as Kansas, Ohio, and Vermont, provide stricter scrutiny based on local court decisions. But the battle still rages. For instance, in 2010 Louisiana successfully passed RFRA legislation, but Colorado failed to add the law to its constitution.

Homeschool legal advocates are urging families to check the law in their own states and to work for passage of additional local RFRAs, either through legislation or amendment to state constitutions. In 2012, several states will be voting on this issue, such as West Virginia, New Hampshire, and North Dakota. If you are a religious homeschooler in one of those states, you will want to make your voice heard. And if your state still lacks an RFRA, you will want to contact your local legislators and statewide homeschool groups to start the process to get one. These laws may not guarantee your religious freedom in every case, but they will give you a fighting chance in the courts.


1. See Employment Division v. Smith, 494 U.S. 872 (1990) (upholding an Oregon statute criminalizing the use of peyote—a Schedule I controlled substance—even when used sacramentally by Native Americans as part of a religious ceremony).

2. Smith, 494 U.S. at 881–82.

3. Combs v. Homer-Center School District, 540 F.3d 231 (3rd Cir. 2008).

4. See Jonathan L. v. Super. Ct. of Los Angeles County, 81 Cal. Rptr. 3d 571 (Cal. Ct. App. 2008).

5. In January 2012, the United States Supreme Court unanimously ruled that the First Amendment prevented the government from interfering with a church’s “free exercise” right to fire one of its ministers. See Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 565 U.S. ___ (2012).  This ruling did not change the state of the law regarding the “rational basis” test, however.

6. See City of Boerne v. Flores, 521 U.S. 507 [ ] (1997).

Antony B. Kolenc (J.D., University of Florida College of Law) is an attorney, author, and speaker. He and his wife have homeschooled their five children for over a decade. He is author of The Chronicles of Xan historical fiction trilogy, as well as several legal articles. Learn more about him at

If you have a legal-related question, please email  and Tony may get a chance to answer it in his monthly column!  

Copyright 2012, used with permission. All rights reserved by author. Originally appeared in the April 2012 issue of The Old Schoolhouse® Magazine, the family education magazine. Read the magazine free at or read it on the go and download the free apps at to read the magazine on your mobile devices.

Publication date: March 29, 2013