William and Mary Law Review

Professional publication covering law.

Articles from Vol. 39, No. 3, February

Ad Hoc Adjudication: People V. Champion, Another Confusing Element in the Turmoil Following Minnesota V. Dickerson
Picture two incidents separated by more than two hundred years, but uniquely similar: a government search of a private citizen suspected of committing a crime. A writ of assistance, similar to a modern search warrant but affording greater police discretion,...
City of Boerne V. Flores: A Landmark for Structural Analysis
I. INTRODUCTION As the representative of the City of Boerne, Texas in City of Boerne v. Flores,(1) the Supreme Court case invalidating the Religious Freedom Restoration Act of 1993 (RFRA or the "Act"),(2) I had the good fortune to discuss the...
Conceptual Gulfs in City of Boerne V. Flores
It is chancy business for a lawyer who has lost a case to offer scholarly commentary on that case. The line between criticism and whining may be thin. Yet that lawyer also has the advantage of having spent much time investigating and thinking about...
Freedom from Persecution or Protection of the Rights of Conscience? A Critique of Justice Scalia's Historical Arguments in City of Boerne V. Flores
In City of Boerne v. Flores,(1) the Supreme Court invalidated the Religious Freedom Restoration Act (RFRA or the "Act"),(2) on the ground that it exceeded Congress's power to "enforce" the provisions of the Fourteenth Amendment(3) RFRA would have...
How Not to Challenge the Court
Congress should have known better, so should the Clinton White House. By requiring a compelling justification for governmental conduct burdensome of religion and thereby "overturning" Employment Division v. Smith,(1) Congress and the White House--through...
Judicial Supremacy and the Settlement Function
In City of Boerne v. Flores,(1) the Supreme Court repeats the familiar proposition that it is the province and duty of the judiciary "to say what the law is."(2) But the Court also says that Congress has "the duty to make its own informed judgment"...
Justice O'Connor's Dilemma: The Baseline Question
Many commentators view City of Boerne v. Flores,(1) in which a divided Supreme Court struck down the Religious Freedom Restoration Act of 1993 (RFRA),(2) as a major defeat in the battle for religious freedom in the United States.(3) Be that as it...
Losing Jerusalem - RFRA and the Vocation of Legal Crusader
Even the mere sound of the name Jerusalem must have had a glittering and magical splendour for the men of the eleventh century which we are no longer capable of feeling. It was a keyword which produced particular psychological reactions...
Rfra
What a refreshing opinion! It matters not whether one approves or disapproves of the strict neutrality standard of religious freedom Justice Scalia laid down in Employment Division v. Smith.(1) I have long been sympathetic to the argument that...
The Current State of the Peremptory Challenge
The peremptory challenge,(1) once defined by the U.S. Supreme Court as a challenge "exercised without a reason stated, without inquiry and without being subject to the court's control,"(2) no longer exists in the American judicial system.(3) In Batson...
The Federalism Implications of Flores
The Supreme Court's decision in City of Boerne v. Flores(1) that the Religious Freedom Restoration Act of 1993 (RFRA or the "Act")(2) is unconstitutional was not in itself particularly surprising.(3) Moreover, the Court's finding that Congress had...
The Free Exercise of Religion after the Fall: The Case for Intermediate Scrutiny
I. INTRODUCTION In City of Boerne v. Flores(1) the Supreme Court struck down the Religious Freedom Restoration Act of 1993(2) (RFRA or the "Act"), at least insofar as the Act is applied against state and local governments.(3) For the moment,...
The Religious Freedom Restoration Act Is a Constitutional Expansion of Rights
For almost a half century since Brown v. Board of Education,(1) conservatives have railed against liberal judicial activism.(2) Republican presidential candidates from Richard Nixon to Bob Dole have campaigned against the Court and have excoriated...
Two Section Twos and Two Section Fives: Voting Rights and Remedies after Flores
My favorite book review of all time appeared in Field and Stream and concerned Lady Chatterley's Lover: [T]his fictional account of the day-by-day life of an English gamekeeper is still of considerable interest to out-door-minded readers,...
Two Versions of Judicial Supremacy
The easiest way to defend the Religious Freedom Restoration Act's (RFRA)(1) constitutionality was to establish the "substantive" interpretation of Congress's power under Section 5 of the Fourteenth Amendment ("Section 5").(2) According to that interpretation,...
Why Now Is Not the Time for Constitutional Amendment: The Limited Reach of City of Boerne V. Flores
I. INTRODUCTION When the Supreme Court eviscerated the protection of the Free Exercise Clause in Employment Division v. Smith,(1) religious groups and individuals dismayed by the decision chose to pursue statutory relief rather than a constitutional...
Why the Congress Was Wrong and the Court Was Right - Reflections on City of Boerne V. Flores
Despite my occasional alliance with forces hostile to the Religious Freedom Restoration Act (RFRA or the "Act"),(1) City of Boerne v. Flores(2) provoked me to mixed feelings. True enough, I wagered a case of Montana beer on the outcome, and I thoroughly...