View as PDF with footnotes

I. Introduction

The Supreme Court’s opinion in Boerne v. Flores 1 declared unequivocally that the Religious Freedom Restoration Act (“RFRA” or “the Act”) is unconstitutional. Despite the Court’s straightforward opinion, there are commentators and advocates who now assert that RFRA is constitutional as applied to federal law. 2 This Article responds that the message of Boerne is that RFRA is unconstitutional under any scenario, whether it is applied to state or federal law. 3

[2]  The insurmountable fact of RFRA’s enactment is that Congress, at the behest of a powerful group of organized religions, intended to displace the entirety of the Supreme Court’s interpretation of the Free Exercise Clause. This is one instance where a statute’s obvious faults are its most serious faults. RFRA is a straightforward violation of separation of powers and the Establishment Clause; it hits bedrock principles in both constitutional milieus. At a more subtle level, RFRA is also a violation of the due process required in lawmaking. Any one of these three theories is sufficient to invalidate RFRA as applied to federal law.

Before moving to the discussion, it is important to note that Congress does have a modicum of authority to accommodate religion. Through appropriate exercise of an enumerated power, Congress can provide exemptions for religious conduct. 4 Congress’ hand, however, is not free. Federal laws effecting exemptions are subject to constitutional limitations – namely, the enumerated powers doctrine and the Establishment Clause. The Religious Freedom Restoration Act would have empowered Congress to act without restraint.

II. Boerne v. Flores Holds that RFRA Violates Settled Principles of Separation of Powers

In Boerne, the Supreme Court stated that RFRA “contradicts vital principles necessary to maintain separation of powers and the federal balance.” 5 RFRA is ultra vires legislation which would have provided Congress the power to amend the Constitution unilaterally. In the Court’s words, RFRA “appears… to attempt a substantive change in constitutional protections.” 6 Congress’ attempt to revise the constitutional balance is made transparent by RFRA’s awesome scope, as well as the paucity of the legislative record. This Act, like no other law enacted before, mimics the scope of the Constitution. In the words of Justice Kennedy, RFRA’s

sweeping coverage ensures its intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter. RFRA’s restrictions apply to every agency and official of the Federal, State, and local Governments. 42 U.S.C. 2000bb-2(1). RFRA applies to all federal and state law, statutory or otherwise, whether adopted before or after its enactment. 2000bb-  [3]  (a). RFRA has no termination date or termination mechanism. Any law is subject to challenge at any time by any individual who allegesa substantial burden on his or her free exercise of religion. 7

With this sweeping Act, Congress attempted to usurp both the courts’ role and Article V’s amendment procedure.

A. Through RFRA, Congress Has Expropriated the Supreme Court’s Constitutional Duty to Interpret the First Amendment

The Court’s decision in Boerne reaffirms that the Supreme Court is “supreme in the exposition of the law of the Constitution.” 8 While it does not have the power to set the agenda when constitutional amendments are considered, a power which Congress holds, the Supreme Court does have the power to issue the final word on the meaning of the existing Constitution. In all of its applications, RFRA subverts this principle. RFRA is a blatant attempt by Congress to rewrite the meaning of the Free Exercise Clause in contravention of the Supreme Court’s interpretation. 9 As such, it is an attempt by Congress to engage in a hostile takeover of the Court’s constitutional role. In the words of one appellate court judge, RFRA’s legislative history reveals Congress playing the role of

a super-Supreme Court… In essence, Congress has instructed the Supreme Court how to interpret the Free Exercise Clause of the First Amendment… It hardly needs to be said that where Congress and the Supreme Court are so clearly at odds with each other over the definition of afundamental right, the conflict presents an obvious and serious threat to the delicate balance of separation of power. 10

When the Act is applied to federal law, RFRA’s creators and proponents defend RFRA against separation of powers attacks on the ground that it is a simple matter of Congress “amending its laws to restrain itself.” 11 RFRA, however, does not amend the text of any federal law. Rather, it changes the way in which the courts scrutinize federal law. The self-limitation defense of RFRA isa post hoc pretext for Congress’ bold aggrandizement of its powers. “The enactment of  [4] RFRA can in no sense be said to involve the “specially informed legislative competence’ of Congress.” 12

The attempt by RFRA’s supporters to recharacterize this act of hubris as a mild means of self-limitation is cause for some mirth. The language and history of RFRA are quite plain. By enacting RFRA, Congress intended to reject, to reverse, and to eviscerate the Supreme Court’s recent decision under the Free Exercise Clause, Employment Div., Dep’t of Human Resources of Oregon v. Smith. 13 “Points of constitutional interpretation were debated by Members of Congress in hearings and floor debates. Many criticized the Court’s reasoning [in Smith], and this disagreement resulted in the passage of RFRA.” 14 This action is, therefore, a direct attack on the Court’s structural role within the constitutional scheme. 15 Indeed, the plain language of the Act reveals RFRA as a bald-faced attempt by Congress to alter the meaning of the Free Exercise Clause as interpreted in cases and controversies involving burdens on religious conduct.

In Smith, the Court stated that burdens resulting from generally applicable law do not violate the free exercise of religion under the First Amendment. 16 In RFRA, Congress says the opposite. The first clause of the statute reads: “The Congress finds that the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution.” 17 Congress then proceeds to define the level of protection to be accorded free exercise of religion:

In general Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability [unless]… it is in furtherance of a compelling governmental interest;  [5]  and… is the least restrictive means of furthering that compelling governmental interest. 18

The separation of powers violation inherent in RFRA is so evident that one is tempted to assume Congress meant something other than what it said. Such an assumption would be a mistake. With RFRA, Congress has acted out of manifest disrespect for the Supreme Court as aninstitution, and has done so in the most unsubtle fashion imaginable. Congress based its decision to alter the balance of power between church and state under every law in the land solely on its distaste for Smith. 19 Congress attempts to paper over this unconstitutional grab for power witha handful of anecdotes relating to isolated incidental burdens on religious practice. 20 The Act’s legislative history, however, is replete with members of Congress castigating the Court for its interpretation of the Free Exercise Clause in Smith. 21 Indeed, the President fully understood and endorsed this usurpation of the courts’ role in the federal system when he hailed RFRA on the ground that it “reverses the Supreme Court’s decision [in] Employment Division against Smith.”22 In measured tones, the Supreme Court responded in Boerne:

Our national experience teaches that the Constitution is preserved best when each part of the government respects both the Constitution and the proper actions and determinations of the other branches. When the Court has interpreted the Constitution, it has acted within the province of the Judicial Branch, which embraces the duty to say what the law is. When the political branches of the Government act against the back [6]  ground of a judicial interpretation of the Constitution already issued, it must be understood that in later cases and controversies the Court will treat its precedents with the respect due them under settled principles, including stare decisis, and contrary expectations must be disappointed. RFRA was designed to control cases and controversies, such as the one before us; but the provisions of the federal statutes here invoked are beyond congressional authority, it is this Court’s precedent, not RFRA, which must control. 23

The Court further responded by discussing its most important separation of powers case, Marbury v. Madison, as follows:

Under our Constitution, the Federal Government is one of enumerated powers. The judicial authority to determine the constitutionality of laws, in cases and controversies, is based on the premise that the “powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” 24

According to Marbury, the Constitution is “superior paramount law, unchangeable by ordinary means.” 25 It is not “on a level with ordinary legislative acts, and, like other acts… alterable when the legislature shall please to alter it.” 26

Marbury was decided in the context of Article I, at a time when Section 5 of the Fourteenth Amendment was not yet conceived. From the beginning of the Republic, the Court has been charged with “saying what the law is.” 27 Boerne stands for the proposition that the Court’s role in interpreting the Constitution was not undermined or lessened as a result of the enactment of the Fourteenth Amendment. There is certainly nothing in Boerne that would give support to the reasoning that Marbury is now a dead letter when Congress acts pursuant to Article I, though still good law under Section 5. Indeed, the Boerne opinion makes clear that the reasoning of Marbury is essential to the preservation of the Constitution’s delicate balance of power in all circumstances. In Boerne, the Court warns of the consequences of abandoning the approach dictated by Marbury – consequences that result whether Congress is purportedly acting under Article I or Section 5 of the Fourteenth Amendment: “shifting legislative majorities could change the Constitution….” 28

Through RFRA, Congress has attempted to insert itself in the Court’s realm. The extent to which Congress overtakes the Court’s role is evident in the fact that RFRA not only overturns the Court’s [7]  decision in Smith, but also pre-Smith decisions that applied less than strict scrutiny. It eviscerates the Court’s settled approach to free exercise claims by prisoners. 29 It overturns the Court’s discretion to engage in deferential review of decisions by the military, 30 and it heightens the level of review to be applied in cases that involve government services and federal lands. 31In the face of the Boerne Court’s discussion of Marbury, any court that would uphold RFRA as applied to federal law poses for itself a seemingly insurmountable task.

B. Through RFRA, Congress Usurped Article V’s Amendment Procedure

The Court explains its decision to invalidate RFRA by criticizing the Act as an attempt to amend the Constitution in the absence of Article V procedures. 32 That RFRA is an effort to amend the Constitution in the absence of Article V procedures is evidenced clearly on the face of the statute as well as from the legislative record. Insofar as RFRA applies in every circumstance in which religion could be burdened by society’s laws, RFRA reproduces the Constitution’s breadth. 33RFRA applies to every law, passed by every government, at any time in the United States. 34 In the words of the Court, RFRA’s “sweeping coverage ensures its intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter.” 35 RFRA is not a decision by Congress to provide measured relief to identified burdens on  [8]  religion, as the Court invited in Smith, 36 but rather anunapologetic grab for power and a gratuitous handout to religion.

If RFRA is deemed constitutional as applied to federal law, it would endow Congress with the authority to alter the constitutional balance between church and state through nothing more thana majority vote. Whenever Congress disagreed with the Court’s interpretation of the Constitution, it would be able to alter unilaterally the balance of power embodied in the Constitution. There would be no need to debate the merits of a constitutional amendment regarding school prayer, or abortion, or equal rights for women. In the Court’s words, “shifting legislative majorities could change the Constitution and effectively circumvent the difficult and detailed amendment process contained in Article V.” 37 To forestall the instability attendant upon changing constitutional requirements, Article V’s onerous procedures stabilize the United States’ system of representative democracy by delaying the rush to alter the constitutional equilibrium. The model suggested by RFRA invites destabilization and the unilateral adjustment of power by interest groups rather than by the citizens of this country.

RFRA is an ingenious attempt by Congress to revise its role in the constitutional scheme. It is nothing less than a challenge to the very structure of the Constitution. Were RFRA good law, Congress could overtake the role of the Court and effect changes in the Constitution without satisfying the arduous requirements of Article V. RFRA is a means by which Congress could make the Court’s interpretations of the Constitution superfluous. Whether applied to state or federal law, RFRA plainly violates the separation of powers and undermines Article V of the Constitution.

III. The Religious Freedom Restoration Act Violates the Establishment Clause

In his concurrence in Boerne, Justice Stevens points out that RFRA is a rather straightforward violation of the Establishment Clause: “[Its] across-the-board” readjustment of church-state relations knows no precedent. 38 In every dispute religion could possibly have with government, RFRA has handed religious interests “a legal weapon that no atheist or agnostic can obtain.” 39 Ifa philosophical bookstore conflicts with any law, it has no extra help under RFRA. If a club wants to avoid the application of environmental or bankruptcy law, it cannot do so unless it is religious. In Justice Stevens’ words,  [9]  “this governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment.” 40

In its most recent Establishment Clause case, Agostini v. Felton, 41 the Court did not alter general principles used to evaluate Establishment Clause cases, but rather collapsed the three-part Lemon v. Kurtzman 42 test into a two-part test. The Court instructs that in an Establishment Clause case, courts must “ask whether the government acted with the purpose of advancing or inhibiting religion” and “whether the [law] has the “effect’ of advancing or inhibiting religion.” 43The Agostini Court identifies what had been a third inquiry under Lemon – the question whether the law induces an excessive entanglement between church and state – as an element of the “effects” test described above. 44 In addressing whether a law has the effect of advancing or inhibiting religion, the Agostini Court suggests that courts look to “the character and purposes of the institutions that are benefited [by the law], the nature of the aid that the State provides, and the resulting relationship between the government and religious authority.” 45

The application of the Agostini “effects” test to RFRA readily reveals RFRA’s constitutional flaws. First, the institutions benefited by RFRA are purely religious in character. 46 The law is only triggered when religious conduct is burdened by a generally applicable and neutral law. 47 RFRA displaces the Smith standard of review in every case and controversy involving burdens on religious conduct, 48 and  [10]  replaces it with a standard that gives religion significantly more leverage against duly enacted federal laws. This is an obvious and direct benefit to religion.

Second, the nature of the aid provided is a drastic standard of review that applies in every circumstance in which religious conduct might be burdened by neutral, generally applicable laws. In Justice Stevens’ words, it is a potent “legal weapon.” 49

Third, the resulting relationship between the government and religious authority is one of excessive entanglement. RFRA creates an incentive for Congress to ask whether a law will place unintended, incidental burdens on any religious conduct every time that it enacts a new law. 50RFRA’s enormous breadth means that Congress can only answer that question with massive oversight and study of all faiths practiced in this country. Under RFRA, the government must exercise special care for every religion if it is going to avoid costly litigation over every law. By contrast, the Smith scenario, which per [11]  mits legislative exemptions urged by those religions actually burdened, contains no such incentive. 51

The Coalition for the Free Exercise of Religion (hereinafter “the Coalition”), 52 has made the argument that if “Congress cannot [pass RFRA], then all exemptions for religious conduct throughout federal law are unconstitutional unless they are required by the Free Exercise Clause -a position that the Court has unanimously rejected.” 53 The Coalition simply misunderstands the constitutional error at the heart of RFRA: while exemptions may pass constitutional muster if carefully crafted to meet the requirements of the Free Exercise and Establishment Clauses, 54they cannot be effected blindly and en masse.

Religious liberty is not nearly as simplistic as RFRA’s supporters imply. They argue that the Constitution sets the floor for religious liberty, and that Congress may then add to that floor as it sees fit. This view of religion as an unlimited benefit to society is a view that would have been alien to the Framers. The records of the Constitutional Convention illustrate that there can be too much liberty for religion. The Framers crafted a constitutional scheme intended to achieve apragmatic balance of power between church and state. 55 Religion is protected from the state under the Free Exercise Clause, while the state is protected from religion under the Establishment Clause. 56 Thus, Congress does not have a free hand to supplement liberty. 57 The Establishment Clause provides a ceiling that does not permit the government significant room within which to expand religious liberties.

[12]  Whenever faced with Free Exercise or Establishment Clause arguments, the courts are, and should be, acutely aware that they are piloting a boat that must maneuver its way between Scylla and Charybdis. Whether a law accommodates appropriately a religious practice or breaches the Establishment Clause is almost always a close question. 58 Indeed, the Court monitors its religion clause jurisprudence to ensure that the lines it has drawn pursuant to the Establishment Clause result in an appropriate and pragmatic balance of power between church and state. 59

Thus, accommodation of the free exercise of religion requires close attention and careful lawmaking. RFRA attempts to undercut this balance by granting Congress greater latitude to determine the scope of religious freedom. RFRA’s one-size-fits-all formula does not show Congress acting pursuant to the suggestion for exemptions found in Smith. Rather, it illustrates Congress at its worst: acting at the behest of a group of organized religions, giving more to religion than religion has ever received in American history, 60 and shrugging off the careful weighing which the accommodation of religious practices requires.

RFRA’s introduction of a new and imposing standard of review is an unalloyed benefit for religion. There is no vacuum of power between the government and religion. By shouldering the least restrictive means test in all circumstances, Congress has eased the path of religion in all scenarios touched by federal law. Some have sug [13]  gested that Congress is simply monitoring its own enactments through RFRA and that Congress should be permitted to place hardships on the enforcement of its own laws. 61 This approach mistakes the substantive character of RFRA for amere procedural nicety.

Those defending RFRA as an amendment to federal law ask that courts take a leap of faith whena facial challenge to the Act arises. RFRA’s proponents do not deny that the enumerated power upon which RFRA is based cannot be discerned on the face of the statute. However, they argue that an appropriate enumerated power will surface each time the courts apply RFRA to a federal law. This construction argument cleverly immunizes RFRA from a facial attack on the grounds that Congress has inadequate power to enact such a law. In effect, the more broadly and generally Congress acts, the more likely that it can avoid having its laws invalidated by the courts at the facial stage. Thus, the benefit to religion is accomplished not only through the introduction of strict scrutiny in all cases, but also through delayed judicial review of RFRA’s constitutionality.

RFRA directs the courts to impose an extraordinary burden of proof on the federal government for the sake of religion. 62 Thus, Congress has provided, in one grand gesture, a powerful tool to leverage the accommodation of all religious conduct – regardless of the federal interest at stake. There may be constitutional authority for Congress to limit the scope of its enactments through asingle amendment. However, no such authority exists to provide unimagined benefits to religion in every circumstance in which religion is burdened by generally applicable, neutral law. Having chosen a standard of review that draws a boundary between church and state, and that has the inevitable effect of benefiting religion in every instance, Congress has seated religion in a throne of power.

Corporation of the Presiding Bishop v. Amos, 63 the case relied upon most heavily by RFRA’s supporters, illustrates the close attention to detail necessary to justify and craft constitutional exemptions. In Amos, the federal government exempted religious employers from Title VII’s requirement proscribing discrimination on the basis of religion by employers. 64 The Court upheld the exemption, stating that without it, the government would become entangled with religion. In other words, the exemption was necessary to avoid an Establishment Clause violation. 65

Comparing RFRA to Amos is like comparing apples to oranges. RFRA, unlike Amos, does not exempt religion from regulation for the purpose of avoiding an Establishment Clause violation. Rather,  [14]  RFRA institutes a standard of judicial review in every case which implicates religious conduct. In turn, this standard of review creates incentives for government to monitor, watch and keep track of the theological tenets of every religion in society. If government is to avoid the costly litigation attendant upon a multiplicity of RFRA claims, it must scrutinize every law that it passes with the interests of every religion in mind. It is not enough to be neutral. Government must also be vigilant for religion. By instituting an extremely demanding standard of judicial review applicable in every case which implicates religious conduct, RFRA creates incentives for government to become a theological overseer.

RFRA induces the very sort of entanglement that the law in Amos avoided. Amos did not involve alaw that exempted religion from every law in the country. Rather, it permitted the exemption of religious employers from a particular requirement in prescribed circumstances. 66 The law in Amos lacked RFRA’s vast scope; therefore, Amos cannot dictate how RFRA fares under the Establishment Clause.

In sum, RFRA engineers a society in which religion is preferred over irreligion and advocates asystem that encourages the government to monitor and study religion. Both evils violate the Establishment Clause.

IV. RFRA Represents Ultra Vires Congressional Action

“Under our Constitution, the Federal Government is one of enumerated powers.” 67 RFRA is fascinating precisely because it fails to indicate which Article I power justifies its application to federal law. Nothing on the face of the Act states which enumerated provision Congress used as the source of its power to direct the courts’ application of strict scrutiny whenever a law substantially burdens religious conduct. The only constitutional provisions to which RFRA refers are the Free Exercise Clause and the Establishment Clause. 68 Neither, of course, is an enumerated power. They are, rather, limitations on the exercise of Congress’s enumerated powers.


A. Congress’ Threadbare Consideration of RFRA’s Constitutionality, as Applied to Federal Law, Leaves the Constitutional Basis for RFRA Unclear and Undeserving of Deference

Though replete with criticism of Smith, the legislative history of RFRA does not address the issue of Congressional authority to alter the balance of power between church and state by providing religion with “a legal weapon that no atheist or agnostic can obtain.” 69 As support for Congressional authority, the legislative history invokes Section 5 of the Fourteenth Amendment. Section 5 is not, however, available to the federal government as a vehicle to regulate federal law. 70

In the following paragraph, the Congressional Research Service disposed of the question of Congress’ power to enact RFRA as applied to federal law:

With respect to the Federal government, Congressional power to enact RFRA would seem to derive from the necessary and proper clause of Article I, Section 8, of the Constitution. The First Amendment, like the due process clause of the Fourteenth Amendment, imposes a limitation on governmental power with respect to religion by providing that Congress shall make no law… prohibiting the free exercise (of religion)… Just as Section 5 of the Fourteenth Amendment gives Congress broad authority to implement the provisions of that Amendment, the necessary and proper clause gives Congress broad authority to formulate and adopt measures it deems necessary to carry out the other mandates of the Constitution. Chief Justice Marshall described the broad scope of the power conferred by the necessary and proper clause in M’Culloch v. Maryland: Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. 71

The Congressional Research Service seems to imply that the Necessary and Proper Clause modifies the First Amendment, as though the First Amendment is an enumerated power. Such aview turns the Constitution on its head, because it engrafts Article I’s enabling clause onto anexplicit limitation, and thus transforms limitations into powers. 72

Article I contains no enumerated power that permits, much less directs, Congress to enforce the Bill of Rights against itself. Congress  [16]  can only address rights indirectly through the appropriate exercise of a particular enumerated power. 73 For example, in Heart of Atlanta Motel, 74 the Court upheld Congress’ solution to the problem of discrimination in places of public accommodation as a valid exercise of its power under the Commerce Clause because the discrimination adversely affected interstate commerce. In contrast, Section 5 of the Fourteenth Amendment permits Congress to enforce constitutional obligations directly, and reflects the shared conclusion that another tool was required to bring the states within constitutional boundaries. 75 If there were any basis in the Constitution for Congress to attempt “a substantive change in constitutional protections,” it would have been under Section 5 of the Fourteenth Amendment. 76 Since Boerne rejected such a power under Section 5, 77 it is inconceivable that such a power would exist under Article I.

Congress seems to believe that the Necessary and Proper Clause was sufficient unto itself to support to RFRA. 78 Yet, the Necessary and Proper Clause cannot, by itself, justify congressional action. Two days after the Boerne decision was announced, the Supreme Court tellingly characterized the Necessary and Proper Clause as the “last, best hope of those who defend ultra vires congressional action.” 79 By this, the Court meant to reinforce the notion that the Necessary and Proper Clause must be linked to a specific enumerated power. By referring only to the Necessary and Proper Clause and no other enumerated power, Congress left the basis for RFRA unclear. Where Congress’ power to enact a particular act is not “visible to the naked eye,” congressional findings “enable [the courts] to evaluate the legislative judgment” that the legislature was acting within constitutional boundaries. 80 The findings in this instance evidence Congress’s purpose to overturn Smith and nothing more.

Congress simply did not consider meaningfully the difficult question of its power to enact RFRA as applied to federal law. The record accords the courts nothing on which to peg a theory of constitutional power. This procedural failure should doom RFRA. As a structural, constitutional principle, the courts should not create arguments to justify such legislation after the fact, but rather should  [17]  send the law back to Congress so that it can engage in the deliberation necessary to make its laws both apparently and actually constitutional. As the Supreme Court explained in Boerne:

When Congress acts within its sphere of power and responsibilities, it has not just the right but the duty to make its own informed judgment on the meaning and force of the Constitution… James Madison explained that “it is incontrovertibly of as much importance to this branch of the Government as to any other, that the constitution should be preserved entire. It is our duty.’ Were it otherwise, we would not afford Congress the presumption of validity its enactments now enjoy. 81

In other words, the jurisprudential presumption of constitutionality rests on the empirical assumption that Congress embraces its duty to examine the constitutional basis of its actions. This check on Congress’ power is grounded in common sense. In fact, it is essential to preserving asystem of shared and coordinate power among the federal branches. The federal source of power for RFRA is puzzling and troubling. The courts should not defer to Congress for the following reasons:

First, in circumstances where Congress is attempting to police fundamental rights, the rule that congressional action must be limited to enumerated powers should be observed with the greatest care. The First Amendment is a limitation on congressional authority, not a sphere of power. 82Just as Lopez protected federalism concerns by refusing to uphold a statute whose constitutional basis was “not visible to the naked eye,” 83 the courts should protect First Amendment interests by refusing to uphold statutes, the basis of which are opaque.

Second, the courts should not articulate independently an enumerated power for a statute where there is strong evidence that Congress has failed in its constitutionally-appointed role to be the independent policy decisionmaker for the national polity. 84 To the extent that Congress has rubber stamped the actions of particular interest groups without consideration of the polity’s concerns, the courts should read the enumerated powers requirement strictly.

Third, the enumerated powers doctrine should be read with increased vigor when Congress develops an utterly new form of law, like RFRA, and provides no explanation of its source of power. In this arena, the courts should not fill in the blank left by Congress. It is Congress’ obligation to elucidate the basis of new law. 85


B. RFRA Does Not Satisfy the Requirements of McCulloch v. Maryland

The doctrinal question is whether a law satisfies the requirements of M’Culloch v. Maryland. 86 As described by Chief Justice Marshall, the test for determining whether Congress has acted within its power is as follows:

let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional. 87

The discussion of separation of powers and the Establishment Clause in this Article makes clear that RFRA does not meet this standard. First, the language and history of the Act reveal two ends that are far from legitimate: (1) reversal of the Supreme Court’s decision in Smith; 88 and (2) privileging religion by affording it per se more power against government than any other entity. Neither is legitimate. The former violates the separation of powers doctrine, and the latter violates the Establishment Clause.

Second, Congress’ unilateral decision to alter the effect of the Free Exercise Clause through asimple majority vote is not “within the scope of the constitution.” 89 That job, if assumed at all, is best left to Article V and supermajorities of Congress and the states. 90 The Coalition’s defense of RFRA as a simple amendment to every federal law is a pretext for what is, in reality, aconstitutional amendment.

Third, RFRA’s “means” are not “appropriate.” 91 They constitute a directive to the lower courts to ignore the Supreme Court’s standard of review. In its stead, they adopt Congress’ preferred standard in cases and controversies raising free exercise claims. 92 Rather than providing for exemptions in circumstances where religious conduct is in fact burdened by a generally applicable law, 93 Congress decided to invade the courts’ domain. RFRA is nothing more than a bald-faced attempt to commandeer the Court’s interpretation of the Constitution. It is not the legitimate exercise of a power granted to Congress by the Constitution.

[19]  Finally, RFRA is not “consistent with the letter and spirit of the constitution.” 94 It is aunilateral attempt to revise the meaning of the Constitution; it transforms the First Amendment into an enumerated power and it elevates religion above all other interests in society. Moreover, it boldly invades the courts’ terrain. Any one of these characteristics alone would undermine the structural integrity of the Constitution. Taken together, they are a frontal assault. RFRA is ultra vires.

V. Conclusion

The Supreme Court’s decision in Boerne left RFRA proponents little room to maneuver. Like all important constitutional law decisions, the case was about power. RFRA, in fact, prompted aprimer on constitutional power. In Boerne, the Court declared that Congress lacks the power to reverse the Supreme Court’s interpretation of the Constitution. 95 Further, the Court stated that Congress may not readjust the balance of power between church and state unilaterally. 96

When the Court reaches the question of RFRA’s constitutionality as applied to federal law, it may have the opportunity to address RFRA’s Establishment Clause and due process of lawmaking defects. It could point out that Congress must articulate the constitutional basis upon which it acts when it attempts to regulate First Amendment freedoms in gross, when it responds reflexively toa powerful interest group, and when it devises a new statutory form. This is a fair burden if Congress’s enactments are to be accorded deference. The Religious Freedom Restoration Act is unconstitutional, period.

Copyright (c) 1998 Trustees of the University of Pennsylvania
University of Pennsylvania Journal of Constitutional Law


CITY OF BOERNE v. FLORES, 1996 U.S. S. Ct. Briefs LEXIS 761

No. 95-2074

Supreme Court of the United States

October Term, 1996

November 29, 1996

Reporter: 1996 U.S. S. Ct. Briefs LEXIS 761

CITY OF BOERNE, TEXAS, Petitioner, versus P.F. FLORES, ARCHBISHOP OF SAN ANTONIO, Respondent, and UNITED STATES OF AMERICA, Intervenor-Respondent.

Type: Brief

Prior History:  [1]



Lowell F. Denton, Esq., DENTON, McKAMIE & NAVARRO, 1700 Tower Life Building, 310 South St. Mary’s Street, San Antonio, Texas 78205, (210) 227-3243

Gordon L. Hollon, Esq., 101 N. Saunders, Boerne, Texas 78006, (210) 249-2521, Attorneys for Petitioner City of Boerne, Texas

Marci A. Hamilton, Esq., 482 Kings Road, Yardley, Pennsylvania 19067, (215) 493-1973 Counsel of Record





1. Whether Congress violated the separation of powers doctrine by legislatively overruling a Supreme Court determination of the scope of the Free Exercise Clause of the First Amendment.

2. Whether Congress violated the constitutional balance between its power under Section 5 of the Fourteenth Amendment and fundamental principles of federalism by commandeering state and local governments to be agents of a federal policy to accommodate religious exercise more than the Constitution requires.

3. Whether Katzenbach v. Morgan, 384 U.S. 641 (1966), should be overruled in part.

4. Whether Congress violated the Establishment Clause of the First Amendment by broadly [2] and exclusively privileging religion over other expressions of conscience.


Flores v. City of Boerne, 877 F. Supp. 355 (W.D. Tex. 1995), reprinted in Cert. Pet. App. 1 at 24a-29a; Flores v. City of Boerne, Texas, 73 F.3d 1352 (5th Cir. 1996), reprinted in Cert. Pet. App. at 1a-23a. Order Granting United States Leave to Intervene, March 13, 1995, reprinted in Cert. Pet. App. at 32a; Petition for Leave to Appeal an Interlocutory Order, granted May 9, 1995, reprinted in Jt. App. at 74; Order Treating the Suggestion for Rehearing En Banc as a Petition for Panel Rehearing, denied March 28, 1996, reprinted in Cert. Pet. App. at 30a.



The Fifth Circuit decision was reached on January 23, 1996; the petition for rehearing en banc, which was treated by the Fifth Circuit as a petition for rehearing, was denied on March 28, 1996. This Court has jurisdiction under 28 U.S.C. § 1254(1) (1994).


Religious Freedom Restoration Act, 42 U.S.C. § 2000bb1-4 (1993), reprinted in Cert. Pet. App. at 39a-42a; U.S. Constitution, Article III,§ 1, reprinted in Cert. Pet. App. at 35a; Amendment XIV, §§ 1, 5, reprinted in Cert. Pet. App. at 36a-38a; Amendment I, clauses 1, 2, reprinted in Cert. Pet. App. at 36a; Amendment X, reprinted in Cert. Pet. App. at 36a.


1. Facts. This case is about a request to tear down a beautiful stone church, whose times and memories are graven into the souls of a city. While the issue of the church’s precise historical value is a matter that has been left to trial, Jt. App. at 72, the City maintains that St. Peter Church, which was built in 1923, is a striking example of mission revival [10]  architecture self-consciously referring back to the original Spanish missions in South Texas. As one arrives in the City of Boerne, Texas, this highly visible church set on a hill speaks directly of the history of this City and its people. Klein Affidavit, Jt. App. at 43. The people of the City seek to preserve their community’s shared history as reflected in this familiar mission revival structure. Id.

With Ordinance 91-05, the City of Boerne enacted a historic preservation law intended to preserve and protect its rich history and culture. Recognizing that “rapid change in population, economic functions and land use activities” has threatened the distinctive historical character of its community, the City Council of Boerne passed its historic landmark preservation law for the following purposes:

(1) “To protect, enhance, and perpetuate selected historic landmarks which represent or reflect distinctive and important elements of the city’s and State’s architectural, archeological, cultural, social, economic, ethnic and political history . . . .”

(2) “To safeguard the City’s historic and cultural heritage . . . .”

(3) “To stabilize and improve property values in such locations.  [11]  ”

(4) “To foster civic pride in the beauty and accomplishments of the past.”

(5) “To protect and enhance the City’s attractions to tourists and visitors and provide incidental support and stimulus to business and industry.”

(6) “To strengthen the economy of the City.”

(7) “To promote the use of historic landmarks for the culture, prosperity, education and general welfare of the people of the City and visitors to the City.”

Cert. Pet. App. at 46a-48a.


Boerne’s historic preservation law represents years of effort on the part of the City and evidences the citizens’ commitment to their community’s heritage. On May 20, 1985, the City Council duly enacted Ordinance No. 85-11, which authorized the creation of a Landmark Commission. Jt. App. at 66. The Landmark Commission was appointed on November 10, 1987, began to explore the creation of a historic district on February 16, 1988, and held numerous meetings to discuss the historic district boundaries. Id. Three public hearings were held in 1990 to discuss and determine the historic district boundaries. Id.

Ordinance 91-05, which was enacted into law on June 25, 1991, codifies the City’s historical preservation policy [12]  goals; defines “historic landmark” and “historic district”; appoints and designates procedures for a “Historic Landmark Commission”; orders the Commission to prepare a landmark preservation plan; and designates procedures for the following: the acquisition and removal of historic landmark designation, the creation of historic districts, the evaluation of proposed exterior changes to structures within a historical district or a designated historic landmark, and the acquisition of a historic structure preservation tax exemption. Cert. Pet. App. at 46a-63a. Pursuant to Ordinance 91-05, the Historic Landmark Commission presented its recommendation for creation of the historic district to the Planning and Zoning Commission on October 1, 1991. Jt. App. at 67.

Respondent Flores was given notice of the December 3, 1991 hearing of the Planning and Zoning Commission and City Council for the creation of the historic district. Jt. App. at 69. Subsequently, Ordinance 91-15 added the historic overlay district to the City of Boerne zoning map on January 14, 1992. Jt. App. at 68. Ordinance 91-15 states that rapid changes in the local population, economy, and land use have led to the demolition of [13]  historical structures that “reflect the heritage of the state, and its people . . . so that the city, the state, and the nation are thereby losing a part of their heritage.” Jt. App. at 24.

There is no dispute that the City’s historic preservation ordinance covers at the least a substantial portion of the church. Flores v. City of Boerne, 73 F.3d 1352, 1354 (5th Cir. 1996).

On December 14, 1993, a building permit application was submitted on behalf of Respondent Flores for the purpose of demolishing and expanding St. Peter Church. Jt. App. at 67. A public hearing was held by the Landmark Commission to consider the application. Upon its determination that the proposed plan will adversely affect the historic district and is inappropriate or inconsistent with the spirit and purposes of Ordinance 91-05, the Landmark Commission advised the City Building Inspector, Mr. Ed Beasley, that the permit could not be approved until certain changes to the application were made. Jt. App. at 68-69. The letter stated that the Landmark Commission had employed the following criteria, which are taken from Sec. 6.1 of Ordinance 91-05, to determine that the application violated the ordinance:  [14]

1. Character, interest or value as part of the development, heritage or cultural characteristics of the City.

3. Embodiment of distinguishing characteristics of an architectural type or specimen.

5. Unique location of singular physical characteristics representing an established and familiar visual feature of a neighborhood, community or the City.

6. Value as an aspect of community sentiment or public pride.

The letter further stated: “Due to the structure’s historical importance to the community and our charge of protecting and preserving certain structures, areas, etc., deemed historical, any new plans shall not include demolition of the existing structure referred to as St. Peter’s Catholic Church.” Jt. App. at 39a. The City Building Inspector sent a letter to Respondent’s architect, Mr. Gregory Davis, confirming the denial of the permit by the Landmark Commission. Jt. App. at 60a.


Pursuant to Ordinance 91-05, Respondent Flores appealed the Landmark Commission’s decision to the City Council. After notice and a public hearing, the City Council voted to deny Respondent’s appeal. Jt. App. at 69. Representatives of both parties have considered [15]  alternative site designs but have been unable to reach an agreement. Jt. App. at 70. Respondent Flores filed this suit, pursuant to 28 U.S.C. § 1331, alleging inter alia that Ordinance 91-05 violates the Religious Freedom Restoration Act (“RFRA” or “the Act”), 42 U.S.C. § 2000bb (1993).

2. The District Court. Following certification of the question of RFRA’s constitutionality pursuant to28 U.S.C. § 2403(a) to the Attorney General of the United States, intervention of the United States, and briefing on the constitutional issue by all parties, the district court ruled that RFRA was facially invalid because “Congress specifically sought to overturn Supreme Court precedent as found in Employment Division v. Smith through the passage of RFRA,” Flores v. City of Boerne, 877 F. Supp. 355, 357 (W. D. Tex. 1995), and therefore infringed on the long-settled authority of the courts “‘to say what the law is.'” Id. (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). The court noted Congress’s power under Section 5 of the Fourteenth Amendment, but did not find it a persuasive basis [16]  for congressional authority in light of “Congress’ violation of the doctrine of Separation of Powers by intruding on the power and duty of the judiciary.” Flores, 877 F. Supp. at 357.

The district court certified its order for interlocutory appeal to the court of appeals pursuant to 28 U.S.C. § 1292(b). Cert. Pet. App. at 29a. Respondent Flores and the United States appealed the district court’s decision. The court of appeals accepted the appeal, treating it as a Fed. R. Civ. P. 54(b) partial final judgment. Jt. App. at 73.

3. The Court of Appeals. The court of appeals reversed on four grounds. First, the court held that Congress acted within its power under Section 5 of the Fourteenth Amendment on the theory that RFRA is remedial because it prohibits “budding or disguised constitutional violations,” “sprouting constitutional violations,” and “incipient constitutional violations.” Flores, 73 F.3d at 1359-60. The court applied the three-part test found in M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819):

Let the end be legitimate, let it be within the scope of the constitution, and all means which are [17]  appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.


The Fifth Circuit found that RFRA “may be regarded” as an enactment to enforce the Fourteenth Amendment, which incorporates the First Amendment. In support of its conclusion that RFRA enforces the First Amendment’s prohibitions against the states, the court cited legislative history regarding the “need for legislation to defend individuals, particularly those from minority religions, from generally applicable laws that burden the exercise of religion.” Flores, 73 F.3d at 1359.

The court then stated that RFRA is “plainly adapted to [the end of the First Amendment.]” Flores, 73 F.3d at 1360. The court agreed with the United States’ argument that “even if the Constitution only prohibits governmental action taken with the intent of interfering with religious exercise, Congress may go farther, as it did with RFRA, and prohibit conduct that has the effect of burdening the exercise of religion” on the ground that this Court had held in City of Rome v. United States, 446 U.S. 156, 177 (1980), [18]  that Congress may “prohibit laws with a racially discriminatory effect . . . as an appropriate method of promoting the Amendment’s purpose, even if the Constitution only prohibits laws with a racially discriminatory intent.” Flores, 73 F.3d at 1360. Further, the court reasoned, RFRA could be justified as an attempt to protect religious minorities, and that Congress “could reasonably conclude” that minority religions would be at a disadvantage in obtaining religious exemptions. Id.

The Fifth Circuit ruled that the third prong of the M’Culloch test, whether RFRA is consistent “with the letter and spirit of the constitution,” was satisfied because RFRA did not violate the separation of powers, the Establishment Clause, or the Tenth Amendment.

Second, the court addressed the City’s separation of powers challenge to RFRA. The City had argued that RFRA violates the separation of powers by permitting Congress to legislate an interpretation of the Constitution at odds with the Supreme Court’s interpretation. The City cited this Court’s statement in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), that it is the duty of the judiciary “to say what the law [19]  is.” Acknowledging that RFRA is a “direct response to the Supreme Court’s decision in Smith,” the court rejected the notion that RFRA “second-guess[es] the courts.” Flores, 73 F.3d at 1361. Rather, the court characterized RFRA as a statute regulating “nascent violations” of the Free Exercise Clause, in the sense that it dispenses with the requirement that discriminatory purpose be shown in order to ferret out substantial burdens on the free exercise of religion. Id.

The court of appeals also reasoned that because governments may accommodate religion more than the Free Exercise Clause requires, Congress has the power to force all governments to accommodate all religious conduct substantially burdened by a generally applicable law. It concluded: “In short, the judiciary’s duty is to say what the law is, but that duty is not exclusive.”Id. at 1363.

The court of appeals also termed as “facile” the United States’ argument that RFRA is merely a statute that “provides legislative protection for a constitutional right over and above that provided by the Constitution.” Flores, 73 F.3d at 1361. The court stated: “We will not pretend that RFRA is [20]  anything but a direct response to the Supreme Court’s decision in Smith.” Id. Nevertheless, the court upheld RFRA on the theory that Section 5 permits Congress “an extraordinary exercise of power.” Flores, 73 F.3d at 1362.

Third, the court rejected the City’s argument that RFRA violates the Establishment Clause by privileging religion on the ground that RFRA does not “amount to the Government coercing religious activity through ‘its own activities and influence.'” Flores, 73 F.3d at 1364 (quotingCorporation of Presiding Bishop v. Amos, 483 U.S. 327, 337 (1987)).

Finally, the court held that RFRA “on its face” does not violate the Tenth Amendment, but left “RFRA’s applicability to particular areas of state regulation . . . for individual, case-by-case resolution.” Id.

The City of Boerne filed a timely Petition for Writ of Certiorari in this Court, and on October 15, 1996, the writ was granted.


The Religious Freedom Restoration Act requires governments to accommodate religious conduct unless they can prove a “compelling interest” and that they have acted with the “least restrictive means.” 42 U.S.C. § 2000bb-1, [21]  reprinted in Cert. Pet. App. at 40a. It was enacted for the purpose of supplanting this Court’s interpretation of the Free Exercise Clause announced inEmployment Division v. Smith, 494 U.S. 872 (1990), with an interpretation more palatable to Congress.

The word “Restoration” in the Act’s title is a euphemism. In Smith, this Court announced that neutral, generally applicable laws are not subject to the compelling interest standard. Smith, 494 U.S. at 885. RFRA’s across-the-board, extraordinarily high standard requires more than this Court’s free exercise doctrine ever required, either in Smith or before Smith. This brazen attempt to take over free exercise law knows no parallel in congressional history and violates the separation of powers, federalism principles, and the Establishment Clause.

The courts’ core judicial function is to resolve Article III cases or controversies by reading and interpreting the relevant constitutional text. Under the guise of creating a “statutory” cause of action to support a legislatively-preferred reading of the Free Exercise Clause, Congress has taken over the judicial function of interpreting the Constitution in the course [22]  of adjudicating cases and controversies.

RFRA is not a valid exercise of Congress’s power under Section 5 of the Fourteenth Amendment. Under The Civil Rights Cases, 109 U.S. 3 (1883), Section 5 extends power to Congress solely to enforce constitutional guarantees. Id. at 11. The Act’s invalidation of every law that incidentally burdens the free exercise of religion, whether the law targets a particular religion or not, creates extra-constitutional rights and therefore exceeds Congress’s remedial power under Section 5.

This Court should lay to rest the “substantive power theory,” i.e., the notion that Congress may expand the scope of constitutional guarantees, which was an alternative holding in the Voting Rights Act cases, and which transgresses separation of powers and federalism concerns.

The Act oversteps federalism boundaries inherent in Section 5 by forcing state and local governments to abide by a statutory scheme that is not required by the Constitution.

RFRA violates the Establishment Clause by privileging religion over all other forms of conscience. It fails this Court’s test announced in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). [23]  It does not have a secular purpose. It is certainly not neutral in effect. It requires entanglement of church and state by requiring all governments to become intimately informed on the theological tenets of every religion in the relevant community in order to be able to enact a law that is the least restrictive means.


The Religious Freedom Restoration Act mocks the genius of the American Constitution’s structure. “From the standpoint of the . . . constitutional structure of this Nation, [the Religious Freedom Restoration Act] bring[s] us to a crossroad that is marked with a formidable ‘Stop’ sign. That sign compels us to pause before we [are carried] to the point of sanctioning Congress'” attempt to expand the scope of constitutional rights “by simple legislation.” Oregon v. Mitchell, 400 U.S. 112, 152 (1970) (Harlan, J., concurring in part and dissenting in part).

The success of the Constitution resides in the Framers’ fundamental insight that a division of duties, authority, and power is essential to avoiding the concentrations of power that irresistibly lead to tyranny. In James Madison’s words, “The accumulation of all powers, legislative,  [24] executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” The Federalist No. 47, at 301 (James Madison) (Clinton Rossiter ed., 1961). Acutely conscious of the history of tyranny in other countries and times, the Framers crafted a series of mechanisms intended to prevent the consolidation of too much power in any one institution. They separated the powers of the federal government into three branches, divided power between the federal and the state governments, and prohibited the union of church and state. With RFRA, Congress has disabled all three mechanisms, simultaneously transgressing three different constitutional boundaries.


The Religious Freedom Restoration Act is an undisguised attempt by Congress to overtake this Court’s core constitutional function and to reverse this Court’s statement of the meaning of the First Amendment’s Free Exercise Clause in Smith, 494 U.S. 872 (1990). See, e.g., The Religious Freedom Restoration Act of 1990: Hearings on H.R.  [25]  5377 Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 101st Cong., 2d Sess. 8, 9, 38, 41, 48 (1990). It rejects the Court’s announced standard, which does not apply the Free Exercise Clause to general and otherwise valid neutral laws that incidentally burden religious conduct, and replaces it with one more pleasing to Congress. See 42 U.S.C. § 2000bb(a)(4), Cert. Pet. App. at 39a (criticizing Smith standard); id. at §§ 2000bb(b)(1), 2000bb-1(a)-(c), Cert. Pet. App. at 40a (instituting compelling interest and least restrictive means tests whenever religious conduct is substantially burdened). “RFRA’s rewrite of the Free Exercise Clause . . . is but the vehicle by which Congress seeks to ride into the judicial reservation.” Eugene Gressman & Angela C. Carmella, The RFRA Revision of the Free Exercise Clause, 57 Ohio St. L.J. 65, 111 (1996).

A.  Separation of Powers Principles

Long settled constitutional doctrine holds that it is “emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803); U.S. Const. art.  [26]  III, §§ 1, 2. The Supreme Court, and only the Supreme Court, is the “ultimate interpreter of the Constitution.” Baker v. Carr, 369 U.S. 186, 211 (1962). The Supreme Court’s core constitutional function is to decide the meaning of the Constitution in the context of deciding Article III cases and controversies.

Where Congress or the President tries to overtake this core judicial function, it violates the separation of powers. “It remains a basic principle of our constitutional scheme that one branch of the Government may not intrude upon the central prerogatives of another.” Loving v. United States, 116 S. Ct. 1737, 1743 (1996) (citing Plaut v. Spendthrift Farm, Inc., 115 S. Ct. 1447 (1995)). The judicial branch has been characterized as the “least dangerous branch.” See Alexander M. Bickel, The Least Dangerous Branch (1962). Where its distinctive power to set constitutional standards of review has been usurped, it is the most irrelevant branch. In the words of Alexander Hamilton:

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as, a fundamental [27] law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

The Federalist No. 78, at 467 (Alexander Hamilton) (Clinton Rossiter ed., 1961). See also United States v. Nixon, 418 U.S. 683, 703 (1974);Plaut v. Spendthrift Farm, Inc., 115 S.Ct. 1447, 1463 (1995) (“The doctrine of separation of powers is a structural safeguard.”). The eminent constitutional scholar Thomas Cooley articulated the separation of powers problem embedded in RFRA in precise terms: the legislature “cannot compel the courts . . . to adopt a particular construction of a law [and] cannot… require of them a construction of the law according to its own views.” Thomas Cooley, Constitutional Limitations 94-95 (1868), cited with approval in Plaut, 115 S. Ct. at 1455-56.


“Congress simply lacks [28]  the constitutional authority to override the Court’s interpretation of the First Amendment.” Douglas Laycock & Oliver S. Thomas, Interpreting the Religious Freedom Restoration Act, 73 Tex. L. Rev. 209, 243 (1994). After this Court declared the meaning of the Free Exercise Clause in Smith, Congress had no latitude to introduce a competing standard and then to direct the courts to implement that standard in cases adjudicating free exercise interests.

With RFRA, Congress has overstepped the bounds of its legitimate constitutional powers and made real the “fear of legislative usurpation” that animated the Framers’ pivotal decision to institute a government of limited powers. Henry P. Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1, 32 (1983). In the end, this case is not about religious liberty, but rather about the power of Congress to alter the Constitution’s liberty-preserving structure.

Fortunately, “the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to [29]  the crisis of the day.” New York v. United States, 505 U.S. 144, 187 (1992).

B.  The Supreme Court’s Free Exercise Doctrine

In 1990, this Court took the occasion of its decision in Employment Division v. Smith, 494 U.S. 872 (1990), to survey First Amendment Free Exercise doctrine. Reaffirming the approach that this Court has employed since its first free exercise decision, Reynolds v. United States, 98 U.S. 145 (1879), this Court explained that the compelling interest standard announced eighty-five years after Reynolds in Sherbert v. Verner, 374 U.S. 398 (1963), had been applied rarely in free exercise cases involving neutral, nondiscriminatory, generally applicable laws. Smith, 494 U.S. at 883-85. Justice Scalia, writing for the Court and joined by Chief Justice Rehnquist and Justices White, Stevens, and Kennedy, surveyed the doctrine as follows:

We have never invalidated any governmental action on the basis of the Sherbert test except the denial of unemployment compensation. Although we have sometimes purported to apply the Sherbert test in contexts other than that, we have always found the test satisfied.  [30]  In recent years we have abstained from applying the Sherbert test … In Bowen v. Roy, 476 U.S. 693 (1986), we declined to apply Sherbert analysis to a federal statutory scheme that required benefit applicants and recipients to provide their Social Security numbers … In Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439 (1988), we declined to apply Sherbert analysis to the Government’s logging and road construction activities on lands used for religious purposes by several Native American Tribes . . . In Goldman v. Weinberger, 475 U.S. 503, 106 S. Ct. 1310, 89 L.Ed.2d 478 (1986), we rejected application of the Sherbert test to military dress regulations that forbade the wearing of yarmulkes. In O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987), we sustained without mentioning the Sherbert test, a prison’s refusal to excuse inmates from work requirements to attend worship services.

Smith, 494 U.S. at 883-84 (citations omitted).


Even those in dissent in Smith agreed that the compelling interest test had not obtained in every context. Justices Brennan, Marshall and Blackmun joined the section [31]  of Justice O’Connor’s concurrence in the judgment in which she identified “contexts in which [the Court has] not traditionally required the government to justify a burden on religious conduct by articulating a compelling interest.” Id. at 900-01 (identifying cases involving the government’s conduct of its own internal affairs, military regulations and prison regulations as subject to deferential review).2


The Court continued: “Even if we were inclined to breathe into Sherbert some life beyond the unemployment compensation field, we would not apply it to require exemptions from a generally applicable criminal law … We conclude today that the sounder approach, and the approach in accord with the vast majority of our precedents, is to hold the [Sherbert] test inapplicable to… [free exercise] challenges [to generally applicable laws].” Id. at 885-86 (emphasis added). In other words, the compelling interest test was inconsistent with most of the Court’s free exercise precedents.

The Smith Court limited its discussion to the compelling interest test announced in Sherbert, not even referring to the least restrictive means test that appears in § 2000bb-1(b) of RFRA. In fact, the least restrictive means test has not been a staple of free exercise doctrine. It has never been used by this Court to invalidate a law and has been cited as a component of the standard of review for free exercise cases in only one case, Thomas v. Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707, 718 (1981). See also The Religious Freedom Restoration Act of 1991: Hearings on H.R. 2797 [33]  Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 102d Cong., 2d Sess. 380-81 (1992) (statement of Professor Ira C. Lupu) (“You will search the Supreme Court’s opinions in Yoder and Sherbert in vain for the [least restrictive means test].”).

The Smith Court explained its decision to follow the larger trend of its precedents rather than to extend the compelling interest test beyond the few cases employing it, saying:

Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs, and its determination to coerce or suppress none of them. Precisely because “we are a cosmopolitan nation made up of people of almost every conceivable religious preference,” Braunfeld v. Brown, 366 U.S., at 606, and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order.

Smith, 494 U.S. at 888.


Five months before RFRA was enacted,  [34]  the Court reaffirmed its commitment to its free exercise doctrine announced in Smith with its decision in Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). The opinion for the Court, written by Justice Kennedy and joined by Chief Justice Rehnquist and Justices Stevens, White, Scalia, and Thomas, declared: “In addressing the constitutional protection for free exercise of religion, our cases establish the general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.” Lukumi, 508 U.S. at 531. Although challenged to retreat from the Smith Court’s analysis by separate opinions authored by Justices Blackmun, id. at 577 (Blackmun, J., concurring in the judgment), and Souter, id. at 559 (Souter, J., concurring in part and concurring in the judgment), this Court adhered to the Smith analysis of free exercise doctrine. Congress ignored this manifest reaffirmation of the Court’s free exercise doctrine and enacted RFRA only months later.

C. Congress’s Hostile [35]  Response to Employment Division v. Smith

The plain language of RFRA, as well as its legislative history, make painfully clear that members of Congress read the Court’s thoughtful opinion in Smith with attention and therefore understood that the Court had declared that the First Amendment’s free exercise doctrine does not require strict scrutiny of neutral, nondiscriminatory, generally applicable regulations. 3Smith, 494 U.S. at 888. Not satisfied with the Court’s statement of the Free Exercise Clause, Congress, at the insistence of organized religions and civil liberties groups from around the country, drafted and enacted RFRA for the sole purpose of overturning Smith. 4


Any hopes that the Executive Branch’s veto power might have been exercised to halt this march into the judiciary’s terrain were dashed when President Clinton signed RFRA into law, saying RFRA “reverses the Supreme Court’s decision [in] Employment Division against Smith.” Remarks on Signing the Religious Freedom Restoration Act of 1993, II Pub. Papers 2000 (Nov. 16, 1993).

The Religious Freedom Restoration Act is nothing less than a competing interpretation of the Free Exercise Clause. In the Free Exercise context, it turns day to night. It transforms presumptively valid neutral, nondiscriminatory, and generally applicable laws into “presumptively invalid” laws. Smith, 494 U.S. at 888.

RFRA bears the hallmarks of a constitutional decision overruling a prior judicial precedent. The text of the Act is not in the least shy about declaring its constitutional character. The Act begins with the following declaration: “The framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution.” 42 U.S.C. § 2000bb(a)(1), Cert. Pet. App. at 39a. The Act goes [37]  so far as to define “exercise of religion” for purposes of the Act as “the exercise of religion under the First Amendment to the Constitution.” 42 U.S.C. § 2000bb-2(4), Cert. Pet. App. at 41a.

The Act’s scope is constitutional in nature, its sweep breathtaking. RFRA applies to every government and every law in the United States, past, present and future:

Every government. The Act defines “government” as including “a branch, department, agency, instrumentality, and official (or person acting under color of law) of the United States, a State, or a subdivision of a State.” 42 U.S.C. § 2000bb-2(1), Cert. Pet. App. at 41a.

Every law. The Act states that RFRA “applies to all Federal and State laws, and the implementation of that law, whether statutory or otherwise.” 42 U.S.C. § 2000bb-3(a), Cert. Pet. App. at 41a. The range of amici in support of Petitioner evidences the way in which RFRA invades every arena of government regulation: from the protection of children to historical preservation and urban planning to prison oversight. These in turn reflect only a small portion of the universe affected by [38]  RFRA.

Every time. The Act expressly applies to every law that was “adopted before or after November 16, 1993 [the date of RFRA’s enactment].” 42 U.S.C. § 2000bb-3(b), Cert. Pet. App. at 41a.

In direct and unmistakable contravention of Smith, Congress enacted into law the compelling interest test announced in Sherbert, stating, “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability [unless the law] is in furtherance of a compelling governmental interest.” 42 U.S.C. § 2000bb-1(a), reprinted in Cert. Pet. App. at 40a.

Congress also codified in RFRA a least restrictive means test, despite its insignificant role in free exercise cases. See 42 U.S.C. § 2000bb-1(b), reprinted in Cert. Pet. App. at 40a. In short, RFRA mandates a standard — the compelling interest test — that the Supreme Court expressly stated was not the traditional or the appropriate standard in free exercise cases, Smith, 494 U.S. at 884-85, and appends to it a test so infrequently invoked that the Smith Court found it unnecessary [39]  to address.

RFRA’s new standard marks a sea change from prior free exercise law. The least restrictive means test by itself transforms Smith’s presumption of validity for neutral, generally applicable laws into a standard that “will ultimately lead to striking down almost any statute on the ground that the Court could think of another ‘less restrictive’ way to write it.” Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 294-95 (1985) (Rehnquist, J., dissenting).

Predictably and ironically, in Congress’s headlong rush to “fix” free exercise law, Congress drafted a new free exercise standard. As the preceding description of the Court’s doctrine should make clear, the euphemistically-named Religious Freedom Restoration Act does not restore the free exercise doctrine in place before Smith but rather creates out of whole cloth a new free exercise standard characterized by a rigid, across-the-board standard not in evidence in the “vast majority” of the Court’s Free Exercise decisions before Smith was decided. Smith, 494 U.S. at 882-87; see also id. at 900-01 (O’Connor, J., concurring). Indeed, the most oppressive aspect of RFRA for governments [40]  — the least restrictive means test — is a virtual novelty in the free exercise arena. See supra part I.B. If what members of Congress intended to do was to restore prior law, they bungled the job rather seriously.

Congress has co-opted the Court’s interpretive role. As a direct result, the courts have been relegated in free exercise cases to the role of interpreting Congress’s inaccurate assessment of the Constitution, rather than their constitutionally appointed role of interpreting the Constitution itself.

RFRA’s defenders have attempted to gloss over its glaring separation of powers faults by stating that it is merely a “statutory” right over and above a constitutional floor set by the Court. The characterization of RFRA as a “mere statutory right,” however, is nothing more than a thin pretext for Congress’s attempt to overtake the Court’s appointed role in interpreting the Free Exercise Clause of the First Amendment. See M’Culloch v. Maryland, 17 U.S. (4 Wheat) 316 (1819) (“The judicial department . . . will decide whether the connection is real, or assumed as the pretext for the usurpation of powers not belonging to the government.”). The lower courts have had [41] little patience with this misleading defense of RFRA. See Flores, 73 F.3d at 1361;Hamilton v. Schriro, 74 F.3d 1545, 1563 (8th Cir. 1996) (McMillian, J., dissenting); Hodge v. Magic Valley Evangelical Free Church, Inc., 200 B.R. 884, 900-01 (Bankr. D. Idaho 1996);Keeler v. Mayor & City Council of Cumberland, 928 F. Supp. 591, 599 (D. Md. 1996).

D.  RFRA Must Be Struck to Preserve the Balance of Power Between the Court and Congress

The Supreme Court bears responsibility to delineate the constitutional scope of congressional power to legislate. See United States v. Lopez, 115 S. Ct. 1624, 1639-40 (1995) (Kennedy, J., concurring); Miller v. Johnson, 115 S. Ct. 2475, 2491 (1995). As then-Justice Rehnquist has stated,

While the presumption of constitutionality is due to any act of a coordinate branch of the Federal Government or of one of the States, it is this Court which is ultimately responsible for deciding challenges to the exercise of power by those entities.

City of Rome, 446 U.S. at 207 (Rehnquist, J., dissenting). RFRA’s transgression of judicial power overcomes [42]  this presumption of constitutionality. “To allow a simple majority of Congress to have final say on matters of constitutional interpretation is . . . fundamentally out of keeping with the constitutional structure.” Mitchell, 400 U.S. at 205 (Harlan, J., concurring in part and dissenting in part).

In essence, Congress has instructed the Supreme Court how to interpret the Free Exercise Clause of the First Amendment (that is, apply the compelling interest test), even though the Court, the entity charged by the Constitution with its application, has determined that the compelling interest test is neither feasible nor required. It hardly needs to be said that where Congress and the Supreme Court are so clearly at odds with each other over the definition of a fundamental right, the conflict presents an obvious and serious threat to the delicate balance of the separation of power.

Hamilton, 74 F.3d at 1566 (McMillian, J., dissenting).


There is nothing ambiguous about RFRA’s separation of powers violation. This Court’s statement of the free exercise standard in Smith was stated in plain terms. And Congress’s act of overriding that standard is [43]  unmistakable in the title, the plain language of the Act, and in its legislative history. 5 Never before has the Court’s constitutional preserve of power been compromised to this extent. RFRA is nothing short of a hostile takeover of this Court’s constitutionally appointed role in free exercise cases.

Without a doubt, religious liberty is at the heart of this country’s experiment with democracy. This Court stated in Smith that governments could and would accommodate religion with specific exemptions from generally applicable laws. See Smith, 494 U.S. at 890 (“Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process. . . . [A] society that believes in the negative protection accorded to religious belief [44]  can be expected to be solicitous of that value in its legislation as well.”). But the power of accommodation does not make any and every congressional foray into the free exercise preserve safe from constitutional error. However Congress may act to protect religious liberty, it must not be permitted to enter this deeply important arena by undermining the courts’ authority to interpret the Constitution.

To restore the balance of power between Congress and the Court intended by the Framers to ensure liberty, the Religious Freedom Restoration Act must be struck down. 6



Section 5 of the Fourteenth Amendment states: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” U.S. Const. amend. XIV, § 5. “This article,” is the Fourteenth Amendment, which provides a set of constitutional guarantees against the states. By the plain language of Section 5, Congress may enforce only constitutional guarantees contemplated by the Fourteenth Amendment. 7 There is not the least intimation that Congress has the power to enforce its policy predilections beyond constitutional guarantees. See City of Rome, 446 U.S. at 206 (Rehnquist, J., dissenting); Mitchell, 400 U.S. at 152 (Harlan, J., concurring in part and dissenting in part). Congress’s attempt with RFRA to force state and local governments to accommodate religious conduct more than this Court has said the Constitution requires runs headlong over a dangerous precipice. 8 A decision to uphold RFRA would overruleThe Civil Rights Cases, 109 U.S. 3, 11 (1883), which were decided in the [46]  same era as the passage of the Fourteenth Amendment, and in which the Court stated that Section 5 “invests Congress with power to enforce it by appropriate legislation. To enforce what? To enforce the prohibition [found in the Fourteenth Amendment] . . .”


The Religious Freedom Restoration Act “does not [48]  profess to be corrective of any constitutional wrong committed by the States; it does not make its operation to depend upon any such wrong committed.” The Civil Rights Cases, 109 U.S. at 11. Indeed, the Act makes no pretense to enforce only the constitutional guarantees against specifically targeted legislation recognized as unconstitutional in Smith and redressed in Lukumi. Smith, 494 U.S. at 872;Lukumi, 508 U.S. at 520. Rather, the Act was intended to prohibit all substantial burdens on “a person’s exercise of religion even if the burden results from a rule of general applicabilty . . . .” 42 U.S.C. § 2000bb-1(a), Cert. Pet. App. at 40a. See also 42 U.S.C. § 2000bb(a)(4), Cert. Pet. App. at 39a (stating that Smith “eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion . . . .”); H.R. Rep. No. 88, 103d Cong., 1st Sess. 1239 (1993) (“The test applies whenever a law or an action taken by the government to implement a law burdens a person’s exercise of religion.”). The purpose of the Act is to supplant Smith, not to reinforce [49]  it. Thus, RFRA directs courts to enforce wholly extra-constitutional “rights,” moving it well beyond the preserve of Section 5 power.

A.  RFRA Is Unlike Any Other Statute

The various Section 5 arguments of RFRA’s defenders boil down to one claim: the Court has upheld similar statutes before. That is, emphatically, untrue for two reasons.

First, and without a doubt, the Religious Freedom Restoration Act is in a class by itself. This is the first time Congress has attempted to preempt this Court’s declared standard of review. Never before has Congress attempted to take the reins from the Court over a clause of the First Amendment, or, for that matter, over any clause of the Constitution.

The only congressional action that bears a surface resemblance to RFRA’s blatant attempt to trump this Court’s constitutional determination is the Human Life Bill, which was intended to overrule Roe v. Wade, 410 U.S. 113 (1973). See The Human Life Bill, S. 158, 97th Cong., 1st Sess. (1981). That bill faltered in part because of concerns raised about the constitutionality of Congress overruling a decision by the Supreme Court. Senator Orrin Hatch, one of its primary sponsors,  [50]  refused to vote in favor of the Bill on the grounds that it overturned this Court’s decision in Roe v. Wade, and therefore exceeded congressional authority under Section 5 of the Fourteenth Amendment. Staff of Subcomm. on Separation of Powers of Senate Comm. on the Judiciary, 97th Cong., 1st Sess., Report on Human Life Bill, S. 158, together with additional and minority views 35 (Comm. Print 1981). RFRA, with its broad sweep, strays into the judiciary’s terrain even more than the Human Life Bill, which affected only one issue — abortion — within the Court’s privacy doctrine. RFRA stands by itself.

Second, the cases on which RFRA’s defenders rely simply do not hold that Congress may reverse a Supreme Court decision by altering the standard of review in any, let alone all, cases.

B.  RFRA Is Inconsistent With the Enumerated Power Requirement Announced in M’Culloch v. Maryland

The test for determining whether a statute is consistent with the enumerated power requirement was announced by this Court in M’Culloch, 17 U.S. (4 Wheat.) at 421:

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which [51]  are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

See also Ex Parte Virginia, 100 U.S. (10 Otto) 339 (1879). The Religious Freedom Restoration Act fails all three prongs of the M’Culloch test applied by the Fifth Circuit.


1.  The Religious Freedom Restoration Act Is Not Within the Scope of the Constitution

The Fifth Circuit erred in its holding that RFRA enforces guarantees to be found in the Fourteenth Amendment. The court of appeals’ error lies in its failure to grasp this Court’s free exercise doctrine. The court of appeals employs RFRA as its benchmark for constitutional protection, assuming that all substantial burdens on the exercise of religion automatically trigger constitutional protection. Flores, 73 F.3d at 1355. That view, however, is plainly rejected by this Court in Smith and Lukumi. See Smith, 494 U.S. at 881;Lukumi, 508 U.S. at 531. Neutral, generally applicable laws that incidentally burden religious exercise do not trigger close judicial review in free exercise cases. As Justice Scalia stated in his concurrence [52]  in Lukumi:

The terms “neutrality” and “general applicability” are not to be found within the First Amendment itself, of course, but are used in Employment Div., Dept. of Human Resources of Oregon v. Smith, and earlier cases to describe those characteristics which cause a law that prohibits an activity a particular individual wishes to engage in for religious reasons nonetheless not to constitute a “law . . . prohibiting the free exercise” of religion within the meaning of the First Amendment.

508 U.S. at 557 (Scalia, J., concurring in part and concurring in the judgment).


The guarantee against all substantial burdens on religious exercise is located in a congressional enactment, RFRA, not a constitutional source. As such, RFRA is not “within the scope of the constitution.” M’Culloch, 17 U.S. (4 Wheat) at 421.

2.  The Religious Freedom Restoration Act Is Not Plainly Adapted to Achieve Constitutional Ends

Nor is RFRA “plainly adapted to” constitutional ends. As the preceding discussion makes clear, RFRA is designed to fill in a perceived gap in free exercise protection left open by Smith, not to enforce rights guaranteed by the Constitution.  [53]  The Fifth Circuit found this prong satisfied on the basis of this Court’s decisions in Katzenbach v. Morgan, 384 U.S. 641 (1966), and City of Rome v. United States, 446 U.S. 156 (1980), holding that Congress properly exercised its remedial power under Section 5 when it enacted RFRA. Flores, 73 F.3d at 1356-57. The remedial power found in these cases, however, does not justify RFRA.

Defenders of RFRA have also posited that RFRA is “plainly adapted to” constitutional ends because Section 5 gives Congress the power to expand the substantive scope of constitutional guarantees. This is the substantive power theory. The following discussion of Congress’s Section 5 power will first address the remedial power theory and then the substantive power theory.

a. The Remedial Power Theory. Congress offered no basis for the exercise of its power in RFRA other than Section 5, specifically citing the Voting Rights Act cases. 9 Section 5 gives Congress the power to “enforce” or remedy, constitutional guarantees secured by the Fourteenth Amendment. Congress missed the mark. The Voting Rights Act cases simply do not stand for the proposition that Congress may [54]  “remedy” potential constitutional violations by altering the standard of review in all cases raising a particular constitutional issue.

i. The Voting Rights Act Cases Do Not Support RFRA. The Voting Rights Act cases read Section 5’s remedial power to permit Congress, when employing the Supreme Court’s previously announced standard, and on the basis of its superior factfinding capacity, to reach a conclusion under that standard at odds with Supreme Court determinations under the same standard. Under the Court’s broadest reading of the remedial power, Congress has been permitted to enact prophylactic legislation that bans actions not forbidden by the Constitution for the purpose of enforcing constitutional guarantees. RFRA treats that prophylactic power as a warrant to enforce ends not guaranteed by the Constitution and therefore exceeds Section 5. The Civil Rights Cases, 109 U.S. at 19.

This Court’s decision in Katzenbach v. Morgan, 384 U.S. 641 (1966), [55]  involved Section 4(e) of the Voting Rights Act of 1965, which provides that persons who have received a primary education in Puerto Rico cannot be denied the right to vote. Id. The federal law was in direct conflict with New York’s law requiring English literacy as a condition to vote, a law that was presumably not unconstitutional “on its face” under Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 54 (1959). Section 4(e) was challenged by New York State as beyond Congress’s Section 5 power and in derogation of the Tenth Amendment. This Court upheld Section 4(e) as an exercise of Congress’s power to remedy Equal Protection violations, stating that “§ 5 is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment.” Morgan, 384 U.S. at 651 (emphasis added). See also id. at 652 (quoting Section 4(e) purpose “to secure the rights under the fourteenth amendment”). This Court left to Congress the power “to assess and weigh the various conflicting considerations,” in determining whether constitutional [56]  guarantees were being infringed. Id. at 653.

The Court in Morgan did not hand Congress carte blanche to overrule Supreme Court declarations of the appropriate standard of review in constitutional cases. Rather it stated that its decision in Lassiter was “inapposite,” Morgan, 384 U.S. at 649, when Congress is engaging its factfinding capacities to protect Equal Protection guarantees. RFRA, of course, protects extra-constitutional interests and therefore exceeds congressional authority. The Civil Rights Cases, 109 U.S. at 11.

In City of Rome, in addressing the reach of Congress’s power under Section 2 of the Fifteenth Amendment, the Court held, as in Morgan, that Congress could reach a factual conclusion at odds with a prior Supreme Court case. This Court upheld the Voting Rights Act’s ban on electoral changes discriminating in effect, even though Section 1 of the Amendment only prohibited intentional discrimination. City of Rome, 446 U.S. at 177. Congress rationally concluded that there existed significant risk of purposeful discrimination that justified the enactment of a marginally overbroad remedy. Id. at 173-78. [57]  Once again, in the context of a detailed statute addressing the specifics of voting practices, the Court expressed its willingness to permit Congress to cure a particular constitutional evil with means deduced from a factual record indicating a link between the congressional remedy and a constitutional guarantee. Id. at 179. RFRA bears no corresponding correlation. It is hardly a detailed plan to cure a particular constitutional evil; it is based on the thinnest of factfinding records, especially when compared to its broad sweep; and it is aimed plainly at extra-constitutional evils.

Neither Morgan nor City of Rome provides precedent that supports the extraordinary exercise of power found in RFRA. 10 Even in the Court’s most expansive Section 5 cases, the remedial power has been limited to the exercise of superior factfinding skills in the context of applying the Court’s designated standard for constitutional violations. This Section 5 doctrine in no way creates a haven for RFRA’s bald rejection of the Court’s interpretation of the Free Exercise Clause of the First Amendment in all cases.


ii. Congress Made No Factfindings in Passing RFRA That Would Support Its Extreme Overenforcement of Religious Interests. Apparently, even Congress did not believe RFRA could be justified as an exercise of Congress’s remedial power. Despite being urged by Professor Laycock to do so, see Religious Freedom Restoration Act of 1991: Hearings on H.R. 2797 Before the Subcomm. on Civil and Constitutional Rights of the Committee on the Judiciary, House of Representatives, 102d Cong., 2d Sess. 357-58, 398 (1992), Congress engaged in no meaningful factfinding that would support the need for a congressional remedy in the free exercise arena. Indeed, Congress’s express “Findings” in the Act speak to its dissatisfaction with Smith, not the state of religious liberty in the United States. 42 U.S.C. § 2000bb, Cert. Pet. App. at 39a.

Congress simply did not ask what effect RFRA would have on the thousands, if not millions, of regulations that would be affected by RFRA, for example, regulations governing emergency medical care of children in imminent danger of dying or sustaining permanent disability, childhood immunization requirements, child support payments, state-mandated [59]  autopsies, school safety laws governing the carrying of dangerous weapons, bankruptcy proceedings involving churches, the removal of Native American remains from church grounds, and every aspect of land use law. See, e.g., Cheema v. Thompson, 67 F.3d 883 (9th Cir. 1995) (holding that Sikh school-children must be permitted to carry knives in violation of school rule against the carrying of dangerous weapons).

“The enactment of RFRA can in no sense be said to involve the ‘specially informed legislative competence’ of Congress.” Keeler v. Mayor & City of Council of Cumberland, 928 F. Supp. 591, 603 (D. Md. 1996). In fact, “Congress abdicated its responsibility to investigate the particular state action which might have the potential of unconstitutionally burdening the free exercise of religion . . . .” Hamilton, 74 F.3d at 1567 (McMillian, J., dissenting).

Under the prophylactic theory of Morgan’s first rationale, this Court has not upheld congressional action that overenforces constitutional guarantees against the states in the absence of a history of the states’ unwillingness to comply with the constitutional standard. What “Congress has done [60]  through RFRA’s passage under the banner of § 5 is dramatically different from its exercise of § 5 power in Morgan or in any other case to date.” Hamilton, 74 F.3d at 1568 (McMillian, J., dissenting). Unlike the Voting Rights Act, the Religious Freedom Restoration Act was not necessitated by a refusal by state and local governments to abide by the Constitution, thereby requiring prophylactic legislation. See Sasnett v. Sullivan, 91 F.3d 1018, 1021 (7th Cir. 1996)(“We are given some pause . . . by the lack of a recent history of governmental discrimination against religious observance. . . . It is not easy to take entirely seriously the proposition that the enactment of RFRA was necessary in order to prevent the states from engaging in forms of intentional discrimination that, unlike the ordinance invalidated in Church of the Lukumi Babalu Aye, could not readily be shown to be intentional.”). The thin record supporting RFRA is in sharp contrast to this Court’s description of the record on which the Voting Rights Act was based:

Two points emerge vividly from the voluminous legislative history of the [Voting Rights] Act contained in the committee [61]  hearings and floor debates. First: Congress felt itself confronted by an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution. Second: Congress concluded that the unsuccessful remedies which it had prescribed in the past would have to be replaced by sterner and more elaborate measures in order to satisfy the clear commands of the Fifteenth Amendment.

South Carolina v. Katzenbach, 383 U.S. 301, 309 (1966). See also Shaw v. Reno, 509 U.S. 630, 640 (1993);City of Rome, 446 U.S. at 182;Gaston County, N.C. v. United States, 395 U.S. 285, 291 (1969). The RFRA legislative history is replete with denigrations of Smith but only sporadically dotted with a limited number of anecdotal reports of religious suppression. This Act invites this Court to charge Congress with the responsibility of building a record in overenforcement cases which would clarify, “streamline — and sharpen — the judicial task of reviewing federal legislation” under Section 5. Harold J. Krent, Turning Congress Into an Agency: The Propriety of Requiring Legislative [62]  Findings, 46 Case W. Res. L. Rev. 731, 737 n.20 (1996).


In conclusion, RFRA is not a constitutionally legitimate prophylactic measure; rather, it is an unjustified and abusive exercise of Congress’s remedial power under Section 5. See Hamilton, 74 F.3d at 1570 (McMillian, J., dissenting) (“This is not prophylaxis but unconstitutional interbranch hegemony.”).

b. The Substantive Power Theory. To be completely fair to those who passed RFRA in reliance onKatzenbach v. Morgan, 384 U.S. 641 (1966), and to those who continue to defend RFRA under Morgan, language in that decision implies a congressional power to expand the scope of constitutional guarantees:

[Section] 5 does not grant Congress power to exercise discretion in the other direction and to enact “statutes so as in effect to dilute equal protection and due process decisions of this Court.” We emphasize that Congress’ power under § 5 is limited to adopting measures to enforce the guarantees of the Amendment; § 5 grants Congress no power to restrict, abrogate, or dilute these guarantees.

Morgan, 384 U.S. at 651 n.10. This overreading of Morgan has been [63]  pervasive in the legal academy, and has misled the lower courts into upholding RFRA. See, e.g., Belgard v. State of Hawai’i, 883 F. Supp. 510, 513 (D. Haw. 1995).


Yet, the substantive power theory has never been the dispositive basis for a decision by this Court. Even in Morgan, it was only an alternative ground for decision. Morgan, 384 U.S. at 652-53 (justifying statute as exercise of remedial power under Section 5). See also Daniel O. Conkle, The Religious Freedom Restoration Act: The Constitutional Significance of an Unconstitutional Statute, 56 Mont. L. Rev. 39, 51-52 (1995). As then-Justice Rehnquist has pointed out, five members of this Court rejected the substantive power theory in the later-decided case of Oregon v. Mitchell, 400 U.S. 112 (1970), see City of Rome, 446 U.S. at 220-21 (Rehnquist, J., dissenting), while only four members were in favor of the theory. Mitchell, 400 U.S. at 239-81 (Brennan, J., dissenting); id. at 135-44 (Douglas, J., dissenting). See also EEOC v. Wyoming, 460 U.S. 226, 262 (1983)(Burger, C.J., dissenting) (“I have always read Oregon v. Mitchell as finally [64]  imposing a limitation on the extent to which Congress may substitute its own judgment for that of the states and assume this Court’s ‘role of final arbiter’ . . .”).

This Court has in fact rejected the substantive power theory in the context of the Fifteenth Amendment, the enforcement language of which is almost identical to Section 5. Congress has been found to have exceeded its Fifteenth Amendment enforcement powers when “Congress has attacked evils not comprehended by the Fifteenth Amendment.” South Carolina v. Katzenbach, 383 U.S. 301, 326 (1966) (citing United States v. Reese, 92 U.S. (2 Otto) 214, 217-18 (1875);James v. Bowman, 190 U.S. 127, 138 (1903)).

The substantive power theory hands Congress a power at odds with the separation of powers, and it permits Congress to yoke the states to its policy predilections in violation of the federalism constraints inherent in Section 5. The great Justice Harlan dissented in Morgan, because he believed that Congress must not be permitted to re-define the scope of constitutional guarantees. Legislation like the Religious Freedom Restoration Act can only be “sustained . . . at the sacrifice of [65]  fundamentals in the American constitutional system — the separation between the legislative and judicial function and the boundaries between federal and state political authority.” Morgan, 384 U.S. at 659 (Harlan, J., dissenting). He reaffirmed his commitment to these principles when he joined four other members of this Court to hold in Mitchell that Congress lacked the power to determine that the voting age in state elections ought to be 18 rather than 21. See Mitchell, 400 U.S. at 204-07 (Harlan, J., concurring in part and dissenting in part); id. at 296 (Stewart, J., joined by Burger, C.J., and Blackmun, J., concurring in part and dissenting in part); id. at 124-30 (Black, J.).

These essential truths were echoed by then-Justice Rehnquist in dissent in City of Rome when he stated that Congress’s attempt to override the Supreme Court’s interpretation of the Constitution under the Fourteenth Amendment “requires state and local governments to cede far more of their powers to the Federal Government than the Civil War Amendments ever envisioned; and it requires the judiciary to cede far more of its power to interpret and enforce the Constitution than ever [66]  envisioned.” City of Rome, 446 U.S. at 221 (Rehnquist, J., dissenting). See also id. at 207, 210-13, 220-221.

Although the Court did not reach the Section 5 issue in EEOC v. Wyoming, 460 U.S. 226 (1983),four members of this Court — Chief Justice Burger and Justices Powell, Rehnquist, and O’Connor — went to great lengths to reject the notion that Congress may “define rights wholly independently of [this Court’s] case law . . . .” Wyoming, 460 U.S. at 262 (Burger, C.J., dissenting). To the contrary, “allowing Congress to protect constitutional rights statutorily that it has independently defined fundamentally alters our scheme of government.” Id.

The Religious Freedom Restoration Act makes real what Justice Harlan only imagined when he dissented in Morgan:

To deny the effectiveness of [the Voting Rights Act] is not of course to disparage Congress’ exertion of authority in the field of civil rights; it is simply to recognize that the Legislative Branch like the other branches of federal authority is subject to the governmental boundaries set by the Constitution. To hold, on this record, that [the Act] overrides [67]  the New York [law] seems to me tantamount to allowing the Fourteenth Amendment to swallow the State’s constitutionally ordained primary authority in this field. For if Congress by what, as here, amounts to mere ipse dixit can set the otherwise permissible requirement partially at naught I see no reason why it could not also substitute its judgment for that of the States in other fields of their exclusive primary competence as well.

Morgan, 384 U.S. at 671. With RFRA, Congress has fulfilled Justice Harlan’s hoped-against prophecy to the nth degree. It is ipse dixit that blankets every field of state competence. The passage of RFRA invites this Court to set to rest, once and for all, the troublesome and constitutionally misguided notion that Congress has plenary power to interpret the Constitution at odds with this Court’s interpretation and to force that interpretation on the courts. 11



Finally, even if this Court were to read Morgan as relying on a substantive power theory, the purported alteration of the constitutional calculus in that case, and in City of Rome, is mere tinkering compared with the broad-brush attack on the Court’s constitutional doctrine in RFRA. By upholding RFRA on a substantive power theory, the Court would be vastly expanding the power of Congress even beyond that arguably contemplated in Morgan and City of Rome.

In sum, the Religious Freedom Restoration Act is not plainly adapted to constitutional ends and therefore fails the second prong of the M’Culloch test. RFRA was not enacted pursuant to a legitimate exercise of Congress’s remedial power, and the substantive power theory deserves to be definitively interred by this Court at this time.

3.  The Religious Freedom Restoration Act Is Prohibited by and Inconsistent with the Letter and Spirit of the Federalism Constraints Inherent in Section 5

The M’Culloch test finally requires congressional action “which [is] not prohibited, but consistent with the letter and spirit of the constitution . . . .” M’Culloch, 17 U.S. at 421. Because the Act violates the separation of [69]  powers, see supra sec. I, federalism principles inherent in Section 5, see infra, and the Establishment Clause, see infra sec. III, it fails the final M’Culloch prong.

The Religious Freedom Restoration Act is a bold and unprecedented example of federal social policy engineering that commandeers the states to follow the federal government’s decision to accommodate religion more than the Constitution requires. RFRA intrudes on the sovereign power of the states. See New York, 505 U.S. at 155-57. Congress is a body of enumerated powers, and it must respect state integrity in that exercise. Seminole Tribe of Fla. v. Florida, 116 S. Ct. 1114, 1127, 1132 (1996); Lopez, 115 S. Ct. at 1626; New York, 505 U.S. at 156-57; Gregory v. Ashcroft, 501 U.S. 452, 457-59 (1991). As this Court stated in New York, “‘the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government.'” New York, 505 U.S. at 162 (quoting Texas v. White, 7 Wall. 700, 725 (1869)).

Congress [70]  may not ignore principles of federalism when it exercises its Section 5 powers. Rather, federalism principles provide innate limitations on the exercise of such power. As this Court declared in New York, 505 U.S. at 159, per Justice O’Connor:

Just as a cup may be half empty or half full, it makes no difference whether one views the question at issue in this case as one of ascertaining the limits of the power delegated to the Federal Government under the affirmative provisions of the Constitution or of discerning the core of sovereignty retained by the States under the Tenth Amendment. Either way, we must determine whether [the Act] . . . oversteps the boundary between federal and state authority.

One year earlier, this Court stated in Gregory that “the Fourteenth Amendment does not override all principles of federalism.” Gregory, 501 U.S. at 469. The history of the Fourteenth Amendment makes it abundantly clear that “its framers rejected the option of an open-ended grant of power to Congress to meddle with conditions within the states so as to render them equal in accordance with its own notions.” Alexander Bickel, The Voting Rights Act [71]  Cases, 1966 Sup. Ct. Rev. 79, 97.


This case, which involves quintessentially local prerogatives over land use, illustrates vividly the incursion RFRA makes on federalism concerns. Laws governing land use, and in particular historical preservation, are of intense local concern. “Respect for local landmark law is founded on principles of federalism.” Raphael Winick, Copyright Protection for Architecture After the Architectural Works Copyright Protection Act of 1990, 41 Duke L.J. 1598, 1624 (1992). Thus, the enforcement of historic preservation law has been a matter left almost entirely to state and local governments, with supporting legislation from the federal government. See Penn Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978). See generally, Jane Papademetriou Kourtis, Comment, The Constructive Trust: Equity’s Answer to the Need for a Strong Deterrent to the Destruction of Historic Landmarks, 16 B.C. Envtl. Aff. L. Rev. 793, 798-804 (1989).

History in and of itself is a commodity of compelling importance to a community. It educates, it comforts, and it solidifies a community’s shared sense of itself. Francis Bacon said [72]  truly that “histories make men wise.” The Essays Or, Counsels, Civil and Moral of Francis Bacon, Of Studies 14 (1883). This Court has recognized the educative value of history, stating that “a page of history is worth a volume of logic.” New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921)(Holmes, J.).

The Court’s “cases are quite clear that there are real limits to federal power.” Lopez, 115 S. Ct. at 1642 (Thomas, J., concurring). See also Gregory v. Ashcroft, 501 U.S. 452 (1991). Those limits are transgressed by RFRA. Tests of compelling interest and least restrictive means dramatically skew the balance of power between local governments and churches on land use issues, including historical preservation, to the detriment of this traditional area of local autonomy. See Cert. Pet. at 6-7. In the end, RFRA tips “the scales too far” in favor of the federal government and in derogation of the states. See Lopez, 115 S. Ct. at 1639 (Kennedy, J., concurring); Gregory, 501 U.S. at 467-70 (holding that absent a plain statement, congressional legislation under Section 5 will not be interpreted to reach certain state political [73]  functions); id. at 469; Pennhurst State School v. Halderman, 451 U.S. 1, 16 (1981) (“Because [legislation under Section 5] imposes congressional policy on a State involuntarily, and because it often intrudes on traditional state authority, we should not quickly attribute to Congress an unstated intent to act under its authority to enforce the Fourteenth Amendment.”); Wyoming, 460 U.S. at 259 (Burger, C.J., dissenting) (“The Tenth Amendment was not, after all, repealed when the Fourteenth Amendment was ratified: it was merely limited.”).

Congress has done in RFRA what — in our constitutional scheme — only the states may do themselves. Without question, the states voluntarily could protect religious liberty more robustly than the Federal Constitution through their own constitutions or through legislative action. See William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977); Angella C. Carmella, State Constitutional Protection of Religious Exercise: An Emerging Post-Smith Jurisprudence, 1993 B.Y.U. L. Rev. 275; Wisconsin v. Miller, 549 N.W.2d 235, 239-41 (Wis. 1996); [74]  Southern Burlington County NAACP v. Township of Mount Laurel, 336 A.2d 713, 725 (N.J. 1975). But Congress may not curtail state and local government lawmaking by forcing the states to observe a higher standard of religious liberty than the Court has deemed the Constitution requires. New York, 505, U.S. at 161-65; Wyoming, 460 U.S. at 259-63 (Burger, C.J., dissenting).

The Religious Freedom Restoration Act violates the principles of federalism reflected in the Tenth Amendment and operating as an inherent constitutional limitation on the exercise of Section 5 authority against the states.


The Establishment Clause of the First Amendment states: “Congress shall make no law respecting an establishment of religion.” U.S. Const. amend. I, cl. 1. The purpose of the Establishment Clause, which is specifically addressed to Congress, is to prevent the union of Congress with organized religions. Such a union is the definition of tyranny. ” For fourteen hundred years, tyranny presented a united front, thereby forcing those who would declare their independence to fight a revolution [75]  to resist all tyranny, whether of church or of state, for in the final analysis all tyranny was one.” Edwin S. Gaustad, A Religious History of America 115 (1990). In James Madison’s words, “The connection of Church and State was fatal to the liberty of both.” Adrienne Koch, Madison’s “Advice to My Country” 27 (1966).

This Court announced its test to be applied in Establishment Clause cases in Lemon v. Kurtzman: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, . . . finally, the statute must not foster ‘an excessive government entanglement with religion.'” Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (quoting Walz v. Tax Comm’n of the City of New York, 397 U.S. 664, 674 (1970)). This test is not satisfied by RFRA. See Scott C. Idleman, The Religious Freedom Restoration Act: Pushing the Limits of Legislative Power, 73 Tex. L. Rev. 247, 285-302 (1994).

There is no secular purpose in RFRA. The plain purpose is to provide statutory protection for all substantial burdens on religion, whether constitutionally protected or not. Unlike the [76]  type of narrowly tailored accommodation of religion contemplated by the Court in Smith, 494 U.S. 872 (1990), and occasionally permitted under the First Amendment, RFRA establishes an across-the-board scheme that deliberately singles out religious practices, en masse, as a congressionally favored class of activity. Congress has proffered no secular rationale — just as it has offered no factual findings — as to why such across-the-board special treatment is necessary to correct specific constitutional wrongs.

There is certainly no neutral effect. Churches have now become privileged members of every community, federal, state, or local, on every issue. The sheer breadth and substantive strength of RFRA necessarily “advance” religion, both in absolute terms and in relation to functionally comparable nonreligious forms of belief and practice. The entire purpose of the statute, after all, is to establish a new balance — a new equilibrium — between religion and government, entirely different from the baseline of neutrality contemplated by the Court in Smith.

The Act miserably fails the entanglement prong by forcing every government to become expert on every religion. There [77]  is now necessary entanglement every time a community seeks to enact a law, for it must investigate whether the law will be the means of accomplishing its goal that is the least restrictive of every religion’s requirements. That cannot be done without extensive investigation into the theological requirements of every relevant religion. City Councils are encouraged now to have on file detailed descriptions of every religion present and likely to be present in their communities so that they can know whether each law is narrowly tailored for every religion. Unlike the procedure envisioned by this Court in Smith where a city must act neutrally and in a generally applicable way and then may consider specific requests for accommodation that are raised after passage, Smith, 494 U.S. at 890, RFRA places cities in the position of considering every potential religious objection to every ordinance, from the perspective of each religious believer. The Religious Freedom Restoration Act both entangles and strangles local lawmaking capacity.

In Lee v. Weisman, 505 U.S. 577, 587 (1992), this Court held that government may not endorse the message of a particular religion.  [78]  RFRA endorses a global message: the government likes religion. This message violates the fundamental constitutional requirement of neutrality on issues of conscience. See Board of Educ. of Kiryas Joel v. Grumet, 512 U.S. 687, 114 S. Ct. 2481, 2487 (1994); Lee v. Weisman, 505 U.S. 577 610-11 (1992) (Souter, J., concurring); Christopher L. Eisgruber & Lawrence G. Sager, Why the Religious Freedom Restoration Act is Unconstitutional,69 N.Y.U. L. Rev. 437, 444 (1994). Congress may not favor religion over nonreligion or religion over philosophy. As this Court stated in Wooley v. Maynard, 430 U.S. 705, 715 (1977), laws may not “‘invade the sphere of intellect and spirit which . . . [is] reserved from all official control.'” (quoting West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)). See also Lawson v. Singletary, 85 F.3d 502, 506 n.2 (11th Cir. 1996). In sum, by entangling religion and government and by privileging religion, RFRA violates the Establishment Clause.


The Religious Freedom Restoration Act is different from any other act Congress has ever passed. Never before [79]  has Congress attempted to define for itself the core meaning of a clause of the Constitution and then to force that interpretation on the courts in every case raising the constitutional issue.

This Act is unconstitutional because it goes too far. With RFRA, Congress has wrested from this Court its core judicial function of finally interpreting the meaning of the Constitution, has trespassed against the states by requiring them to accommodate religious conduct more than the Constitution requires, and has forced all governments to become entangled in the theological tenets of every religion. Whatever the merits of Congress’s objection to the Smith decision, it cannot “fix” religious liberty in flagrant disregard of settled principles of separation of powers, federalism, and church-state relations. Although the Court owes Congress deference as a coordinate branch, the obvious constitutional evils of this statute dictate that it be struck down.

This Court should declare the Religious Freedom Restoration Act unconstitutional, reverse the judgment below, and remand the case to the district court for further proceedings consistent with this Court’s decision.

Respectfully submitted,  [80]

Marci A. Hamilton, Esq., 482 Kings Road, Yardley, Pennsylvania 19067, (215) 493-1973, Counsel of Record

Lowell F. Denton, Esq., DENTON, McKAMIE & NAVARRO, 1700 Tower Life Building, 310 South St. Mary’s Street, San Antonio, Texas 78205, (210) 227-3243

Gordon L. Hollon, Esq., 101 N. Saunders, Boerne, Texas 78006, (210) 249-2521, Attorneys for Petitioner, City of Boerne, Texas

Dated: November 29, 1996


10 J.L. & Religion 367
Journal of Law and Religion
Ellis M. Westa1
Copyright (c) 1994 by the Hamline University; Ellis M. West
One of the more controversial decisions handed down by the Supreme Court in recent years was its decision in the case of Employment Division, Oregon v. Smith,1 which raised the basic issue of whether the free exercise clause of the First Amendment2 guarantees a right to religion-based exemptions, i.e., whether it gives persons and groups a prima facie right to be exempt from having to obey valid laws when they have religious reasons for noncompliance. More specifically, in Smith, two Native Americans claimed that their prosecution for using an illegal drug, peyote, was precluded by the free exercise clause because they had taken the drug as part of a religious ceremony of their church.3
To the surprise of many,4 the Supreme Court rejected both the Native Americans’ claim (by a vote of six to three) and the general proposition that the free exercise clause gives persons a right to religion-based exemptions(by five to four).5 Writing for the Court, Justice Scalia said, “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise *368 valid law prohibiting conduct that the State is free to regulate.”6 Moreover, in order to preclude such a holding in the future, the Court discarded the “strict scrutiny” test, adopted in its 1963 Sherbert v. Verner decision7 according to which any burden on any religious practice imposed by any law, even one that is religion-neutral and generally applicable, is unconstitutional unless it can be justified by a “compelling” government interest and is the least restrictive means of protecting that interest.8 The Court said that the free exercise clause requires only that laws be religion-neutral and generally applicable. It added, however, that although courts were not required to, legislatures were free to grant religion-basedexemptions from valid, secular laws as a way of alleviating incidental burdens on the exercise of religion.9Because of the Smith decision, governments can now regulate and even criminalize practices that some persons or groups consider to be religious in nature, provided it does so through a law that is constitutional and that is applied to all instances of the practice, secular as well as religious.
The Smith decision was met with a great deal of strident criticism by most spokespersons for religion and churches and by some constitutional law scholars.10 The decision also had the effect of galvanizing just about all the religious organizations and religious *369 liberty groups in this country toward an effort for reversal either by the Supreme Court or by Congress.11 As of now, they have not been successful in getting the Court to overruleSmith, and, in fact, in its most important free exercise case since Smith, the Court refused to overturn its prior holding that the free exercise clause does not guarantee a right to religion-based exemptions.12
On the other hand, Congress has responded to the pressures exerted on it to do something about the Smithdecision. It passed the “Religious Freedom Restoration Act of 1993” (RFRA).13 The key part of RFRA states that government may restrict the free exercise of religion only if it can show that the restriction “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”14 In short, Congress has legislatively mandated the “strict scrutiny” test that the Supreme Court discarded in Smith. In the future, therefore, claims for religion-based exemptions will most likely be based on this Act, rather than on the free exercise clause of the First Amendment. Whether it will significantly increase the freedom of religious persons and groups to disobey valid laws remains to be seen, however.15
One of the most frequently made arguments against the Smith decision is that it is inconsistent with the true meaning of the free exercise clause. Persons who make such an argument often resort to a literal interpretation of the words of the free exercise clause. They assume that the word “exercise” refers to “action,” “practice,” or “application” and that the word “free” means “without legal restraint.”16 Using such a literal interpretation of the free exercise clause, they naturally think that the clause is violated, at least presumptively, by any law whose application imposes any burden on any conduct that any person deems to be part of her/her *370 religion–even if the law itself and its application to persons generally are unquestionably constitutional. Douglas Laycock, for example, writes, “The free exercise clause . . . is an express substantive protection for certain conduct, for religious exercise,”17 and argues that “on its face” the law involved in the Smith case “would seem to be a ‘law prohibiting the free exercise [of religion]’ . . . . ”18
Most of those who defend a right to religion-based exemptions rely on more than the wording of the First Amendment. They also argue that it was the intention of the framers of the First Amendment to create a right toreligion-based exemptions. Donald Giannella, for example, says that “the historic purpose of the free exercise clause” was to create a right to religion-based exemptions from such laws as a general ban on the consumption of alcohol.19 Similarly it has been claimed that “the first amendment was intended to protect freedom of conscience, and that conscientious objection to war was a well recognized, time honored expression of such conscience.”20
In either case, i.e., whether they are based on the text or on the original intent of the free exercise clause, the arguments for a constitutional right to religion-based exemptions are wrong–my opinion. Those who rely on the text of the First Amendment fail to realize that their understanding of the phrase “free exercise of religion” is not the understanding that was held by those early Americans who used the phrase and fought for its inclusion in the constitutions of that age. Their reliance on the wording of the First Amendment is, in fact, a classic example of how a literal reading of a constitutional or other legal text can be completely misleading because the meaning of words and phrases changes over time.21 Thus, an examination of the historical record clearly indicates that in eighteenth-century America the phrase “free exercise of religion” *371 stood for religious freedom in general and was used primarily to attack laws and policies associated with traditional establishments of religion, including those that authorized public financing of religion.22 Although this fact, by itself, does not preclude the possibility that the phrase “free exercise of religion” was originally meant also to guarantee a right to religion-basedexemptions, it does demonstrate that one cannot say on the basis of its wording alone that the free exercise clause guarantees a right to such exemptions, for a literal interpretation of that clause leads to a meaning that is far narrower than and different from the meaning originally imputed to those words.
Likewise, those who rely on the intentions of the founders to justify the argument for a right to religion-basedexemptions can find very little historical evidence to substantiate their claim.23 To the extent that there is historical evidence bearing on the issue, most scholars who have examined it have concluded that the free exercise clause was not intended to guarantee a right to religion-based exemptions.24 To my knowledge, only one study of any length–a 1990 article in the Harvard Law Review by the law professor, Michael McConnell25–comes close to arguing the contrary, and its conclusion is guarded and qualified: “[C]onstitutionally compelledexemptions were within the contemplation of the framers and ratifiers as a possible interpretation of the free exercise clause . . . . While the historical evidence may not be unequivocal (it seldom is), it does, on balance, support Sherbert’s interpretation of *372 the free exercise clause.”26 At about the same time, McConnell also wrote elsewhere that “the Court [in Smith] could have said that there are two constitutional traditions, both with impressive pedigrees, and that persons of common sense and good will have come down on both sides of the question.”27 Moreover, McConnell’s evidence and reasoning have been sharply criticized.28 In spite of its cautious and questionable conclusion, most critics of the Smith decision cite McConnell’s article for the proposition that that decision is inconsistent with the original meaning of the free exercise clause.29
In any case, because so many persons, including legal scholars, have criticized the Supreme Court’s Smithdecision on the unexamined assumption that the free exercise clause of the First Amendment was intended to guarantee a right to religion-based exemptions, in this article I present part of the evidence that demonstrates that the clause was NOT intended to do so and, therefore, that the Smith decision is not only consistent with, but required by the original meaning of the clause.30 Only part of the *373 evidence is presented here because a presentation of all the evidence needed to make the case for such an understanding of the free exercise clause would require a discussion of all the following topics: (1) the views of the leading proponents of religious liberty in early America on the issue of a right to religion-based exemptions; (2) the wording and meaning of the religious liberty provisions that were in the various colonial charters and state constitutions prior to the adoption of the First Amendment; (3) the clashes that occurred in early America between the demands of particular laws and the demands of religious conscience; and (4) the setting, wording, and events involved in the actual writing and adoption of the First Amendment.
This article addresses only the third topic: what exemptions from specific laws (if any) were sought and granted on the grounds that they were guaranteed by the religious liberty provisions in the various colonial charters and early state constitutions? More specifically, it explores whether or not early Americans believed that Quakers and others who conscientiously objected to military service had either a natural or constitutional right, derived from the principle of religious freedom, to be exempt from having to obey conscription laws. It concludes that they did not so believe.
I focus on the issue of conscientious objection to military service for two reasons. First, the historical record contains very few other examples of serious clashes between the claims of conscience and the claims of valid, secular laws, especially clashes where exemptions were claimed as natural or constitutional rights.31 Some scholars have explained this absence of conflict on the grounds that in early America there were relatively few laws that had the potential to conflict with the practice of religion32 and there was widespread *374 consensus on moral principles and, thus, on the goals and laws of government.33 Nevertheless, the small number of conflicts between conscience and law in early America is by itself a very convincing reason for thinking that the framers of the First Amendment simply did not “envision potential religious exemptions as applying to neutral laws of general applicability.”34
In any case, in eighteenth-century America, there was at least one significant, widespread conflict between religious conscience and secular law– that between conscription laws and conscientious objectors. The way in which that conflict was resolved, therefore, should indicate whether early Americans believed that they had a natural or constitutional right to at least one religion-based exemption.
The second reason for focusing on the issue of conscious objection to military service is the fact that leading defenders of a general constitutional right to religion-based exemptions cite the treatment of conscientious objectors in early America as evidence supporting the proposition that early Americans believed in such a right.35McConnell calls it “a particularly telling example.”36 Even some scholars who deny that the principle of religious liberty in early America entailed a general right to religion-based exemptions concede that exemptions from conscription laws were given to conscientious objectors on the basis of religious liberty. For example, John K. Wilson writes, “Though in practically all matters civil law could not be violated because of religious beliefs, conscientious objection to war was considered an exception.”37 Therefore, if, as this article contends, the historical evidence on the *375 conscription controversy does not support such a conclusion, then it follows that the historical case for a right to religion-based exemptions derived from the free exercise clause has a large hole in it, for there is no other controversy from early America that can provide evidence toward making such acase.
By the time of the Revolution, Americans generally were aware of the fact that Quakers and members of a few other religious sects, such as the Brethren and the Mennonites, were pacifists who refused for religious reasons to take up arms in defense of themselves or others.38 Many Americans, moreover, were sympathetic to the moral plight that conscription laws created for the pacifists. For example, in 1775, shortly before the outbreak of the Revolution, the Continental Congress, in response to an appeal from pacifists in Pennsylvania, expressed the following sentiment:
As there are some people, who, from religious principles, cannot bear arms in any case, the Congress intended no violence to their consciences, but earnestly recommend it to them, to contribute liberally in this time of universal calamity, to the relief of their distressed brethren in the several colonies, and to do all other services to their oppressed Country, which they can consistently with their religious principles.39
As a result of such sympathy, exemptions from conscription laws were often granted to religious conscientious objectors before, during, and after the Revolution.40 Five of the newly independent states–Pennsylvania, Delaware, New Hampshire, Vermont, and New York–went so far as to put provisions granting such exemptionsin their constitutions.41
*376 One cannot infer from such exemptions, however, means that early Americans generally believed that conscientious objectors to war have a natural or constitutional right to such exemptions. One cannot infer this for three reasons. First, the exemptions were granted by legislatures, not courts. After all, the majority of the states did not have constitutional provisions requiring exemptions and even if they did, it made no practical difference, for judicial review had not yet been established in the nation.42 When clashes arose between their conscience and a conscription law, therefore, pacifists did not go to courts and attempt to get exemptions from the law by arguing that a religious liberty provision in a charter or constitution required such exemptions to be given. Rather, when they sought to obtain exemptions from an existing or proposed draft law, they went to the legislative body responsible for passing the law.43
Second, when persons seeking exemptions went to legislatures, they did not necessarily argue that the legislatures were legally or morally bound by either natural law or a constitution to grant the exemptions. Often the exemptions were requested as special favors or privileges, and appeals were made to the legislators’ sympathy or self-interest, i.e., their need of votes.44 Likewise, *377 when legislatures did grant exemptions, they usually did so out of sympathy, not because they thought the claimants had a right to them. Thus, exemptionsfrom conscription laws were usually granted by legislatures as “privileges” or “indulgences,” not as “rights,” and even then there was often strong opposition to such grants.45
Third, even when specific constitutional provisions were cited as the reasons for granting exemptions46 one cannot infer that the exemptions were sought as “rights” in the modern sense of the word, for the colonial charter and state constitutional provisions guaranteeing various freedoms were not understood as rigid restraints on a government’s power or as guarantees of anything like absolute rights to its citizens. Rather, such provisions were thought of as statements of goals or ideals that a government was obligated to realize as much as it could, but only after taking into account all its competing objectives and responsibilities.47
Not surprisingly, therefore, even Michael McConnell concedes that the existence of exemptions for conscientious objectors does not prove “that religious objectors were entitled to exemptions by right.”48Nevertheless, in lawyer-like fashion, he refuses to concede the point entirely. First, he argues that many of the rights in the Constitution came to be included therein because prior to 1789 they had been recognized in state statutes or the common law and that it is very likely that the right to exemption from military duty was one of those rights. He reasons, “If legislatures conceived of exemptions as an appropriate response to conflicts between law and conscience, there is every reason to suppose that the framers and ratifiers of the federal Constitution would expect judicially enforceable constitutional protections for religious conscience to be interpreted in much the same manner.”49
*378 There is not, however, “every reason” to accept McConnell’s supposition. Although some rights granted by statute or the common law were indeed elevated into judicially enforceable Constitutional rights, most were not so elevated. Thus, the mere fact that a right to be exempt from fighting in wars was granted by some state legislatures (and even constitutions) does not mean that it was one of those rights that came to be guaranteed by the Constitution. After all, the issue at that time was precisely which of the many existing statutory or common law rights should be protected by the new federal Constitution.
McConnell’s second reason for thinking that conscientious objector exemptions, even though granted by legislatures, were viewed as “rights” is the possibility that “the exemptions were granted because legislatures believed the free exercise principle required them.”50 Although his reasoning here is sound, McConnell fails to give any evidence showing that the exemptions were in fact granted for such a reason. He simply asserts that such “seems to be the case.”51
Nevertheless, McConnell’s argument does raise a relevant question. Were the exemptions that were given to conscientious objectors by either state statutes or constitutions given on the grounds that they were required by the principle of religious liberty? If they were, that fact would clearly imply that the exemptions were considered to be rights. The evidence, however, indicates that in most cases they were not. First, many of the pacifists themselves did not claim that the unavailability of exemptions constituted a violation of religious freedom. Thus, Stephen B. Week’s extensive account of Quakers in the southern colonies/states contains no material linking Quaker demands for exemptions from conscription with the principle of religious freedom.52 Although many of the petitions submitted by pacifists to colonial or state legislatures did request exemptions on the grounds that*379 they were required by the principle of religious liberty,53 many did not do so, but essentially “begged for mercy.”54
Second, exemptions from military service were given to many other persons besides conscientious objectors. Absolute or unconditional exemptions were, for practical reasons, given to a broad range of persons, such as government officials and doctors. Moreover, in many states, because of the general hostility to compulsory military service, almost anyone who was willing and able either to pay a “fine” or to secure a substitute could receive an exemption.55 This means that the exemptions given to religious objectors were not all that special or necessarily based on the principle of religious liberty.56
A final point on this issue: the state constitutions that contained a provision exempting pacifists from conscription laws also contained a religious liberty provision, and the two provisions were in completely separate, unrelated sections.57 The clear implication of the choice both to make a separate provision for conscientious objection and to place it away from the religious liberty provision is *380 that the general principle of religious liberty was not thought to include the right of exemption for religious conscientious objectors.
For these reasons, I conclude that the evidence is lacking to support the proposition that late eighteenth-century Americans believed that the principle of religious liberty gave conscientious objectors to war a right to be exemptfrom conscription laws. Although the historical record may support McConnell’s claim that “[m]ost of the colonies and states . . . exempted religious objectors from military conscription . . . expressly in order to avoid infringements of their religious conscience,”58 this does not mean that the exemptions were thought to be rights or were required by the principle of religious liberty.59 Rather, what the record summarized thus far indicates, at a minimum, is that most persons probably had no opinion on the issue because exemptions from draft laws were not discussed very much in terms of religious liberty. This is the conclusion reached by the foremost scholar on church-state relations in early America, Thomas J. Curry, who writes that the issue of conscientious objection to war “never became the subject of widespread dissent or discussion on Church-State matters” and, thus, did not “contribute to the clarification of what Americans meant by religious freedom.”60
As important as it is, Curry’s point can be called a “minimal” one because it says only that the historical record does not demonstrate that early Americans believed that conscientious objectors had a right to be exempt from conscription laws. It leaves open the possibility that they did so believe. As such, it is not enough to refute McConnell’s main thesis that the right to religion-based exemptions is at least a possible way of interpreting the free exercise clause. Indeed, John Howard Yoder contends that the lack of debate over the inclusion of conscientious objection as a religious liberty right can better be explained on the grounds “that they [framers] were taking them [[[exemptions] for granted, and were intending to build a floor under them with the free exercise clause, than to claim that the omission was intended to be read as a denial.”61
*381 I believe however, that it is possible to go beyond the weak conclusion that there is insufficient evidence to establish that early Americans believed that the principle of religious liberty guarantees conscientious objectors aright to be exempt from obeying conscription laws. In my view, the historical record warrants the stronger conclusion that early Americans clearly and explicitly rejected such a position, for the record shows that in some places, especially Pennsylvania, and at times, especially during and after the Revolution, the religious liberty justification for exemptions as constitutional rights was explicitly and repeatedly made by the pacifists, but rejected by legislators and citizens in general.
The conclusion that there is insufficient evidence either way about exemptions for conscientious objectors overlooks the fact that the exemptions granted to conscientious objectors were seldom, if ever, considered by them to be adequate or satisfactory because they were limited or conditional in nature. To avoid military service, the objectors had to secure a substitute or pay a fine or special tax. It is quite clear, moreover, that the lawmakers who imposed the fines or taxes considered them to be the equivalent to military service, and their amount was set accordingly.62 As a result, the exemptions were rejected by most Mennonites, Brethren, and Quakers, some of whom suffered imprisonment and loss of property for failure to serve, pay a fine/tax, or secure a substitute.63Moreover, the lawmakers in the various states were quite aware that pacifists objected to paying a fine or tax in lieu of military service.64
*382 These facts make it very difficult, if not impossible, to maintain that the existence in early America ofexemptions for conscientious objectors reflected a concern for religious liberty on the part of legislators. If theexemptions were granted for that reason, then it can only be concluded that the legislators had a very niggardly conception of religious freedom. Certainly the pacifists who sought the exemptions on the grounds of religious liberty did not believe that the exemptions that were actually granted satisfied the demands of religious liberty.65To the contrary, in their minds the laws granting conditional exemptions, especially those provisions that were contained in the first state constitutions, constituted a defeat, not a victory for religious liberty.66 The historical record, in short, indicates not just uncertainty about but in some places actual rejection of the idea that persons have, because of their religious convictions, a right to be exempt from conscription laws.
To support this maximal conclusion in some detail, I will offer an account of two cases where lawmakers explicitly considered but rejected the proposition that religious liberty requires the government to give exemptions from conscription laws to conscientious objectors. The first case occurred in Pennsylvania, where there was a large number of pacifists, most of whom contended for draft exemptions on the basis of religious liberty and a specific provision in the colonial charter. Although they never had to make such an argument until 1757, because before then there was no possibility of conscription laws being passed, thereafter when such laws were passed and the pacifists needed to and did argue for exemptions from the draft, they failed to obtain them because the people of Pennsylvania rejected their understanding of religious freedom. The second case involves the events at the First Congress, which in 1789 drafted a proposed Bill of Rights to be added to the new national Constitution, but which refused to include in that document a provision giving conscientious objectors even a limited or conditional rightto be exempt from having to serve in the military.
Pennsylvania was founded by William Penn because, among other reasons, he wanted a place where fellow Quakers could live and not be punished, as they had been in England, for dissenting to the established Church of England, refusing to serve in the military, and refusing to swear oaths in court or oaths of allegiance to the crown.67 Ironically, Penn failed to include in his 1682 Frame of Government of Pennsylvania an explicit guarantee of a right to religion-based exemptions from military service or oath taking. He may have assumed that the Frame’s guarantee of religious freedom implied a military exemption right.68 We know that he often linked liberty of conscience with the right to be exempt from militia duty and the right to use affirmations rather than oaths.69 Another explanation for the absence of provisions explicitly protecting conscientious objectors to war is that Penn assumed that because Quakers would control the government in Pennsylvania, the colony “would have no militia, no fortifications, and no war” and thus would pose no threat to conscientious objectors.70That explanation is made even more plausible by the fact that when the colonial charter was revised in 1701, the religious liberty provision was expanded to include a prohibition against compelling any persons “to do or suffer any other Act or thing, contrary to their religious Persuasion.”71 Perhaps by 1701 Penn and his fellow Quakers began to realize that Quakers would not always be in the majority in Pennsylvania and able to control its legislature72 and that the charter needed to be more explicit in its protection of their pacifism and refusal to swear oaths. In any case, the new religious liberty provision was worded so broadly that, taken literally, it guaranteed not only a right to be exempt from military service and oath-taking but a right to religion-based exemptions in general.
*384 Whether that was what was intended is a matter of debate. According to one scholar, the provision reflected “a sectarian vision,” which sought to guarantee a religious liberty “that made it possible for the nonresistant sects to live according to conscience and not just to worship according to conscience.”73 On the other hand, Penn himself had a very positive view of government and emphasized strongly the importance of obedience to its laws. Although he was an ardent proponent of liberty of conscience, he clearly did not believe that it was an absolute freedom.
Very conservative in his conception of what was socially acceptable religious activity, Penn was willing to deny religious liberty “to religious societies that were possibly inconsistent with the safety of the civil government or whose presence was detrimental to governmental authority.”74 He tended to separate conscience, which he defined as “the Apprehension and Persuasion a Man has of Duty to God,” from behavior.75 A typical passage that illustrates his position is the following: “We are pleading only for such a Liberty of Conscience, as preserves the Nation in Peace, Trade, and Commerce; and would not exempt any Man, or Party of Men, from not keeping those excellent Laws, that tend to Sober, Just and Industrious Living.”76 Moreover, his conception of what morality requires or forbids that could be enforced by law was remarkably broad (and very likely to offend a modern reader).77 It is not surprising, therefore, that even McConnell concedes that passages in Penn’s writings “can be interpreted as rejecting free exercise exemptions.”78
Complicating matters even more, the legal status of the new religious liberty provision was soon cast in doubt by the action of *385 the Board of Trade back in London. In exercising its right to review all of the colony’s laws, it refused to approve the law, partially on the grounds that it did not place any limits on the “conscientious practices” that it allowed. As a result, the colonial Council in 1724 declared the religious liberty part of the original 1682 Frame of Government still in effect.79 Until a new constitution was adopted in 1776, however, many Pennsylvanians, especially the Quakers, continued to look upon the religious liberty section of the 1701 Charter of Privileges as valid and as the legal basis of their claims to be exempt from military service. Others, however, whether they accepted the validity of the 1701 provision or not, challenged the Quaker interpretation of the provision and the principle of religious liberty.80
In order to understand the debate that occurred in Pennsylvania over the meaning of religious freedom, one must first understand the basic dilemma that William Penn and the Quakers faced from the very beginning of the colony’s existence because they were in control of the its assembly: how they could protect the lives and liberties of all the citizens without compromising their commitment to the practice of pacifism.81 In the face of this dilemma, the Quaker-controlled Assembly repeatedly decided against passing military or defense measures in the hopes that the Indians could be pacified by fair and humane treatment, that British forces would protect the colony from foreign invaders, and ultimately that God would preserve the colony.82 Although on a few occasions it raised money for British military expeditions,83 before 1777 Pennsylvania successfully managed to avoid having a militia law that required compulsory military duty.84 As a result, the matter of exemptions from military service for conscientious objectors never became a pressing issue; the Quakers protected consciences by refusing to pass militia laws.
There were times, however, when the colony faced serious external threats and when many citizens urged the assembly to establish a militia to protect their lives and property. Because the *386 assembly refused to do so until 1755, it was often criticized, among other things, for violating the liberty of conscience of those who felt that defense measures were needed.85 To these critics, the refusal of the Quakers, because of their religious scruples, to govern Pennsylvania according to widely accepted principles and like most states and colonies were governed was an example of one group’s imposition of its religion onto the rest of the citizenry and a violation of Penn’s guarantee of religious freedom.86
It might be argued that the Quakers could have avoided this criticism as well as any violation of their consciences simply by passing a compulsory militia law with an unconditional exemption for themselves and other conscientious objectors. They never did so. Aside from the fact that voting for such a measure would have been unconscionable to them, they believed that selective compulsory service would have been unfair to non-pacifists and a violation of their religious liberty. As early as 1739, when the governor urged the assembly to enact a militia law, the Quaker-dominated assembly admitted that it was faced with a dilemma. On the one hand, passing such a law without granting exemptions to pacifists would violate the constitutional guarantee of liberty of conscience, but, on the other hand, passing a militia law and exempting only pacifists “would be an Inconsistency with themselves, and partial with respect to others.”87 The assembly may have also thought it had no authority to grant such exemptions.88 In any case, the assembly passed no militia law at all–at least not until 1755.
The militia law passed in that year, however, was most unusual; it authorized a militia and set up rules for its organization, but enrollment in the militia was not required of anyone. The law basically legalized a voluntary militia89 and was designed to avoid the dilemma of having no militia or having one that drafted only non-pacifists.*387 This is clear from the language of the law itself. First, it said that any law that compelled Quakers to bear arms would violate the Charter of Privileges, but that exempting only Quakers from military service “would be inconsistent and Partial.” Then, it noted that “great Numbers of People of other Religious Denominations are come among us who are under no such Restraint, some of whom . . . Conscientiously think it their Duty to fight in defence of their Country . . . , and such have an Equal Right to Liberty of Conscience with others.” Therefore, the statute concluded, “We do not think it reasonable that any should thro’ a want of legal powers be in the least restrain’d from doing what they Judge it their Duty to do for their own Security and the publick Good . . . . ”90
Although it was declared invalid by the authorities in London, the law of 1755 illustrates that at that time the principle of religious liberty, as it was understood by the Quakers, was difficult for them to apply in a meaningful way because of its apparent inconsistency. In an essay explaining and defending the Militia Act of 1755, Benjamin Franklin, who was by then one of the leading spokesmen for the Quaker Party (although not a Quaker himself), made the difficulty quite clear. In defense of the law’s failure either to compel the Quakers to muster or to pay a fine if they did not, he argued that they were exempted from both by the religious liberty provision in the 1701 Charter, which he quoted. Then he explained why the Quakers, “being a Majority in the Assembly,” had not “made the Law compulsory on others.” “But it seems they thought it more equitable and generous to leave to all as much Liberty as they enjoy themselves, and not lay even a seeming Hardship on others, which they themselves declined to bear.” Moreover, in defense of the pacifists, he added, “When Taxes are raised . . . for the King’s Service, the Quakers and Menonists pay their Part of them . . . . And out of these Taxes those Men are paid who go into actual Service.”91 Franklin’s comments clearly suggest that the Quakers and their pacifist allies, when they were citing and relying on religious liberty as the reason for their decision to have a voluntary militia, were uncomfortable with the notion that religious liberty *388 gave them the right to be excused from having to do what others were required to do.
Between 1755 and the beginning of the American Revolution, the Quakers lost control of the Pennsylvania assembly–for at least three reasons. First, there were demographic changes. By 1760, all the pacifist groups together composed not more than twenty-five percent of the colony’s population. Second, “[t]he events of the turbulent years from 1740 to 1770 created new ethnic and religious alliances which made the pacifists into a decided minority with few allies.”92 Most of these events were political and military threats of one kind or another that caused more and more of Pennsylvania’s citizens, especially those living in the frontier part of the state, to reject the Quaker’s traditional policy of government pacifism.93 Then, when war with England began to appear inevitable, Quaker pacifism was thought to be not only irrelevant but even threatening to the patriot cause.94
Finally, as these developments occurred, the Quakers and other pacifist groups experienced an internal “revival” of commitment to the principles of nonresistance and nonviolence. Members of the sects who advocated and practiced compromise of these principles for the sake of worldly comfort and gain were chastised and, in somecases, forced out of their churches. As a result, most Quaker politicians felt that they could no longer serve in the assembly or hold other offices in the government, because it was on the verge of adopting and carrying out a policy of war.95
Once they lost their political power and then were faced with the prospects of having to fight in a war, the Quakers and other pacifists became more insistent and unified in claiming that the principle of liberty of conscience, especially as embodied in the 1701 Charter of Privileges, gave them the right to be exempt from both serving in the military and paying a fine or tax instead.96 They urgently made the argument in 1757, when for the first time the *389 Assembly passed a compulsory militia law, partially because Quakers no longer constituted a majority of the body. Although the militia law offered conscientious objectors the alternative of noncombatant service, it also imposed a fine of twenty shillings on those who refused to serve either in the military or in a noncombatant way. This caused the Philadelphia Meeting for Suffering to protest the law as a violation of the religious liberty guaranteed Quakers by the colony’s Charter. Members of the opposing party, of course, argued that unconditionalexemptions for conscientious objectors were unfair.97 Ironically, but fortunately for the Quakers, the law was vetoed by the governor because he thought the law went too far in granting protection to pacifists.98
The issue of exemptions became much more pressing when it appeared that the colonies would fight a war to obtain independence from England. On the one hand, because of their commitment to nonresistance and passive obedience, the pacifists attempted to take a neutral position on the impeding conflict. On the other hand, by 1775, voluntary associations of patriots (Associators) had begun organizing and enrolling persons in local militias. When members of the pacifist sects refused to enroll, clamor began for imposing a fine or tax on them that would be the equivalent for turning out with the militia. Its purpose was to compel the pacifists to take their place beside their neighbors in defence of their liberties and to no longer be “on the sidelines” in the struggle.99
The issue came to a head late in 1775, when it appeared that a compulsory militia law would become a reality. Petitions from both the Associators (asking for a law requiring all persons to support the patriot cause either in person or in money) and the Non-Associators (asking that exemptions from both service and contributions be granted to conscientious objectors) were submitted to the Pennsylvania Assembly.100 The Philadelphia Meeting for Suffering appealed to the Assembly for unconditional exemptions from military duty on the grounds that the “liberty of conscience” guaranteed in the colony’s Charter “was not limited to the Acts of *390 Public Worship only.”101 The group also contended that the Assembly’s failure to protect their consciences was inconsistent with the main reason that William Penn had established the colony in the first place.102 Similar petitions were submitted to local authorities. One of them, from a group of conscientious objectors in Berks County protesting the County Committee’s decision to impose a fine on all those who refused to bear arms, is noteworthy because it referred to the right not to bear arms as “a divine and Sacred Right” and concluded that “to wrest the Enjoyment of the Same from any Body must be Sacrilege [and e]xcite divine Vengeance, and must be void in Effect.”103
Although the Quakers and other pacifists made a good legal case on behalf of their having a constitutional right tobe exempt from military service, other Pennsylvanians, especially the Associators, did not accept the Quakers’ interpretation of the 1701 Charter of Privileges. Different groups made different arguments. In 1775, in a “representation” to the Assembly that asked for a tax or fine on non-Associators that would be equivalent to the burden borne by them, a group of Associators from Philadelphia addressed head on the claims of the Quakers that the Charter of 1701 gave them a right to be unconditionally exempt from militia duty. First, the group appealed to “the most certain and evident Principles of Equity and Justice” and argued that any “Religion which teaches to deny the Demand of Justice and Equity, cannot be of God; nor will the Conscience which is influenced thereby meet with his Approbation.”104 This appeal to justice, ironically, had been used earlier by the pacifists themselves, when they had controlled the government, to justify their policy of having no militia (instead of having one and exempting conscientious objectors from having to serve in it).105
Second, although the Associators admitted that “Liberty of Conscience is so sacred a Thing that it ought ever to be preserved inviolate,” they contended that “the great Law of Self-preservation is equally binding with the Letter of written Charters . . . . ” Therefore, *391 they concluded that “when, under Pretence of this Liberty the very Existence of Civil Government is struck at, . . . either the Liberty claimed must be given up or the Government dissolved; and this we apprehend to be the Case when any of the Members of a Community, from a Claim of Religious Liberty, refuse to support the Society to which they belong . . . . ”106
Finally, the Associators said that the Charter provision on which the Quakers relied was “never intended to grant an Exemption from paying their just Proportion towards the Support of . . . [government], whether Civil or Military . . . . ” They insisted that the religious liberty provision did not “extend to such Exemptions on any Pretence whatever” but, in fact, required those who claimed the liberty “to ‘profess themselves obliged to live quietly under the civil Government,’ which cannot possibly be when they refuse to support the Measures often necessary to its very Existence.” To support this conclusion, they pointed out that exemptions from paying taxes to support a war were inconsistent with the colony’s royal charter, which gave the proprietors the power “to levy, muster and train all Sorts of Men, of what Condition soever . . . and to make War [etc.] . . . . ” To drive the point home, the petition closed with the argument that no claim of exemptions from having to support military measures had ever been granted Quakers “in any part of the British Empire” and that, in fact, the Quakers had always paid taxes “levied for the Purpose of defraying the Expences of Military Expeditions, both here and in Europe” and had never complained about doing so. “Thus,” the petition ended, “their own Practice becomes a strong Proof against them . . . . ”107
Although this petition did not explicitly deny that the charter provision created a general right to religion-basedexemptions and, thus, might be explained on the grounds that its authors thought that the Quakers’ claim was too extreme (or, in today’s parlance, should be denied because of a “compelling” governmental interest), the same cannot be said about another petition submitted to *392 the Assembly (by the officers of the Military Association of the City and Liberties of Philadelphia). It said:
We cannot alter the Opinion we have ever held with Regard to those parts of the Charter quoted by the Addressors, that they relate only to an Exemption from any Acts of Uniformity in Worship, and from paying towards the Support of other religious Establishments, than those to which the Inhabitants of this Province respectively belong. We know of no Distinctions of Sects, when we meet our Fellow Citizens on Matters of Public Concern, and ask those conscientiously scrupulous against bearing Arms, to contribute toward the Experience of our Opposition, not because of theirreligious Persuasion, but because the general Defence of the Province demands it.108
In essence, the petition “narrowly construed the grant of religious freedom in the Charter and threw the sectarian contention that religion was more than a Sunday worship out of court.”109 To support their contention the Associators stated that the Charter provision had never been understood, even by Quakers, to guarantee anexemption from paying taxes in support of wars.110
Regardless of its historical merit, it was this second and narrow interpretation of religious liberty that eventually won out in the political arena–in at least three significant ways. First, the Constitution adopted in 1776 by the newly independent state of Pennsylvania constituted a clear defeat for the pacifists. Not only did it make the 1701 Charter irrelevant, but more importantly, its rewritten provision on religious liberty contained no clause implying aright to religion-based exemptions. Specifically omitted was the clause from the 1701 Charter that prohibited the compelling of persons “to do or suffer any other Act or Thing, contrary to their religious Persuasion,” and the new clause guaranteeing the free exercise of religion was explicitly limited to worship.111
*393 In addition, although the Constitution contained a clause exempting conscientious objectors from having to bear arms, it was not part of the religious liberty provision, and, more importantly, the exemption that it guaranteed was conditioned on persons’ paying an “equivalent” to serving in the military.112 In short, the new Constitution did not provide the pacifists with the protection to which they thought they were entitled by the principle of religious liberty.113
Second, both in 1775, when the 1701 Charter was still in effect, and afterward the Pennsylvania Assembly passed and repassed conscription laws that exempted “nonassociators,” but only if they paid a special tax.114“The Assembly clearly intended to make the peace churches pay the cost of the war and the tax on Non-Associators was an avowed equivalent to military service.”115 Moreover, the laws were harshly, although not uniformly, enforced with the result being that many pacifists suffered greatly for refusing to serve in the military or pay the special tax. The punishments they received included large fines, loss of property, imprisonment, exile, forcible conscription, and loss of certain civil rights, such as the right to vote.116 Although some pacifists asserted that the conscription law violated the religious liberty provision in the new 1776 constitution,117 it is noteworthy that one of the most eloquently worded petitions to the Pennsylvania Assembly appealed not to that provision but to “the generous and liberal foundation of the charter and laws agreed upon in England between our first worthy proprietary William Penn and our ancestors, whereby they apprehended religious and civil liberty would be secured inviolate to themselves and their posterity” and to “the true spirit of government . . . [and] the real interest and good of the community . . . . ”118 All their protests, however, were to no avail. The general meaning of what happened has been concisely stated by J. William Frost: *394 “The Revolution marked the end of the Quaker or sectarian definition of religious liberty.”119
Moreover, what happened in Pennsylvania regarding the meaning of religious liberty was not unique. According to a recent study, “Americans were in general agreement that government could lawfully require citizens to perform some manner of military service, sometimes with allowance for alternative service or, more commonly, monetary payments. The doctrine of the Pennsylvania Bill of Rights of 1776 that made the right to claim the protection of society in the enjoyment of life, liberty, and property dependent on personal military service, or an equivalent, had not only gained wide acceptance during the war years, but found a place in nearly every state constitution adopted in wartime.”120
Even so, after the Revolutionary War ended, the issue of whether religious conscientious objectors, like Quakers, had a right to be exempt from serving in the military did not die. In Pennsylvania, the issue continued to be debated until 1790, when the state adopted a new constitution. At the convention that drafted the document, an attempt was made to repeal the requirement stated in the 1776 constitution that conscientious objectors had to pay a special tax in lieu of military service, but the proposed revision was defeated by a large margin. By doing so, “the convention continued to repudiate the Quaker-sectarian definition of religious liberty.”121 Moreover, the Quakers themselves understood what was happening as “confining the rights of conscience to what they call worship.”122 Finally, because many of those involved in the drafting of the 1790 constitution were also involved in the drafting and/or ratification of the Bill of Rights, what happened at the state constitutional convention provides a valuable, albeit indirect indication of how Pennsylvanians understood the free exercise clause of the First Amendment.123
Exemptions from military service for conscientious objectors became a national issue first when ratification of our present Constitution was debated and then later when the First Congress debated what provisions to include in a bill of rights. Here again, however, the evidence indicates that most persons at that time did not think that the principle of religious liberty or the free exercise of religion guarantees a right to religion-based exemptions in general or to exemptions from military service.
The exemption issue surfaced when Antifederalists opposed to the proposed constitution argued that the document was defective because it did not contain a bill of rights, including a provision giving religious conscientious objectors a right to be exempt from having to bear arms.124 In order to get around this objection and get the Constitution ratified, its proponents promised to add a bill of rights. In turn, various states drew up lists of provisions to be included in a bill of rights.
Three states, Virginia, North Carolina, and Rhode Island, proposed a provision to protect conscientious objectors.125 Then, when the First Congress met, James Madison, who had promised to work for the addition of a bill of rights and was a member of the House of Representatives committee charged with writing it, included a conscientious objector provision in a list of rights that he drafted for the House to consider. The provision stated that “no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”126
*396 Like its antecedents in the various state constitutions, Madison’s proposition was hardly radical, for it allowed the government to condition an exemption on the paying of a fine or the hiring of a substitute– neither of which was acceptable to most pacifists.127 After the provision was reviewed by a special committee, however, it returned in a more radical form, i.e., without any conditions attached to the exemption. It was this radical proposal that was extensively debated by the House of Representatives in 1789. Eventually, however, it was rejected in favor of one like Madison had originally proposed, but even this mild provision never became part of the Bill of Rights because it was removed by the Senate from the list of proposed amendments to the Constitution.128
What does this record of events at the First Congress tell us about what late eighteenth-century Americans believed regarding their having a natural or constitutional right to be exempt from having to bear arms? First, and obviously, it tells us that a significant number of them did not believe that they had any such a right; after all, the proposed conscientious objector amendment was rejected by the Congress.129 Moreover, although those who voted against the proposed amendment had different reasons for doing so, many of them who did so must have agreed with the reasons given by Representative Egbert Benson:
[I] . . . would always leave it to the benevolence of the Legislature, for, modify it as you please, it will be impossible to express it in such a manner as to clear it from ambiguity. No man can claim this indulgence of right. It may be a religious persuasion, but it is no natural right, and therefore ought to be left to the *397 discretion of the Government. If this stands part of the Constitution, it will be a question before the Judiciary on every regulation you make with respect to the organization of this militia, whether it comports with his declaration or not. It is extremely injudicious to intermix matters of doubt with fundamentals. I have no reason to believe but that the Legislature will always possess humanity enough to indulge this class of citizens in a matter they are so desirous of; but they ought to be left to their discretion.130
Second, the record tells us that even most of those members of the First Congress who believed that persons have a natural or constitutional right to exemptions from military service did not believe that the right is unconditional or complete in nature, for a provision granting an unconditional exemption was rejected by the House of Representatives. This, in turn, means that even if it were conceded that the exemptions for conscientious objectors that existed in early America stand as a model for or justification of a broader right toreligion-based exemptions in general, it must also be admitted that the kind of right to religion-basedexemptions that they exemplify or justify is a very weak or limited right. Indeed, one could argue, as most pacifists at that time did, that it is no right at all because persons have to compensate heavily for the exemptionsthey receive.
Third, and perhaps most significantly, the attempt to include a separate conscientious objector provision in the bill of rights clearly implies that even those who favored such a provision did not believe that a right to be exemptfrom bearing arms is required by the principle of religious freedom. Otherwise, why would they have felt it necessary to have a separate conscientious objector provision when it was clear that the Bill of Rights was going to include a provision guaranteeing the free exercise of religion? Madison, for example, submitted a conscientious objector amendment even though the amendment he proposed at the same time to protect religious freedom was worded perhaps as broadly as it possibly could have been: “[N]or shall the full and equal rights of conscience be in any manner, nor on any pretext infringed.”131 The most likely explanation for his doing so is that Madison did not *398 intend for his religious liberty proposal, as broad as it was, to give conscientious objectors a right to beexempt from bearing arms.132
Although Michael McConnell recognizes the import of this last argument, he again characteristically refuses to concede the point; instead he gives three possible reasons why a separate provision for conscientious objectors would have been required even if it had been thought that they were also protected by the free exercise clause. None of the three, however, is persuasive.
First, McConnell says that the free exercise clause would not have protected pacifists from state militia laws because when it was adopted it applied only to the federal government.133 This argument will not work for two reasons. One, it assumes that the proposed separate provision exempting persons with religious scruples from bearing arms would have applied to the states, whereas, in fact, Madison’s proposal was intended to limit only the national government.134 Two, if McConnell is correct in arguing that the religious liberty provisions in the state constitutions guaranteed a right to religion-based exemptions, including exemptions from draft laws, then there was no reason to have a national constitutional provision that applied to the states. On the other hand, if such a provision was necessary to protect pacifists from state militia laws, that means the state religious liberty provisions were not meant to guarantee exemptions from conscription laws to conscientious objectors.
Second, McConnell argues that although the free exercise clause was intended to guarantee a general right toreligion-based exemptions, its framers could not be sure that the courts would uphold that it protected the specific right of conscientious objectors to be exempt from conscription laws; after all, that determination would “depend, in part, on the judiciary’s assessment of the government interest in conscription.” To be on the safe side, therefore, those who favored protecting the pacifists thought a separate provision just for them was needed.135This, of course, makes *399 sense, but it undercuts McConnell’s main argument that early Americans believed that exemptions for pacifists are dictated by the principle of religious liberty, because doubt about what the courts would do implies doubt about whether early Americans believed that pacifists should be protected by the free exercise clause.
Third, McConnell contends that because some states had proposed that both an exemption provision and a religious liberty provision be added to the Constitution, even those Congressmen who thought that conscientious objectors were protected by the free exercise clause would have thought it necessary to keep a separate provision specifically for them, for if it were not kept, “this would create an inference that there is an intention in the general government to compel all its citizens to bear arms”–an inference that would undercut the protection that the free exercise clause ostensibly was intended to afford the pacifists.136 Again, although this was a possibility, the main effect of this argument is simply to raise a question about why the states submitted two separate provisions to the First Congress–one dealing with religious liberty and the other dealing with exemptions for conscientious objections–and why even before that they had separate provisions in their own constitutions? It seems only reasonable to assume that they did so because they did not believe that (or at least had serious doubts about whether) the principle of religious liberty entails a right to be exempt from serving in the military.
In short, events before and during the First Congress’ discussion of the issue lead inexorably to the conclusion that the framers of the Bill of Rights did not think that the principle of religious liberty entailed a right on the part of conscientious objectors to be exempt from serving in the military– although they did believe that legislatures could grant such exemptions as expressions of compassion. What happened has been well summarized as follows:
The lawmakers were reluctant to appear in the role of religious persecutors . . . . But they were firmly of the opinion that military service was an obligation of every citizen. If some citizens could not fulfil their military obligation because they saw participation in war as inconsistent with the teachings of Jesus, their protest could be dismissed as no more than “a religious persuasion.” The argument for freedom of conscience that the nonresistant sects had presented again and again for more than 50 years was inadmissible. No man had a natural right to live by his *400 conscience. The best he could hope for would be that government would be disposed to tolerate his peculiar opinions. It was a far cry from the liberty of conscience the peaceable sects had enjoyed under William Penn’s Charter.137
Given the facts and arguments presented above, it is no wonder that the Supreme Court has consistently stated, albeit in dicta, that the First Amendment does not give religious conscientious objectors a right to be exempt from bearing arms.138 The historical evidence to support a contrary holding simply does not exist. As Chester Antieau has written, “It cannot be affirmed from the materials now extant that the majority of the Founding Fathers of the Revolutionary generation accepted as of natural right the claim of conscientious objectors to be free from military service.”139 This, however, is the minimal conclusion that can be drawn from the evidence presented in this paper.
The preceding account of what happened in Pennsylvania supports a much stronger conclusion, for the citizens of that state confronted directly and explicitly the question of whether religious liberty gives persons a right to beexempt from having to obey conscription laws. They decided that it does not. The same judgment was reached by the framers of the Bill of Rights. The inescapable conclusion is that at least these two groups–the majority of Pennsylvanians and the majority of the members of the First Congress–rejected the idea that religious liberty or the free exercise of religion gives conscientious objectors a right to be excused from serving in the military. It is not surprising, therefore, that even Donald Giannella, who believes that the free exercise clause was intended to create a general right to religion-based exemptions, admits that denial of special treatment to conscientious objectors probably accords “with the views of the founding fathers.”140
What happened in Pennsylvania, however, leads to an even more far-reaching conclusion, for in debating whether religious liberty gives pacifists a right to be exempt from conscription, Pennsylvanians *401 were forced to debate the general meaning of religious liberty. After all, their colonial charter had a provision designed to protect religious liberty, and in 1776 they adopted a new constitution with a new religious liberty provision.141 In considering the issue of exemptions for conscientious objectors, therefore, Pennsylvanians could not help but discuss the meaning of those provisions and of religious freedom in general, and they interpreted them narrowly as guaranteeing only a right to be free from laws interfering in religious belief and worship. In short, Pennsylvanians rejected the idea that religious liberty entails a general right to religion-based exemptions. Given the fact that “Pennsylvania was, by all accounts, among the two or three most liberal colonies (and later, states) on the subject of religious liberty,”142 the significance of this conclusion can hardly be overstated.
In conclusion, this paper has shown that to the extent that criticism of the Supreme Court’s decision in Oregon v. Smith is based on the assumption that the free exercise clause was originally intended to guarantee a right toreligion-based exemptions and to the extent that that assumption is based on the fact that in early Americaexemptions from conscription laws were given to conscientious objectors, such criticism is misplaced. The mere existence of the exemptions themselves proves nothing, one way or another. More specifically, it cannot be assumed that the exemptions were thought to be rights or that they were given because of the principle of religious liberty. To the contrary, the historical record clearly shows that when the issue was debated by early Americans, they decided that religious liberty does not give conscientious objectors the right to be exempt from serving in the military. If the Smith interpretation of the free exercise clause is going to be seriously challenged, therefore, it will have to be on some grounds other than the treatment of pacifists’ exemption claims in early America.


Professor of Political Science, University of Richmond, Richmond, Virginia
494 US 872 (1990).
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . . ” US Constitution, Amend I.
Technically, the Smith case raised only the question of whether the state of Oregon could, consistent with the free exercise clause, deny unemployment compensation to persons who had taken peyote and had then been dismissed from their jobs for having done so. The Court said, however, that because the taking of peyote was illegal in Oregon, the answer to that question turned on whether a criminal prosecution of the Native Americans was precluded by the free exercise clause because they had ingested the drug as part of a religious ceremony. If it was not, then, according to the Court, their being denied unemployment compensation was also not precluded by the clause. Employment Division, Oregon v Smith, 494 US 872, 875-76 (1990).
Richard John Neuhaus claims that the decision “took almost everyone by surprise, leaving some breathless, some outraged, and most puzzled.” Polygamy, Peyote, and the Public Peace, First Things 64 (October 1990).
Justice O’Connor was the justice who voted to deny the claim of the Native Americans but disagreed with the majority’s reason for doing so. Employment Division, Oregon v Smith, 494 US 872, 891-907 (1990)(O’Connor, J., concurring).
Employment Division, Oregon v Smith, 494 US 872, 878-79 (1990).
374 US 398 (1963).
Employment Division, Oregon v Smith, 494 US 872, 884-89 (1990). According to Justice Scalia, theSherbert test was a “dead letter.” He pointed out that although the Court had paid lip service to the test in several of its opinions, it had never used the test, with one exception (in cases involving denial of unemployment compensation), to protect the exercise of religion from valid, non-discriminatory laws, even though it had had many opportunities to do so. Id at 883-84. In other words, in its Smith decision the Court was simply “calling a spade a spade.” Therefore, “it is hard to conclude that Smith has radically altered the likely outcome of free exercise cases.” Douglas W. Kmiec, The Original Understanding of the Free Exercise Clause and Religious Diversity, 59 UMKC L Rev 597 (Spring 1991).
Employment Division, Oregon v Smith, 494 US 872, 890 1990).
For a brief sampling of critical comments, see James E. Wood, Jr., The Religious Freedom Restoration Act, 33 J of Church and State 674-75 (Autumn 1991). Perhaps the leading critic from the ranks of religious spokespersons has been Richard John Neuhaus, editor of the periodical, First Things. See Polygamy, Peyote, and the Public Peace, First Things 63-68 (October 1990); In Response: Weighing the Risks, First Things 53-54 (February 1991); and A New Order of Religious Freedom, First Things 13-17 (February 1992). The most outspoken of the legal scholars who have criticized the Court has been Douglas Laycock, Professor of Law at the University of Texas Law School. See Watering Down the Free-Exercise Clause, 107 Christian Century 518-19 (May 16-23, 1990); The Remnants of Free Exercise, in Supreme Court Review 1990, ed G. Casper et al 1-68 (University of Chicago Press, 1991); The Supreme Court’s Assault on Free Exercise, and the Amicus Brief That Was Never Filed, 8 J Law & Relig 99-114 (1990); and Summary and Synthesis: The Crisis in Religious Liberty, 60 Geo Wash L Rev 841-56 (March 1992).
Wood, (cited in note 10, at 675-76).
Church of the Lukumi Babalu Aye, Inc. v City of Hialeah, 113 S Ct 2217 (1993).
Freedom of worship bill signed into law, Richmond Times-Dispatch, November 17, 1993, p A2.
Religious Freedom Restoration Act of 1993, Pub L No 103-141, sec 3, 107 Stat 1488 (1993).
For arguments against the Act, see Phillip H. Harris, Leaping Headfirst Into the Smith Trap, First Things 37-39 (February 1991), and Mark E. Chopko, et al, How To Restore Religious Freedom: A Debate, First Things 37-48 (April 1992).
See, for example, John Delaney, Police Power Absolutism and Nullifying the Free Exercise Clause: A Critique of Oregon v Smith, 25 Indiana L Rev 102-03 (1991); Stephen Pepper, Conflicting Paradigms of Religious Freedom: Liberty Versus Equality, BYU L Rev 12-13 (1993); and Kmiec (cited in note 8, at 597).
Laycock, The Supreme Court’s Assault on Free Exercise . . . , (cited in note 10, at 112) (emphasis in original).
Laycock, The Remnants of Free Exercise, (cited in note 10, at 3).
Religious Liberty, Nonestablishment, and Doctrinal Development: Part 1. The Religious Liberty Guarantee, 80 Harv L Rev 1388 (May 1967).
Harrop A. Freeman, A Remonstrance for Conscience, 106 U Pa Law Review 813 (April 1958).
See Paul K. Conkin, Freedom: Past Meanings and Present Prospects, in Freedom in America: A 200-Year Perspective, N. A. Graebner, ed, 205-22 (Pennsylvania State University Press, 1977). A good example of a phrase whose contemporary meaning is different from its eighteenth century one is “freedom of conscience.” See William Lee Miller, The First Liberty: Religion and the American Republic 122-23 (Alfred Knopf, 1986).
See Thomas J. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment 134-48, 176-77, 190-91, 217-21 (Oxford University Press, 1986); Thomas E. Buckley, Church and State in Revolutionary Virginia, 1776-1787 22, 115 (University Press of Virginia, 1977); and M. Paulson, Religion, Equality, and the Constitution: An Equal Protection Approach to Establishment Clause Adjudication, 61 Notre Dame L Rev 312-26 (1986).
William P. Marshall, The Case Against the Constitutionally Compelled Free Exercise Exemption, 7 J Law & Relig 379-83 (1989).
See Michael Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment 28, 35-40 (American Enterprise Institute, 1978); Walter Berns, The First Amendment and the Future of American Democracy 35-55 (Basic Books, 1976); Richard Morgan, The Supreme Court and Religion 23 (Free Press, 1972); Ellis West, The Case Against a Right to Religion-BasedExemptions, 4 Notre Dame J Law, Ethics & Pub Pol’y, 623-33 (1990); Gerard V. Bradley,Beguiled: Free Exercise Exemptions and the Siren Song of Liberalism, 20 Hofstra L Rev 245-319 (Winter 1991); and Philip A. Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo Wash L Rev 915-48 (April 1992).
The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv L Rev 1410-1517 (May 1990).
Id at 1415 (emphasis added).
Free Exercise Revisionism and the Smith Decision, 57 U Chi L Rev 1119 (Summer 1990).
Sherry, Lee v Weisman: Paradox Redux, in Supreme Court Review 1992 123, 147, 148 n 102 (D. Hutchinson et al ed 1993); Bradley (cited in note 24); and Hamburger (cited in note 24). For a harsh, but, in my opinion, valid criticism of “law office history” of First Amendment provisions, see Oscar Handlin, The Bill of Rights in Its Context, 62 The American Scholar 177-78 (Spring 1993).
See, for example, Laycock, The Supreme Court’s Assault on Free Exercise . . . , (cited in note 10, at 102) (“The [Smith] opinion is inconsistent with original intent. . . . McConnell shows that legislatures in the founding generation considered exemptions from facially neutral laws to be part of the free exercise of religion . . . . ”); Delaney, (cited in note 16, at 121, n 8) (“The absence of a detailed historical grounding of the Sherbert holding and rationale has been remedied by Michael’s McConnell’s recent article.”); and Robert N. Anderton, Just Say No to Judicial Review: The Impact of Oregon v Smith on the Free Exercise Clause, 76 Iowa L Rev 817, n 114 (May 1991) (McConnell concludes “that both the framers’ and popular notions of religious liberty at the time of the framingmost likely contemplated religious exemptions from generally applicable laws with secular purposes.”) (emphasis added). Moreover, because of McConnell’s national reputation as a constitutional law scholar, especially in the area of church and state, and because it was published in the Harvard Law Review, his one article on the original meaning of the free exercise clause has probably had more influence on the debate over the meaning of the free exercise clause than that of all the other works combined.
Even if I were able to show in this paper that my position on the original meaning of the free exercise clause is correct, that would not mean that the Supreme Court necessarily decided theSmith case correctly. Such a conclusion would follow only if constitutional cases must be decided, at least when possible, on the basis of the “original intent” of the framers. In this paper, however, I do not defend such a position. Indeed, I acknowledge that arguments other than textual and historical ones can be made in defense of persons’ having a constitutional right to religion-basedexemptions. Elsewhere, however, I have considered many, if not all, of these arguments and found them wanting. See West (cited in note 24, at 600-21).
McConnell, The Origins and Historical Understanding . . . , (cited in note 25, at 1466) (“the issue ofexemptions did not often arise”); Marshall, (cited in note 23, at 380) (“The framers obviously were aware that the beliefs of religious adherents could stand in opposition to the religious mandates of the state. . . . However, outside of these conflicts with state religious laws or test requirements, it is difficult to find examples where religious objections to the secular laws of the state were recognized.”)
McConnell, The Origins and Historical Understanding . . . , (cited in note 25, at 1466) (“the governments of that era were far less intrusive than the governments of today.”); Marshall, (cited in note 23, at 382) (“The regulatory state did not exist.”). Such an argument, however, may reflect more of an idealized view than an accurate account of the scope and significance of government at that time. Even if the number of statutes in existence was relatively small, as compared to the number in existence today, that is hardly the whole story. Not only were the common law and local government much more important in regulating the lives of citizens than they are today, but law in general was much more likely than it is today to have the promotion of virtue as one of its aims and thus to regulate aspects of life that today are considered personal or private and beyond the scope of civil authority. See David Flaherty, “Law and the Enforcement of Morals in Early America,” inAmerican Law and the Constitutional Order: Historical Perspectives, L. M. Friedman and H. N. Scheiber, eds, 69-84 (Harvard University Press, 1978); Morton J. Horwitz, The Transformation of American Law, 1780-1860 1-16 (Harvard University Press, 1977); and Conkin, (cited in note 21, at 208-09).
Curry, (cited in note 22, at 79, 218-19); McConnell, The Origins and Historical Understanding . . . , (cited in note 25, at 1466); and Marshall, (cited in note 23, at 382-83).
Marshall, (cited in note 23, at 381).
See, for example, Laurence H. Tribe, American Constitutional Law 1266 (Foundation Press, 1988, 2nd ed); McConnell, (cited in note 25, at 1468-69); and Freeman (cited in note 20, at 813).
McConnell, The Origins and Historical Understanding . . . (cited in note 25, at 1468).
Religion Under the State Constitutions, 1776-1800, 32 J Church & State (Autumn 1990). Also, see Marshall, (cited in note 23, at 380-81 fn 95).
“Nonresistance was a deeply ingrained and ‘popular’ doctrine among Mennonites, Quakers, Brethren, and Schwenkfelders. There were few waverers.” Richard K. MacMaster et al, 1739-1789 525 (1979).
Quoted in McConnell, The Origins and Historical Understanding . . . , (cited in note 25, at 1469). Although McConnell says that in these words the Continental Congress was granting exemptions,id at 1468, it was at best expressing only an opinion or hope, for the revolutionary army consisted of state militias, exemptions from which could only be granted by the state governments. Richard W. Renner, Conscientious Objection and the Federal Government, 1787-1792, 38 Military Affairs 142 (December 1974).
McConnell, The Origins and Historical Understanding . . . , (cited in note 25, at 1468-69).
The provisions in the constitutions of Delaware, New Hampshire, and Vermont were worded essentially the same as the provision in the Pennsylvania Constitution of 1776: “Nor can any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent, . . . . ” Sources of our Liberties, Richard L. Perry, ed, 330 (American Bar Foundation, 1959). For the provisions in the constitutions of Delaware, Vermont, and New Hampshire, respectively, see id, 339, 365, and 383. New York’s constitution (1777) gave exemptions only to “the people called Quakers as, from scruples of conscience, may be averse to the bearing of arms . . . . ” The Federal and State Constitutions, Colonial Charters, and Other Organic Laws, Francis N. Thorpe, ed, 5:2637 (Government Printing Office, 1909). Although Massachusetts is sometimes included among those states whose constitution contained a provision exempting conscientious objectors, its wording clearly indicates that the Massachusetts provision was not designed just for conscientious objectors nor included because of the principle of religious liberty. The provision reads as follows: “Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property, according to standing laws. He is obliged, consequently, to contribute his share to the expense of this protection; to give his personal service, or an equivalent, when necessary . . . . ” See Perry (cited earlier in this note at 375).
McConnell, Free Exercise Revisionism . . . ,” (cited in note 27, at 1119).
McConnell, The Origins and Historical Understanding . . . , (cited in note 25, at 1445, 1473, 1510).
Regarding one group of pacifists in Pennsylvania, Richard MacMaster writes, “. . . Mennonites did not necessarily see the distinction between being subjects [of feudal princes] and being citizens of the more modern kind. . . . Instead of having the outlook of modern citizens [with certain rights], they seem rather to have been trading votes for pacifist privileges, much as in Europe they had traded money, in the form of special taxes and gifts to protective princes, for those privileges.” Land, Piety, Peoplehood 230 (Herald Press, 1985). Also, see Theron F. Schlabach, Mennonites, Revivalism, Modernity–1683-1850, 48 Church History 398-415 (Dec 1979).
Francis J. Corklin, Conscientious Objector Provisions: A View in the Light of Torcaso v Watkins, 51 Georgetown LJ 257 (Winter 1963), and Renner, (cited in note 39, at 142).
For examples, see MacMaster, et al, (cited in note 38, at 238, 266).
Robert C. Palmer, Liberties as Constitutional Provisions, 1776-1791, in Liberty and Community 55-56, 64-86 (Oceana Pub, 1987); Alfred H. Kelly et al, The American Constitution: Its Origins and Development 76 (W. W. Norton, 1991, 7th ed); and John P. Reid, The Concept of Liberty in the Age of the American Revolution 4 (University of Chicago Press, 1988).
Free Exercise Revisionism . . . , (cited in note 27, at 1118-19). McConnell adds that the existence of such exemptions is “fully consistent with the position in Smith . . . . ” Id at 1119.
Id at 1119.
The Origins and Historical Understanding . . . , (cited in note 25, at 1473).
Southern Quakers and Slavery: A Study in Institutional History 145-97 (Johns Hopkins Press, 1896).
For example, in 1785, members of the Mennonite Church in Virginia petitioned the Virginia General Assembly for a law that would exempt them from both serving in the military and having to pay a penalty for not doing so. In the petition they said that their ancestors had come “to America to Seek Religious Liberty,” which they had enjoyed “except by the Infliction of penalties for not bearing Arms . . . . ” MacMaster et al, (cited in note 38, at 333). For other examples, see id at 238, 266, 312, and Kenneth G. Hamilton, John Ettwein and the Moravian Church During the Revolutionary Period 255, 265-66, 283-86 (Times Pub Co, 1940).
For examples of such petitions, see MacMaster et al, (cited in note 38, at 157-59, 266-67, 332-34, 424-25). There is a possibility, however, that in some cases the failure of the pacifists to make such a claim could have been due to their not wanting to antagonize the patriots, some of whom had threatened to take the lives, houses, and property of the pacifists. For examples of such acts, see id at 220.
Charles A. Lofgren, Compulsory Military Service Under the Constitution: The Original Understanding, 33 Wm & Mary Quar 3rd ser 77-78 (1976); Leon Friedman, Conscription and the Constitution: The Original Understanding, 67 Mich L Rev 1505 (June 1969); and Arthur J. Alexander, Exemption from Military Service in the Old Dominion during the War of the Revolution,53 The Virginia Magazine of History and Biography 155-71 (July 1945). For an example of a provision granting exemptions to anyone, see the provision from the Massachusetts constitution quoted above, in note 41.
McConnell is simply wrong when he writes, “Lest the exemptions be extended too broadly, they [colonies and states] confined the exemptions to denominations or categories known or proven to be ‘conscientiously’ opposed.” The Origins and Original Understanding . . . , (cited in note 25, at 1472).
For example, in the Constitution of New Hampshire, 1784, the provisions on liberty of conscience are contained in sections IV and V, whereas the provision granting exemptions from military service to conscientious objectors appears much later in section XIII. See Sources of our Liberties,(cited in note 41, at 382-83).
McConnell, Free Exercise Revisionism . . . , (cited in note 27, at 1118).
Hamburger, (cited in note 24, at 929).
Church and State in Seventeenth and Eighteenth Century America, 7 J Law & Relig 261, n 1 (1989).
Response of an Amateur Historian and a Religious Citizen, 7 J Law & Relig 424, n 15 (1989).
Peter Brock, Pacifism in the United States: From the Colonial Era to the First World War 199-200 (Princeton University Press, 1968); R. R. Russell, Development of Conscientious Objector Recognition in the United States, 20 Geo Wash L Rev 414 (March 1952); MacMaster et al,Conscience in Crisis, (cited in note 38, at 62-63); and MacMaster, Land, Piety, Peoplehood, (cited in note 44, at 256-57), Stephen M. Krohn, Jailed for Peace: The History of American Draft Law Violators, 1658-1985 10 (1986), incorrectly says, “Four revolutionary state governments proclaimed conscientious objection an absolute right in their new constitutions.”
MacMaster et al, Conscience in Crisis, (cited in note 38, at 354-91, 523-25, 532). Not surprisingly, therefore, during the First Congress when a proposed amendment to the Constitution–one that would have granted exemptions from military service to pacifists–was being discussed, Roger Sherman said, “It is well known that those who are religiously scrupulous of bearing arms, are equally scrupulous of getting substitutes or passing an equivalent. Many of them would rather die than do either one or the other . . . . ” The Bill of Rights: A Documentary History, Bernard Schwartz, ed, 2:1108 (Chelsea House Pub’s, 1971).
MacMaster et al, Conscience in Crisis, (cited in note 38, at 532).
See Jack D. Marietta, The Reformation of American Quakerism, 1748-1783 222-48 (University of Pennsylvania Press, 1984); J. William Frost, A Perfect Freedom: Religious Liberty in Pennsylvania66-69 (Cambridge University Press, 1990); and MacMaster et al, Conscience in Crisis (cited in note 38, at 222-24, 532-35).
MacMaster, et al, Conscience in Crisis, (cited in note 38, at 222-24).
Sally Schwartz, William Penn and Toleration: Foundations of Colonial Pennsylvania, 50 Pennsylvania History, 291-95 (1983); and Frost, (cited in note 65, at 10-18).
The religious liberty provision stated that persons “shall, in no ways, be molested or prejudiced for their religious persuasion, or practice, in matters of faith and worship, nor shall they be compelled, at any time, to frequent or maintain any religious worship, place or ministry whatever.” Sources of Our Liberties, (cited in note 41, at 220).
Papers of William Penn, Richard S. Dunn and Mary M. Dunn, eds 4:321, 354-55, 392-93 (University of Pennsylvania Press, 1987).
Frost, (cited in note 65, at 17-18).
Sources of Our Liberties, (cited in note 41, at 256).
From approximately 1692 on, “the colony of Pennsylvania was no longer a Quaker enclave, but contained a wide variety of religious persuasions who claimed the rights of liberty of conscience.” Frost, (cited in note 65, at 20).
MacMaster et al, 27 Conscience in Crisis, (cited in note 38, at 27) (emphasis in original).
Melvin B. Endy, Jr., William Penn and Early Quakerism 325-26 (Princeton University Press, 1973).
Quoted in Sally Schwartz, ”A Mixed Multitude“: The Struggle for Toleration in Colonial Pennsylvania17 (New York University Press, 1987).
Quoted in McConnell, The Origins and Historical Understanding . . . , (cited in note 25, at 1447-48). Penn also said, “I always premise this Conscience to keep within the Bounds of Morality, and that it be neither Frantick nor Mischievous, but a Good Subject, a Good Child, a Good Servant, in all the Affairs of Life.” Quoted in Schwartz, A Mixed Multitude, (cited in note 75, at 17) (emphasis in original). Also, see A Collection of the Works of William Penn, comp Henry Portsmouth 2:687, 719-22. 810 (AMS Press, 1974 rep of 1726 edition).
See his “Frame of Government of Pennsylvania” (1682), in Sources of Our Liberties, (cited in note 41, at 218-20).
Free Exercise Revisionism . . . , (cited in note 27, at 1117).
Frost, (cited in note 65, at 21-22, and 170, n 48).
For the general outlines of the debate, see id, at 29-43.
MacMaster et al, Conscience in Crisis, (cited in note 38, at 28-31).
Frost, (cited in note 65, at 34-35).
Id, 36, 38.
MacMaster et al, Conscience in Crisis, 61-83, 165-74, 213-25. The Assembly actually passed a compulsory militia law in 1757, but it was vetoed by the governor. See below, notes 96-98, and accompanying text.
For all the arguments of the anti-pacifists, see Frost, (cited in note 65, at 36-38).
Hermann Wellenreuther, The Political Dilemma of the Quakers in Pennsylvania, 1681-1748, 94 Pennsylvania Magazine of History and Biography 140-47 (April 1970), and Frost, (cited in note 65, at 30, 36).
Quoted in Schwartz, A Mixed Multitude, (cited in note 75, at 166, and 164-66).
It is somewhat surprising to read that in or shortly before 1742, the Mennonites, because they realized that “there is no guarantee that if a hostile attack should strike this province, we would not . . . be compelled against our conscience to take up arms and meet the foe with weapons,” petitioned the Pennsylvania Assembly for a law exempting them from compulsory military service, but were met with the reply “that such matter is entirely beyond its authority.” Quoted in MacMaster, Land, Piety, Peoplehood, (cited in note 44, at 231).
Frost, (cited in note 65, at 38-39), and MacMaster et al, Conscience in Crisis, (cited in note 38, at 76).
Quoted in MacMaster et al, Conscience in Crisis, (cited in note 38, at 115-16). Also, see Schwartz,A Mixed Multitude, (cited in note 75, at 213).
A Dialogue between X, Y, and Z (1755), The Papers of Benjamin Franklin, Leonard W. Labaree, ed, 6:301-03 (Yale University Press, 1963).
MacMaster, Land, Piety, Peoplehood, (cited in note 44, at 247).
Frost, (cited in note 65, at 38-43).
Id at 60-73.
Id at 39, 66, and MacMaster et al, Conscience in Crisis, (cited in note 38, at 213-19, 523-30).
Frost, (cited in note 65, at 34-35).
In a sermon on “Love of Country,” the Presbyterian minister, Francis Alison, said, “All . . . should have free use of their religion, but so as not on that score to burden or oppress others.” Quoted in id at 51.
Id at 39, and MacMaster et al, Conscience in Crisis, (cited in note 38, at 78, 117-20).
Richard K. MacMaster, Neither Whig Nor Tory: The Peace Churches in the American Revolution, 9 Fides et Historia 8 (1977).
Id at 15-17.
Marietta (cited in note 65, at 226) and Brock, (cited in note 62, at 199, fn 32). For the wording of another petition that appealed to the “liberty of conscience” guaranteed in Penn’s Charter, see R. MacMaster, Neither Whig Nor Tory (cited in note 99, at 16).
Marietta, (cited in note 65, at 226).
Quoted in MacMaster et al, Conscience in Crisis, (cited in note 38, at 257. See 256-58 for account of what transpired).
Quoted in id at 263.
See above, notes 87-91 and accompanying text.
Quoted in MacMaster et al, Conscience in Crisis, (cited in note 38, at 263-264).
Id at 264-65. The group also argued that the exemption provision in the Charter was null and void because “William Penn had no Right . . . to grant Privileges further than was granted to him by the Royal Charter, and . . . the Royal Prerogative of the King of Great-Britain does not comprehend anyRight . . . to grant any Exemption from supporting the Constitution and Government to any Man or Set of Men, on any Pretence whatever . . . and therefore [such a power] could never be granted by the King to the Worthy Proprietor who granted the Charter of Privileges.” Id at 264.
Quoted in MacMaster, “Neither Whig Nor Tory,” (cited in note 99, at 17).
Marietta, (cited in note 65, at 226).
The entire provision reads as follows: “That all men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences and understanding: And that no man ought or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any ministry, contrary to, or against, his own free will and consent: Nor can any man, who acknowledges the being of God, be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments or peculiar mode of religious worship: And that no authority can or ought to be vested in, or assumed by any power whatever, that shall in anycase interfere with, or in any manner controul, the right of conscience in the free exercise of religious worship.” Constitution of Pennsylvania (1776), in Sources of Our Liberties, (cited in note 41, at 329).
Id at 330. See MacMaster, et al, Conscience in Crisis, (cited in note 38, at 224).
Frost, (cited in note 65 at 65).
Marietta, (cited in note 65, at 227); MacMaster et al, Conscience in Crisis, (cited in note 38, at 222-23, 282-84); and Frost, (cited in note 65, at 62-63, 67).
MacMaster et al, Conscience in Crisis, 223. The same kind of law for the same sort of reason was also passed by the states of Maryland, Virginia, and North Carolina. Id at 224-25, 331-32.
Id at 293, 523, 529, and Hamilton, (cited in note 53, at 225-317).
Frost, (cited in note 65, at 68).
A 1778 petition from the Quaker Meeting for Sufferings for Pennsylvania and New Jersey, quoted in MacMaster et al, Conscience in Crisis, (cited in note 38, at 438).
Frost, (cited in note 65, at 72) (emphasis added).
MacMaster et al, Conscience in Crisis, (cited in note 38, at 531).
Frost, (cited in note 65, at 75).
Warner Mifflin, “Letter to Henry Drinker” (June 27, 1792), in Life and Ancestry of Warner Mifflin,comp Hilda Justice 105 (Ferris & Leach, 1905).
Frost, (cited in note 65, at 74).
For example, the minority report issued by the Antifederalists at the Pennsylvania ratifying convention included this passage: “Secondly, the rights of conscience may be violated as there is no exemption of those persons who are conscientiously scrupulous of bearing arms. . . . the framers of our State Constitution made the most express and decided declaration and stipulations in favor of the rights of conscience; but now, when no necessity exists, those dearest rights of men are left insecure.” Quoted in John B. McMaster and Frederick D. Stone, eds, Pennsylvania and the Federal Constitution, 1787-1788 (480-81) (Da Capo Press, 1970 rep of 1888 ed).
All three proposals were identically worded as follows: “That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead.” The Debates in the Several State Conventions on the Adoption of the Federal Constitution . . . , Jonathan Elliot, ed, 3:659. 4:244, and 1:335 (Burt Franklin, 1965 rep of 1888 ed, 5 vols).
Annals of Cong 434 (1789) [1789-1824]. Although the wording of Madison’s proposal is somewhat different from that of the proposal submitted by the states, the difference is of no significance with respect to the issue at hand. Madison twice promised to submit a bill of rights–first, in order to get the Virginia ratifying convention to vote for the proposed constitution and, second, in order to get himself elected as a member of the first Congress. See Papers of James Madison, 11:297, and Miller, (cited in note 21, at 119-21). As to why he included a CO provision in his proposed bill of rights, he may have done so because he personally favored such a provision or simply because it was among the provisions included in the list submitted by his own state of Virginia. There is, however, nothing in the record to support McConnell’s claim that Madison’s action was the result of his belief that freedom of religion required exemptions from generally applicable laws “in some circumstances.” McConnell, The Origins and Historical Understanding . . . (cited in note 25, at 1454). On this point, see Hamburger, (cited in note 24, at 927).
See above, notes 12-64 and accompanying text.
See House of Representatives Debates, July-August, 1789, in The Bill of Rights, (cited in note 63, at 2:1107-09, 1126-27); Renner, (cited in note 39, at 142-43); Arlin M. Adams and Charles J. Emmerich, A Nation Dedicated to Religious Liberty 63-64 (University of Pennsylvania Press, 1990); and Berns, (cited in note 24, at 54-55). McConnell erroneously says that the more radical version was approved by the House. The Origins and Historical Understanding . . . , (cited in note 25, at 1500).
M. Malbin, (cited in note 24, at 39-40, fn 4).
The Bill of Rights, (cited in note 63, at 2:110). Chester J. Antieau says that Benson’s views were “more representative of his age” than were the views of those who thought that persons had a rightto be free of military service. Rights of Our Fathers 53-54 (Coiner Pub’s Ltd, 1968).
Annals of Congress 434 (1789).
Nevertheless, as early as 1795, at least one Quaker was arguing that the free exercise clause of the First Amendment guarantees to religious conscientious objectors a right not to bear arms. “A Letter from One of the Society of Friends relative to the Conscientious Scrupulousness of its Members to Bear Arms, 1795,” In Conscience in America: A Documentary History of Conscientious Objections in America, 1757-1967, Lillian Schlissel, ed, 49-54 (E. P. Dutton, 1968).
The Origins and Historical Understanding . . . , (cited in note 25, at 1501).
Lofgren (cited in note 55, at 83).
The Origins and Historical Understanding . . . , (cited in note 25, at 1501).
MacMaster et al, Conscience in Crisis (cited in note 38, at 534-35).
See Jacobson v Massachusetts, 197 US 11, 29 (1905). Arver v United States, 245 US 366 (1918);United States v Macintosh, 283 US 605, 623-25 (1931); Hamilton v Regents of the University of California, 293 US 245 (1934); In re Summers, 325 US 561 (1945); Dickinson v United States, 325 US 561 (1945); and Johnson v Robison, 415 US 361, 375, n 14 (1974).
Antieau, (cited in note 130, at 53).
Giannella, (cited in note 19, at 1411-12).
The former had a provision that prohibited the government from compelling persons “to do or suffer any other Act or thing, contrary to their religious Persuasion,” and the latter had a clause protecting “the right of conscience in the free exercise of religious worship.” Sources of Our Liberties, (cited in note 41, at 256, 329).
Bradley, (cited in note 24, at 277).
10 JLREL 367

Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)

“There appears to be a strong argument from the Clause’s development in the First Congress, from its origins in the post-Revolution state constitutions and pre-Revolution colonial charters, and from the philosophy of rights to which the Framers adhered, that the Clause was originally understood to preserve a right to engage in activities necessary to fulfill one’s duty to one’s God, unless those activities threatened the rights of others or the serious needs of the State.” Church of Lukumi Babalu Aye v. City of Hialeah, 124 L. Ed. 2d 472, 518 (U.S. 1993)

Religious Freedom Restoration Act: Hearing on S. 2969 Before the S. Comm. on the Judiciary, 102nd Cong. 100 (1992)

Religious Freedom Restoration Act: Hearing on S. 2969 Before the S. Comm. on the Judiciary, 102nd Cong. 100 (1992) (statement of Mark E. Chopko, General Counsel, United States Catholic Conference, Screen Actors Guild):

But yet—my next point—we do have concerns borne of long, sometimes bitter, and always invariably expensive experience in
the public arena, and those areas I would isolate into two issues.
 One is the issue of protecting unborn life. I am not here to tell you that our concern is about reversing Casey and Roe. I am here to talk to you in light of the constitutional law after Planned Parent-
hood v. Casey and whether RFRA can be used to upset even moderate abortion regulation.” – Pg. 100

View Entire PDF: Religious Freedom Restoration Act: Hearing on S. 2969 Before the S. Comm. on the Judiciary, 102nd Cong. 100 (1992)


Religious Freedom Restoration Act of 1991: Hearing on H.R. 2792 Before the H. Comm. on the Judiciary, 102nd Cong. 34 (1992)

Religious Freedom Restoration Act of 1991: Hearing on H.R. 2792 Before the H. Comm. on the Judiciary, 102nd Cong. 34, 42-43 (1992) (statement of Mark E. Chopko, General Counsel, United States Catholic Conference, Screen Actors Guild):

[W]e do have concerns borne of long and sometimes bitter, divisive and expensive experience in the public arena in the area of abortion, in the area of public services. Whether the Religious Freedom Restoration Act if enacted in its present form will be used to promote access to abortion is a serious issue. The details are pro- vided in my written testimony and in the commentary, and I will not restate those details here. Claims have been, are being and will continue to be made that religious practices, however they may be understood, justify access to abortion. There is no question that abortion is within the scope of activities which the people who drafted this legislation intend will be offered into the courts, and it is certainly, if you believe the public statements of those drafters, a certain number of them are expected to succeed. The risk that abortion on account of religion can be obtained under the Religious Freedom Restoration Act is one the conference believes cannot be ignored.” – Pg. 34


Under the current state of the legislative record, abortion claims brought under H.R. 2797 could succeed. As a matter of constitutional construction, we would agree with Professor McConnell and his colleagues that the Court is not likely to re-create constitutional abortion under a different right if it reverses Roe v. Wade. If there is no privacy right, it is unlikely there will be a constitutional free exercise right to abortion. Whether the Supreme Court allows abortion claims under H.R. 2797 depends on legislative intent, not judicial predilictions. We are writing a statute, not the Constitution. This Court defers to legislatures, especially when it says these issues belong in the political realm anyway. Even if only a few claims to obtain abortions do succeed under H.R. 2797, what restraint will remain on district and state attorneys to deny abortions to others who offer affidavits conforming their claims, beliefs, and motions to the prior successful claims? These claims will be numerous and far-reaching in their impact.” – Pg. 42


The lives of the unborn are too important to be put at risk under H.R. 2797. If as we foresee, H.R. 2797 creates a wide alternative route to the Court’s abortion jurisprudence for those who favor abortion on demand, an amendment is needed. If, as some supporters of H.R. 2797 so confidently insist, these abortion claims are doomed to failure anyway, there is no reason why they cannot be eliminated from the bill.” – Pg. 43

View Full PDF: Religious Freedom Restoration Act of 1991: Hearing on H.R. 2792 Before the H. Comm. on the Judiciary, 102nd Cong. 34 (1992)