RFRA-Vote Gambling: Why Paulsen Is Wrong, as Usual

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Supreme Court currents are no less treacherous to navigators than are river currents -- and, as Michael Paulsen himself has previously pointed out, RFRA shares more than a linguistic resonance with a river.(1) Unfortunately, this time Paulsen has let himself be fooled by the prevailing political winds into believing that there will be smooth sailing for his favorite statute despite the swirling eddies ahead. He is altogether too confident of a favorable result.

Although I have no wagers, public or private (and I am shocked -- shocked! -- to find gambling in this establishment) on the outcome of Boerne v. Flores, I want to use my editorial prerogative to take issue with my colleague's predictions. Indeed, he seems to have things exactly backward.

I start with the liberal wing of the Court, and the Justices Paulsen seems to be most doubtful of. Justices Ginsburg and Breyer. Together with Justice Souter, they would support RFRA for at least two independent reasons. First, I am more confident than Paulsen that all three would vote to overturn Smith; they believe that RFRA incorporates a correct interpretation of the Free Exercise Clause. This is a good bet from the outset, Smith supporters are few and far between. Among religion law scholars, for example, opposition to Smith is one of the few issues on which the left and the right generally agree. RFRA itself passed Congress by an overwhelming (and strongly bi-partisan) margin. Accommodation of religion can be viewed as either protective of religion (in which case it appeals to many conservatives) or protective of individual liberty (in which case it appeals to many liberals). The combination is almost unbeatable: only a few iconoclasts like me find Smith persuasive.(2)

Moreover, all three liberal Justices are likely to support a reasonably broad Morgan power, and thus to allow Congress some discretion even were Smith correctly decided. In particular, they would likely support RFRA as a prophylactic measure designed merely to prevent intentional religious discrimination, which is banned by the First Amendment. They thus need not reach the interesting question that Justice O'Connor might have to consider about whose view of the Fourteenth Amendment Congress is entitled to consult. (I'll get to that question later.) I would count them as three sure votes to affirm.

Paulsen is too sure of the votes of the three conservative Justices, however. He argues that any attack on RFRA would require them to launch a jihad against Morgan. But these three Justices have already launched their jihad against congressional power, and destroying Morgan would fit right in. In United States v. Lopez,(3) in New York v. United States,(4) and in Seminole Tribe v. Florida,(5) they abandoned prior precedent in order to keep Congress within strict bounds. Add to this their support (or, in the case of Justice Thomas, presumptive support) for the result in Smith, and it seems highly unlikely that any of them will vote to uphold the congressional attempt to nullify it. Paulsen's ingenious suggestions on how to uphold RFRA while simultaneously distinguishing Smith, and still keeping the section five power within bounds, are just a little too clever for these straightforward federalists. Count three votes to reverse the lower court and invalidate RFRA.

And what of the middle? Paulsen is right to waffle on Justice Stevens, and he is right about the reasons. Justice Stevens thinks Smith is rightly decided, and seems to think that accommodation is affirmatively unconstitutional under the Establishment Clause. He may be especially concerned to the extent that RFRA protects religious organizations, as such, rather than individual believers. Nevertheless, he also seems, at least these days, to support a very broad power under Morgan. (He was not always so sanguine about congressional power. his concurrence in Fitzpatrick v. Bitzer suggested pretty strict limits on Congress's power to redefine rights using section five. …