Academic journal article William and Mary Law Review

Why the Congress Was Wrong and the Court Was Right - Reflections on City of Boerne V. Flores

Academic journal article William and Mary Law Review

Why the Congress Was Wrong and the Court Was Right - Reflections on City of Boerne V. Flores

Article excerpt

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 enjoyed my brewed reward.(3) Moreover, I did not leave the decision in Flores entirely to chance and the exertions of others. I happily provided Marci Hamilton, counsel for the City of Boerne, with some suggestions along the way, and she in turn, was generous enough to moot her Supreme Court argument in front of a group of my colleagues and seminar students at George Washington. One's victory, however, is always another's defeat, and given my personal and professional connections to both sides, I quickly began to feel pangs of sweet sorrow. After all, sunset for RFRA meant darkness for religious liberty. Or did it? The more I concerned myself with that question, the more my mood gave way to genuine bemusement. As the spin accelerated in the aftermath of Flores,(4) I developed a sense that I had been a bit player in, and active witness to, a contemporary constitutional pseudotragedy.

This Essay proceeds in three parts. The first part chronicles my place and that of others in commentary, prediction, and professional efforts concerning the constitutionality of RFRA. Contrary to what many of its proponents believed, RFRA was doomed from the start. The second part analyzes the reasons for my ambivalence about RFRA. In short, I believe that Employment Division v. Smith(5) is a bad decision, but I also believe that Congress erred in trying to correct Smith by legislation. Moreover, this second part explains why I think that the presence or absence of RFRA, or some potential RFRA substitute, will have few practical consequences for religious liberty. Far more than its proponents are likely to admit, RFRA has been a failure. The third part turns to the grand and overarching question presented by application of RFRA to the states. Rarely does Marbury v. Madison(6) come face-to-face with McCulloch v. Maryland,(7) but this showdown occurred in Flores. Although Marbury and McCulloch are not ordinarily in explicit tension, exercise of congressional power under the Fourteenth Amendment offers the distinct possibility of such conflict, In Flores, the Court identified and resolved that struggle in a way that demonstrated fidelity to longstanding attributes of constitutional structure.

I. WE TOLD YOU SO

Much as I know about the fall that follows pride, I cannot resist claiming some credit for being out front on this one. I expressed doubt about the constitutionality of RFRA the way Chicagoans were once reputed to vote--early and often. Congressman Solarz originally proposed RFRA in 1990,(8) in the immediate wake of Smith. In early 1992, while the Act was pending in Congress, I wrote an article asserting that RFRA, as applied to the states, was unlikely to survive Supreme Court review.(9) I repeated that assertion in testimony on May 14, 1992, before the Subcommittee on Civil and Constitutional Rights of the House Judiciary Committee.(10)

RFRA became law in the fall of 1993.(11) I must confess that by the time I prepared my submission to the Montana Law Review symposium on RFRA,(12) held in the fall of 1994, I had begun to hedge. A number of my friends in the community of religious liberty advocates were involved deeply in the passage of RFRA, and I was not entirely comfortable trashing their handiwork. Less personally and more substantively, I thought that the Court had decided Smith incorrectly and that the decision was a worthy candidate for prompt reconsideration. Consequently, my symposium contribution restated my constitutional doubts about RFRA(13) but suggested a narrowing construction that might save it. In particular, I argued that courts should construe the Act as having erased Smith and having returned free exercise law to where it stood on the eve of Smith, rather than to its high water mark of some twenty years before. …

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