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I. Introduction

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

III. The Religious Freedom Restoration Act Violates the Establishment Clause

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

IV. RFRA Represents Ultra Vires Congressional Action

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


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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

V. Conclusion

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

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

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