THE U.S. SUPREME COURT declared June 25 that the Religious Freedom Restoration Act is unconstitutional. One might think from the high-pitched responses of many religious groups that we now face a grave danger that religious liberty will no longer be protected. This is simply not so.
The truth is that the court's decision in the City of Boerne v. Flores (in which I served as lead counsel for Boerne, Texas) was inevitable. In 1990 the Supreme Court held in Employment Division v. Smith that Oregon had not violated the First Amendment when it fired and refused unemployment benefits to two drug counselors for smoking peyote, even if the peyote was smoked during a religious service. The court declared that, in general, neutral and generally applicable laws would not violate the Constitution even if they resulted in incidental burdens on religion. In the Smith case the court restated its first free-exercise decision, which dates back over 100 years and established precedent for the court's subsequent free-exercise cases. These ensuing cases rarely have invalidated generally applicable laws affecting religious conduct.
Within days of the Smith decision, a group of lobbyists for a new coalition of organized religions--the Coalition for the Free Exercise of Religion--descended on Congress and demanded that the Supreme Court's ruling be overturned. They drafted a law that, by regulating every law (local, state and federal), mimicked the Constitution's scope, and that required governments to DrOve a compelling interest and the least restrictive means whenever a law substantially burdened a religious practice. The bill marked a sea change in the protection afforded to religious conduct that is otherwise unlawful.
With the appearance of millions of votes at stake, and unable to resist jumping onto a bandwagon called the "Religious Freedom Restoration Act," Congress overwhelmingly complied with the coalition's request. Although it held hearings in which Smith was castigated, and anecdotes of religious persecution were retold, Congress did not engage in any meaningful examination of the state of religious liberty in the U.S. Its sole intent was to overturn the Supreme Court's decision. Congress was now the "savior" of religion. President Clinton also praised Congress for overturning the Supreme Court's decision.
The hitch, of course, is that in 1803 the Supreme Court rightly ruled that it had the last word on the meaning of the Constitution. The branch most insulated from politics and interest groups has been entrusted with the responsibility of interpreting the Constitution--the supreme law of the land and the people's pact of trust with their government. Congress, constantly engaged in open political struggle, cannot alter the meaning of the Constitution at will. Ratifying changes to the Constitution requires an intentionally arduous state-by-state process, not a simple majority vote in Congress. On June 25 that is exactly what the court stated, and its ruling should have come as no surprise.
Since the court's decision to invalidate RFRA was announced, however, organized religion has taken to the airwaves and the press, declaring dire consequences for religious liberty. Religious groups are promising to pressure state legislatures, to attempt more narrowly tailored federal law and even various constitutional amendments. They claim that "all" they want is to turn the court's clock back to the pre-Smith era, as though that is all RFRA did. But the standard encoded in RFRA is significantly more protective of religion and is significantly more of a burden on government than the Supreme Court has ever recognized. Representative Henry Hyde (R., Ill.) made it absolutely clear during the hearings on the act that RFRA did not merely give religion what it had before Smith but rather much, much more. The act dramatically shifted the balance of power between church and state in favor of the churches to an extent never before witnessed in this country. …