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
 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-  (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  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;  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  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  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  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,  “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  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  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.
 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  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,  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  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  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.
 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.
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.
University of Pennsylvania Journal of Constitutional Law
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.
Prior History: 
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
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
BRIEF FOR PETITIONER
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  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).
CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED
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.
STATEMENT OF THE CASE
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  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.  ”
(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  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  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: 
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  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  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  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),  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  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  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.
SUMMARY OF ARGUMENT
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,  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  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).  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,  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.  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).
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.  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  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  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  the crisis of the day.” New York v. United States, 505 U.S. 144, 187 (1992).
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.  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  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  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,  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  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  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  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  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  — 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  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).
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  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  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  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  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  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  it. Thus, RFRA directs courts to enforce wholly extra-constitutional “rights,” moving it well beyond the preserve of Section 5 power.
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,  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.
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  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.
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  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.
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.  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  “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),  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  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.  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  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  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  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  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  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  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  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  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  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.
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  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  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  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  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  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);  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  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  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  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.  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  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, 
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
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
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
[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
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
“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) (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
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