Antidisestablishmentarianism: why RFRA really was unconstitutional.

• Date: 01 August 1997
• Author: Rubenfeld, Jed
• Published date: 01 August 1997
• Author: Rubenfeld, Jed

Two months ago, the Supreme Court struck down the Religious Freedom Restoration Act of 1993 (RFRA),(1) handing down its most important church-state decision, and one of its most important federalism decisions, in fifty years. Through RFRA, Congress had prohibited any state actor from "substantially burden[ing] a person's exercise of religion" unless imposing that burden was the "least restrictive means" of furthering "a compelling governmental interest."(2) RFRA was a response to Employment Division, Department of Human Resources of Oregon v. Smith,(3) in which the Supreme Court abandoned the very same compelling interest test that RFRA mandated. Smith, overturning decades-old precedent, held that a law burdening religious practices is constitutional so long as it is a law of general applicability, not targeting religion or any particular religious practices as such.(4) RFRA, in effect and by design, was enacted to "reverse" Smith.(5)

But how could Congress displace the Supreme Court on a matter of constitutional law? According to the law's supporters,(6) the answer lay in section 5 of the Fourteenth Amendment,(7) which empowers Congress to "enforce" the free exercise guarantee as it applies against the states.(8) This answer was buttressed by a line of voting rights cases dating back to 1966, in which the Supreme Court upheld under section 5 federal statutes banning states from engaging in certain practices despite the fact that the Court itself had previously held the banned practices constitutional.(9) Reasoning that RFRA too merely ratcheted up states' Fourteenth Amendment duties beyond the judicially determined constitutional minimum, most of the lower courts confronting RFRA had found that the statute fell within the legitimate scope of Congress's section 5 powers.(10)

The Supreme Court disagreed. It held that RFRA was an attempt to "change," rather than to "enforce," the protections of the Fourteenth Amendment,(11) whose meaning the judiciary alone has the ultimate power to determine.(12) But the Court did not overrule the voting rights cases. Rather, it distinguished them, holding that Congress may sometimes "prohibit[] constitutional state action in an effort to remedy or to prevent unconstitutional state action," but only when the "means" used are "proportionate to [the] ends."(13) RFRA, the Court concluded, lacked such "proportionality."(14)

Boerne will undoubtedly provoke considerable future debate about the proper scope of Congress's section 5 powers and the soundness of the Court's "proportionality" test. A particularly lively debate will probably develop over the extent to which a modified RFRA, more narrowly tailored or better supported by the kind of findings the Court deemed most pertinent,(15) might be enacted that would pass constitutional muster. Already RFRA's chief supporters have urged Congress to reenact RFRA's protections for religion by compiling a more "careful record" or by invoking different bases of congressional power.(16) In this debate over the reach of section 5 and other grants of federal legislative power -- the same debate that engrossed commentators on RFRA before the statute reached the Court(17) -- a more important point win be missed.

RFRA violated the Establishment Clause, and a new RFRA modified along the lines suggested above would also violate the Establishment Clause. It is not, however, as some have argued, that RFRA was so protective of religion that it amounted to an establishment in its own right.(18) But if RFRA did not establish religion, how could it have violated the Establishment Clause? By seeking to dictate church-state relations.

Although many have forgotten it, the First Amendment, under which Congress can "make no law respecting an establishment of religion,"(19) does not only prohibit Congress from establishing religion; it prohibits Congress from dictating to the states how to legislate religion. The First Amendment excludes Congress from an entire legislative subject matter. Congress may not dictate a position on religion to individuals, and it may not dictate a position on religion to the states.

RFRA did so. RFRA was the first-ever direct effort by Congress to prescribe a regulatory framework governing church-state relations for the country. It marked a massive, unprecedented shift in the triangular relation among the federal government, the state governments, and religion. It was a law quintessentially respecting establishment: RFRA was a congressional effort to dictate the terms of religious neutrality to which state law must conform.

But RFRA not only sought to regulate a subject matter from which Congress is expressly excluded. RFRA was also disestablishing. It required states to abolish the favoritism of majority religious practices that their laws of general applicability inevitably effect. In this way, RFRA violated the First Amendment's specific antidisestablishmentarian requirement.(20) RFRA would therefore have been unconstitutional even if it had fallen within Congress's section 5 powers, and it will still be unconstitutional if reenacted along the lines its supporters now propose.

Disabling Congress from dictating church-state relations is not a matter of protecting state sovereignty, in the sense of carving out a domain in which states are to have supreme legislative authority. If Congress could dictate church-state relations, even in the name of religious diversity and religious neutrality, Congress would have the power to intercede directly and profoundly into the nation's religious life.(21) Paradoxical though it may seem, antidisestablishmentarianism is essential to the fundamental constitutional separation of religion and government.

Part I below addresses the meaning of "respecting" establishment and explains First Amendment antidisestablishmentarianism. Part II explains how RFRA is a law respecting and in fact disfavoring establishment. Part III explains why section 5 of the Fourteenth Amendment, no matter what its outer boundaries may be, could not make RFRA -- or a new version of RFRA modified in light of Boerne -- constitutional. Part IV adds a postscript on Employment Division, Department of Human Resources of Oregon v. Smith, defending that case against criticisms that it eviscerates the constitutional protection of religion.

1. Respecting Establishment

   The first words enacted in amendment of the United States Constitution were these: "Congress shall make no law respecting an establishment of religion ...."(22) The First Amendment also bars Congress from making laws "prohibiting" the free exercise of religion and "abridging" the freedom of speech.(23) Why respecting establishment?

   Because in 1791, established churches were features of the American landscape. How many there were is a matter of dispute. Cobb's 1902 study found two states with establishments of religion during the founding period;(24) Pfeffer concludes that four had a "substantial establishment";(25) Van Alstyne identifies five;(26) Levy says there were seven.(27) The truth is that by the standards of modem doctrine, almost every state in post-revolutionary America had laws establishing religion.(28) For example, from 1776 to 1791, almost all the states adopted Christian or Protestant tests for public office.(29) The critical point is that while 1780s Americans in some places, such as Virginia, were fiercely debating and rejecting state laws that would strike us today -- and struck some, including Madison, then -- as establishing religion,(30) Americans elsewhere were insisting on such laws and had no intention of permitting the federal government to undo them.

   In Massachusetts, for example, the constitution of 1780 authorized each town to tax its residents "for the support and maintenance of public Protestant teachers" of their choosing.(31) The laws of Connecticut, New Hampshire, and Vermont were similar in this respect.(32) In every one of these states, a majority of the voters in each locality "decided which Protestant ministry to settle in the town and voted a tax on all inhabitants to raise funds for church construction and a ministerial stipend."(33) An individual dissenting from the majority church typically had the right to direct his money toward "his own religious sect or denomination,"(34) but only if he could obtain a certificate attesting that he attended another appropriate place of worship.(35)

   New England's town-by-town establishments had three important coercive implications. First, all persons were compelled to finance some church. Second, certain Protestants, such as Baptists and Quakers, were obliged to contribute to their own ministries in contravention of their religious doctrines, said to forbid any coerced religious contributions.(36) Third, the "unchurched," together with those unfortunate enough not to be Christian at all, were forced to contribute to the majority church against their will.(37) At the same time, churchgoing was often compulsory,(38) blasphemy (against the Christian faith) was everywhere criminal,(39) and civil and political rights were frequently limited to Protestants.(40)

   These laws were not pre-revolutionary relics. As in Massachusetts, they had the imprimatur of the post-1776 state constitutions.(41) Nor were they passed without intense public debate.(42) Baptists and others vigorously inveighed against them.(43) But to most New England eyes, constitutional recognition of Protestantism, together with town-by-town establishment of Congregationalism -- or, in a few cases, Presbyterianism -- was no evil. On the contrary, New Englanders had fought for this relation between church and state from the founding of their colonies right up until 1776.(44) "We might as well expect a change in the solar syst[e]m," John Adams is supposed to have said in 1774, "as to expect they would give up their establishment."(45)

   The First Amendment's religion clauses emerged against this background, growing directly...