Turf WarsJ. Brent Walker November/December 1997 It was the most important and popular piece of religious liberty legislation since the First Amendment was ratified more than 200 years ago.
It was suggested by the broadest coalition of religious groups ever assembled in the United States: Jews and Muslims, Buddhists and Baptists, Christian Scientists and Scientologists, Latter-day Saints and Seventh-day Adventists, and nearly every stripe of mainline and evangelical denomination.
It was sponsored by unlikely allies: Senators Orrin Hatch (R-Utah), Ted Kennedy (D-Mass.), Representatives Charles Schumer (D-N.Y.) and Christopher Cox (R-Calif.)-along with 532 members of Congress. Only three voted no, probably because the act applied to prisoners.
It was signed by a Baptist president and touted as one of the Clinton administration's most important first term accomplishments.
It was applauded by most of the academic community, hailed by the left and the right, and welcomed by all religious minorities who had felt the brunt of persecution and intolerance.
Only a handful of people thought this landmark legislation-the Religious Freedom Restoration Act of 1993 (RFRA)-was poor policy and/or unconstitutional. That is the good news. The bad news is that six of them sit on the United States Supreme Court.
The First Amendment forbids government from prohibiting the free exercise of religion. As a practical matter, however, government must restrict religion under certain circumstances, an act that should be the exception, not the rule. Accordingly, the Supreme Court for many years required government to show a compelling interest (i.e., health and safety) before it would be allowed to burden the exercise of religion, and then only if it had selected the least restrictive means of advancing that interest. Stringent, if not absolute, protection for the "first freedom" was the order of the day.
In 1990 this changed. In Employment Division v. Smith (494 U.S. 872 ), the Court deprived the Free Exercise Clause of any meaningful protections. Writing that robust protection for religious freedom is a "luxury" we can no longer afford, a five-justice majority did away with the compelling interest test in most cases. If religion is singled out for discriminatory treatment, then strict judicial scrutiny would still apply. But where protection is needed most-to ensure that neutral laws do not indirectly burden the practice of religion-there would be no bar to governmental interference with religion. The Court concluded that it was the province of the legislative branch, not the judiciary, to extend to religious practice an exception from neutral, generally applicable laws.
The outcry was swift and widespread. Fifty-four law professors and a score of religious groups petitioned the Court to reconsider its decision. Denied! The 68-member Coalition for the Free Exercise of Religion quickly formed to urge the Congress to take the Court up on its offer-to exempt religious practice from burdensome governmental interference. This is precisely what Congress sought to do in passing RFRA: create statutory protection for religious freedom in the wake of the Court's refusal to recognize any meaningful constitutional rights. Rather than legislating piecemeal, Congress chose to protect everyone's religious freedom in one fell swoop and once again require government-federal, state, and local-to have a compelling state interest before substantially burdening religious practice.
Thus, RFRA was a "mile wide and an inch deep," as legal scholar Doug Laycock has said. It applied across the board to all persons of faith; but instead of creating outright exemptions, it only tilted the playing field in religion's direction by again requiring government to have a really good reason before fiddling with our first freedom.
The salutary effect of RFRA was dramatic. During the three and a half years between Smith and the passage of RFRA, persons of faith rarely prevailed in a free exercise claim against government. Only a few cases were won under the more protective provisions in state constitutions.1 But during the three and a half years following RFRA's passage, the tables turned and the free exercise claimant prevailed much more often.
For example, when the city government in Washington, D.C., tried to use its zoning laws to prevent a Presbyterian church from feeding the homeless, the court ruled for the church.2 A California court barred the state from trying to force a Jehovah's Witness employee to take a loyalty oath, and thereby protected the right of conscience.3 When a bankruptcy court ordered a church to turn over a tithe given by the debtor years before in good faith, the court stopped the state-sponsored raid on the collection plate.4 The court ruled in each of these cases that under RFRA the government had failed to prove an interest sufficiently compelling to trump the free exercise of religion.
In these and numerous other cases, RFRA's constitutionality was challenged. The arguments usually asserted were that in passing RFRA, Congress breached the separation of powers doctrine, interfered with states' rights, and violated the First Amendment's prohibition on establishing religion.
Arguments marshalled and presented in RFRA's defense included the following:
1. Congress was not attempting to overrule a Supreme Court decision or tell the Court how to interpret the Constitution; it was simply protecting a fundamental right by statute after the Court declined to recognize such a right under the Constitution.
2. Congress was not seeking to trample on the sovereign rights of the states; it was only trying to require the states under the Fourteenth Amendment to the Constitution to honor the rights enjoyed by its people as American citizens.
3. Congress did not improperly advance religion in passing RFRA; it was only accommodating religion by shielding it from unwarranted governmental interference.
In response to these arguments, every appellate court-including four federal courts of appeal-upheld RFRA's constitutionality.5 This included the New Orleans-based Fifth Circuit Court of Appeals' decision in Flores v. City of Boerne. Because of the importance of this issue, the U.S. Supreme Court agreed to review Flores.
In an opinion written by Justice Kennedy, the Court declared RFRA unconstitutional.6 A majority of six justices ruled that Congress violated principles of federalism by requiring the states to comply with RFRA. The Court reasoned that Section 5 of the Fourteenth Amendment did not give Congress substantive powers to say what the Constitution means. And though Congress has remedial power under that section to "enforce" other constitutional rights, RFRA transgressed that limited role. The Court wrote: "While the line between measures that remedy or prevents unconstitutional actions and measures that make a substantive change in governing law is not easy to discern, and Congress must have wide latitude in determining where it lies, the distinction exists and must be observed."7
Stressing that there must be "a congruence and proportionality between the injury to be prevented or remedied and the means adapted to that end," the Court concluded that RFRA lacked that connection and therefore was unconstitutional. Specifically, the Court faulted Congress for failing to amass a sufficient record of religious discrimination (as opposed to indirect burdens) to justify its sweeping legislative response.
One can critique the Court's opinion on a variety of scores.
1. Although Congress cannot tell the Court how to interpret the Constitution, it should have the right to protect, by legislation, the basic liberties of U.S. citizens and to make sure the states do not encroach on these liberties.
2. Even if Congress has no authority to define substantive constitutional rights, RFRA should survive scrutiny as "remedial" to the extent it seeks to enforce the Smith case's prohibition on discrimination against religion.
3. The Court's insistence on "proportionality and congruence" between the ends and means is a novel principle of law and smacks of judicial activism.
4. The Court's statement that RFRA's "least restrictive means" requirement was not used in pre-Smith jurisprudence is simply wrong.
5. The Court's observation that RFRA's legislative record is devoid of examples of "religious bigotry . . . [or] persecution . . . in the past 40 years" ignores the fact that religious discrimination often lurks behind facially neutral laws.
6. The Court's opinion is ambiguous about whether RFRA continues to apply to the federal government, and it gives Congress almost no guidance about the scope of its Fourteenth Amendment powers.
What to Do About What Happened
Though the criticism of the Flores opinion could continue, the academic faultfinding must give way to practical solutions. The Court clearly has the right to interpret the Constitution and strike down laws that it judges to be unconstitutional.8 But religious freedom is too sacred a right to be left on the floor of the Supreme Court chambers. As Senator Edward Kennedy has said: "This decision cannot be the final word."
Here are some suggestions on how we can protect religious freedom while respecting (although disagreeing with) the Court's decision. Indeed, the Coalition for the Free Exercise of Religion has decided to urge these steps to that end.
First, Congress should adopt immediately a joint resolution stating its conviction that religious liberty is not a "luxury," but a fundamental right, and resolving to find ways to protect religious liberty beyond that afforded in Smith. The Flores decision can be read to say that RFRA still applies to the federal government even though it has been struck down vis-