The Global Dimension of RFRA
Neuman, Gerald L., Constitutional Commentary
A multi-faceted controversy is currently raging over the constitutionality of the Religious Freedom Restoration Act of 1993 (RFRA),(1) the federal legislative response to the Supreme Court's decision in Employment Division v. Smith.(2) In Smith, the Supreme Court eliminated most constitutional claims to religious exemption from generally applicable laws, abandoning a prior practice of subjecting such claims (verbally at least) to a compelling interest test. The majority asserted that the Free Exercise Clause does not require state or federal governments to accommodate conscientious objectors to compliance with generally applicable laws. Congress, in turn, emphasized that "laws 'neutral' toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise," and acted to "restore the compelling interest test" as a matter of statutory right.(3)
Congress's authority to enact such a statute, particularly as applied to generally applicable laws of the states, has been disputed. The legislative history of RFRA indicates congressional belief that its interference with state laws could be justified as an exercise of enforcement authority under Section 5 of the Fourteenth Amendment. Several commentators have questioned this justification, arguing that Congress's reinstatement of a vision of religious liberty that the Supreme Court had just rejected stretches Section 5 authority beyond tolerable limits. The question of the source of congressional authority has acquired further salience as a result of the Supreme Court's decision in United States v. Lopez,(4) reasserting the doctrine of enumerated powers as a guide to the interpretation of the Commerce Clause and invalidating a purported congressional exercise of commerce power for the first time since the New Deal. The Court has accepted a case raising such a challenge to RFRA in its current term.(5)
Thus far, analysts have generally assumed that Section 5 provides the only possible basis for a broad federal intervention to protect religious dissenters across a wide range of state governmental activities. Fanciful defenses under the Commerce Clause might have been framed before Lopez, but they would clearly fail today.
Characteristically, constitutional commentators have neglected the global dimension of religious liberty. Religious freedom is a matter of international concern, and the United States has recently adhered to a major human rights treaty that addresses the question of religious exemptions. Consequently, an overlooked source of authority for RFRA, or for a RFRA-like statute, lies in Congress's power to implement the treaty obligations of the United States. The main purpose of this essay is to call attention to this perspective on the RFRA debate. If it also helps sensitize constitutional lawyers to the United States, international human rights obligations, then that is all to the good.
I. RFRA AND ITS PROBLEMS
As readers probably recall, the majority opinion in Smith offered a surprising reanalysis of the Supreme Court's Free Exercise Clause cases. Alfred Smith had been denied unemployment compensation after having been fired from his job due to his use of peyote as a matter of ritual within the Native American Church, in violation of Oregon law.(6) The majority held that his violation of a generally applicable criminal statute provided an adequate basis for denying him unemployment compensation, and that his religious beliefs did not entitle him to any exemption from the statute. Religiously motivated actions are constitutionally shielded against laws that "ban [them] only when they are engaged in for religious reasons, or only because of the religious belief that they display,"(7) but not against generally applicable prohibitions. The majority declined to examine whether the denial of a religious exemption was necessary to the achievement of a compelling government interest, the standard articulated in numerous cases since Sherbert v. …