POLITICS FEBRUARY 24, 1997
When President Clinton signed the Religious Freedom Restoration Act in November, 1993, the South Lawn basked in a bipartisan glow. Designed to overturn the Supreme Court's widely criticized decision in Employment Division v. Smith, which held, in 1990, that the state of Oregon could forbid Native Americans from using illegal peyote as part of their religious rituals, RFRA was supported by an improbably broad coalition of Democrats and Republicans, from Orrin Hatch and Edward Kennedy to the National Islamic Prison Foundation and B'nai B'rith. The president detected a "majestic quality" in the air at the signing ceremony; and Vice President Al Gore called the Act "one of the most important steps to reaffirm religious freedom in my lifetime."
There is, alas, one problem with this paragon of good intentions. It is almost certainly unconstitutional. On February 19, when the Supreme Court hears arguments in City of Boerne v. Flores, it will be urged to strike down RFRA on the grounds that Congress has no power to overturn the Supreme Court's interpretation of the First Amendment. But RFRA is constitutionally troubling for a more subtle, and more far-reaching, reason: by asserting a sweeping congressional power to displace state law in areas that have traditionally been left to the states, it threatens a radical redefinition of the relationship between the federal and state governments. In its grandiosity (it promises nothing less than the restoration of religious freedom) and in its disregard of constitutional limitations on Congress's power, RFRA is a classic of a genre. The genre is that of the big, bipartisan feel-good law--the Civil Rights Act of 1991 is another example--whose broad appeal derives from its promiscuity. The big, bipartisan feel-good law supports a cause no one is against; it includes all citizens in its smothering embrace; and its eagerness to be loved is the source of its constitutional infirmity.
The Smith case, you may recall, held that the First Amendment doesn't require states to create exemptions from generally applicable laws that have the "incidental effect" of prohibiting the free exercise of religion. The Religious Freedom Restoration Act purports to resurrect the much more rigorous test that the Supreme Court had applied in the years before Smith. It forbids the state and federal governments from "substantially burden[ing]" a person's exercise of his or her religion unless the government shows that the burden is the "least restrictive means of furthering [a] compelling governmental interest." In the three years since RFRA was passed, it has generated 189 suits by inmates seeking exemptions from prison regulations. Some of these deserve to be taken seriously--prisoners have sued for the right to wear crucifixes, for example--but many do not. In 1996, one prisoner claimed he should be allowed to use drugs because of his membership in the Church of Marijuana; another sought permission to use swords for "burnt offerings."
In the case the Supreme Court is about to hear, the Archbishop of San Antonio, who wants to tear down a local church, says that RFRA requires the city of Boerne, Texas, to exempt the church from its historic preservation laws. The city of Boerne counters that RFRA unconstitutionally violates the "separation of powers," because Congress has no power to reverse the Supreme Court's interpretation of the First Amendment by simply passing a statute. Brandishing Marbury v. Madison, the city warns darkly that Congress has made a bid to turn the courts into "the most irrelevant branch" by circumventing the constitutional amendment process.
Although superficially appealing, in a high-school civics kind of way, the "separation of powers" argument is specious. Congress hasn't, after all, told the Supreme Court how to interpret the First Amendment; it has created a statutory right to religious exemptions that goes beyond what the Court has said the First Amendment requires. It's true that Congress, in drafting RFRA, resurrected a judicial test that the Supreme Court had come to repudiate; but many of the most far-reaching pieces of civil rights legislation over the past thirty years have followed the same pattern. In 1980, for example, the Supreme Court held that changes in voting rules that have the effect of making it harder for minorities to elect representatives of their choice don't violate the Constitution; in 1982, Congress amended the Voting Rights Act to "restore" the legal standard that had prevailed before 1980. Similarly, in the Civil Rights Act of 1991, Congress outlawed employment practices that have "discriminatory effects," resurrecting a standard that the Court said the Constitution does not require.
A more serious constitutional objection is that RFRA offends principles of federalism. During House hearings in 1992, Ira Lupu of George Washington University warned that RFRA is "probably unconstitutional in its application to the states," because it exceeds Congress's enumerated powers. The Constitution gives Congress the power to "enforce" the rights guaranteed by the Fourteenth and First Amendments; and the Supreme Court has held that this includes the power to create remedies for clearly identified violations of constitutional rights. But it's hard to see RFRA as a remedial statute, since, in the wake of Smith, a failure to create religious exemptions doesn't violate the First Amendment. In an opinion upholding the constitutionality of RFRA, Judge Richard Posner noted that, even after Smith, the First Amendment forbids laws that appear to be neutral, but were covertly intended to discriminate against unpopular religious practices. Because discriminatory intent is often hard to prove, Posner suggested, Congress could reasonably have passed RFRA as a way of forcing the states to demonstrate that their apparently neutral laws--such as a ban on animal sacrifice, or a prohibition on wearing religious jewelry in prison--weren't actually motivated by hostility to particular religions.
Posner's indulgent view of RFRA is hard to accept. There's little evidence of a national epidemic of intentional discrimination against religious minorities--at least none that Congress considered. And the sweeping scope of RFRA--which carves out exemptions to every state and federal law that happens to place incidental burdens on religious worship--makes it hard to see RFRA as a remedy for intentional discrimination.
Unlike the voting rights amendments of 1982 and the civil rights amendments of 1991, which were limited to discrimination in voting rights and employment respectively, RFRA could potentially affect the implementation of every state law in the country, adopted at any level of state government. It's as if Congress were asserting a general federal police power, broad enough to preempt all the local functions that have traditionally been reserved to the states. If RFRA is constitutional, sixteen state governments ask in their Supreme Court brief, what would prevent Congress from nationalizing all state punishments, in the name of "enforcing" the Eighth Amendment guarantee against cruel and unusual punishment? And what would prevent Congress from federalizing all education, marriage and family laws in the name of "enforcing" the constitutional right to privacy? The question of whether the federal government continues to be limited to specifically enumerated powers has become one of the most hotly contested constitutional questions of our age; if the answer is yes, it's hard to see how RFRA can survive.
In addition to violating principles of federalism, RFRA may also violate the core historical meaning of the Establishment Clause of the First Amendment, which was originally designed to prevent Congress from disestablishing official state religions, such as Congregationalism in Massachusetts. In a forthcoming article--his irresistible title is "Antidisestablishmentarianism"--Jed Rubenfeld of Yale Law School argues that the First Amendment, which says that "Congress shall make no law respecting an establishment of religion," prohibits Congress from dictating a single rule governing church-state relations for the entire country. This is precisely what RFRA does. By simultaneously forcing states to favor minority religions and preventing states from favoring majority religions (banning peyote, for example, while allowing the ingestion of sacramental wine), Rubenfeld argues that RFRA is "massively and profoundly a law respecting state establishment of religion."
By the mid-nineteenth century, of course, there was growing sentiment that state governments, like Congress, should have no power to establish or support official churches. Now that the Fourteenth Amendment has been construed to require state governments to take their hands off religion, Rubenfeld argues, it would be perverse to allow Congress to put its hands on. This would mean that the part of the First Amendment that prohibits Congress from disestablishing religion has been, in effect, repealed.
The weakness of Rubenfeld's powerful argument is that it's hard to see many of the state laws that RFRA would potentially displace as religiously motivated in any way. The Catholic Church, for example, is now challenging San Francisco's new policy that all organizations with city contracts have to grant the same-sex partners of gay and lesbian employees the same benefits they offer to heterosexual partners. The Archbishop of San Francisco claims that the new domestic partnership law may violate the Religious Freedom Restoration Act. But it would be hard to argue that the domestic partnership law "establishes," or in any way reflects, the religious beliefs of a majority of the citizens of San Francisco.
Good laws, like good judicial opinions, are carefully designed to resolve clearly identified social problems. Their goals are modest, and their effects clearly foreseeable. They look very much like the American Indian Religious Freedom Act of 1994, a more narrowly focused response to the Smith decision, which immunized the ritual use of peyote from federal and state prosecutions. The Religious Freedom Restoration Act, by contrast, is an emblem for what can happen when Congress and the president, flush with good intentions, interject themselves into areas traditionally reserved to the states with a statute so inclusive and abstract that no one could possibly object to it. "The Religious Freedom Restoration Act is something that all Americans can support," the vice president enthused at the signing ceremony. Let's hope this doesn't discourage the Supreme Court from striking it down.