The global dimension of RFRA.

• Author: Neuman, Gerald L.
• Position: Religious Freedom Restoration Act

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.

1. 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. Verner(8) in 1963. The Court reduced the Sherbert doctrine to a narrow line of cases in which a government benefits program includes a system of individualized exemptions but does not extend it to a religious hardship."(9) It distinguished cases like Wisconsin v. Yoder(10) as presenting a "hybrid situation" implicating both the free exercise of religion and another constitutional right." Having disposed of these holdings, the majority dismissed other applications of the compelling interest test as dicta, and maintained that a society as diverse as the United States would be inviting anarchy if it made government demonstrate to the courts the necessity for denying claims to religious exemption.(12)

   The Court's rough handling of precedent and its withdrawal of a guarantee of accommodation to religious dissenters prompted an extraordinary political reaction.(13) Religious groups mobilized bipartisan support in Congress for a statutory "restoration" of the status quo as they perceived it to have existed before Smith. RFRA prohibits both state and federal governments from "substantially burden[ing]" a person's exercise of religion, unless the imposition of that burden is the least restrictive means of furthering a compelling governmental interest.(14) It provides for judicial relief against prohibited burdens, and places the burden of proof on government in the application of the compelling interest test.

   For evident technical reasons, RFRA operates differently in the sphere of federal burdens and state burdens. RFRA creates a statutory right to religious exemption from the implementation of federal statutes, and creates statutory exemptions from prior federal statutes, but it cannot successfully bar subsequent federal statutes from imposing unnecessary burdens. Instead, it adopts a rule of construction by which subsequent statutes must explicitly reference RFRA in order to exclude its application.(15) In the sphere of state law, in contrast, federal supremacy permits RFRA (if valid) to create an entitlement to exemptions from all state laws, current or future.

   RFRA has been hailed as a historic vindication of the United States' commitment to religious liberty, and condemned as a dangerous interference with judicial authority and states, rights. To some of RFRA's detractors, the Supreme Court's decision in Smith expressed the correct understanding of religious liberty, and RFRA affords religious objectors an unjustifiable privilege.(16])Such criticism applies potentially to the use of RFRA to create religious exemptions in the federal sphere as well as in the state sphere. At the extreme, RFRA might run into Establishment Clause problems by overstepping the bounds of Congress's discretion to accommodate religious needs;(17) in less extreme instances, RFRA might be deemed an imprudent use of Congress's lawful power to accommodate. The severity of the problem may depend on how the courts interpret RFRA's "compelling interest" test.(18)

   Another broad criticism of RFRA relies on the Smith majority's institutional critique of the use of the courts to balance the claims of religious conscience and compliance with public policy. Arguably legislatures are better suited than courts to identifying the occasions on which general policies may be safely or conveniently waived for the accommodation of religious objectors. Some think that Smith's disclaimer of institutional competence renders RFRA a violation of separation of powers, even as applied to federal burdens.(19)

   The most intriguing critique of RFRA, however, concerns Congress's power to create religious exemptions to state legislation. One may concede that the power to enact federal laws includes the power to mitigate the burdens those laws place on exercise of religion, and also that many instances of state regulation lie in the overlap between state and federal competence where Congress has the authority to modify state policies.(20) But the comprehensive character of RFRA suggests that a justification stitched together out of specific congressional powers over specific subject matters independent of religion may fail to cover all of RFRA's consequences. This appears particularly likely after the Supreme Court's emphasis in Lopez on preserving the local criminal law as a traditional field of state legislative power. Accordingly, critics and defenders alike have understood that RFRA must rest on some federal power to protect the exercise of religion itself. In accordance with RFRA's legislative history, they have focused on Congress's enforcement power under Section 5 of the Fourteenth Amendment as the available candidate. Critics maintain that RFRA's approach to religious liberty is fatally inconsistent with the Supreme Court's authoritative exposition of the Free Exercise Clause in Smith; defenders offer broader and narrower accounts of how Smith and RFRA can be reconciled.

   RFRA thus revives the fundamental controversy over the meaning of Congress's power to enforce the Fourteenth Amendment, ignited by the majority and dissenting opinions in Katzenbach v. Morgan.(21) Justice Brennan's majority opinion in Morgan offered two alternative means by which Congress could justify outlawing a state governmental practice that the Court had upheld under the Fourteenth Amendment. Under what has come to be known as the "remedial" alternative, Congress might properly find that a federal prohibition, not itself required by the amendment, was an appropriate means of preventing future violations of the amendment.(22) Under the "substantive" alternative, Congress might legitimately find, as a matter of fact or as a matter of law, that a practice that the Court had upheld actually violated the amendment.(23) The latter alternative has been highly controversial, due to its apparent tension with the independent judicial duty to interpret the Constitution, articulated since Marbury v. Madison, and no case since Morgan has relied upon it.

   Supporters...