How to apply the Religious Freedom Restoration Act to federal law without violating the constitution.

• Author: Magarian, Gregory P.

INTRODUCTION

Learned commentators have called the Religious Freedom Restoration Act of 1993 ("RFRA" or "the Act") (1) "perhaps the most unconstitutional statute in the history of the nation" (2) and "the most egregious violation of the separation of powers doctrine in American constitutional history." (3) In the 1997 case of City of Boerne v. Flores, (4) the Supreme Court struck down the Act in its applications to state and local governments, declaring that "RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance." (5) The Act's applications to federal law, however, survived Boerne, which means that plaintiffs with religious freedom claims against the federal government have a formidable legal tool at their disposal. RFRA raises fundamental questions about the relationship between legislative and judicial power. This Article aims to facilitate the operation of RFRA's surviving federal law applications, which I will call "Federal RFRA," by considering how this statute fits into the constitutional scheme of governmental power and how courts should proceed in construing it.

RFRA offers a novel structural model for legislation. In the Act's applications to federal law, Congress made a blanket precommitment to protect religious liberty against federal encroachment, beyond what the Supreme Court has held the Constitution to require. This form of legislation may become increasingly important to the extent the Court abjures enforcement of constitutional rights against the federal government. (6) The Boerne Court's elimination of RFRA's state law applications casts a clear spotlight on two inquiries the Court did not have to make. First, did Congress exceed its constitutional role by legislating a precommitment to enhance free exercise protection against federal authority? Second, assuming Federal RFRA survives the first inquiry, how can courts follow Congress's directive to administer a statutory regime of mandatory religious accommodation without countenancing violations of the Establishment Clause?

The answers to these questions have important implications for a broad range of litigants, from federal prisoners whose opportunities for religious exercise are constrained (7) to members of minority religious groups whose practices violate federal regulations (8) to unlicensed religious broadcasters (9) and religion-motivated tax objectors. (10) Analysis of Federal RFRA can also aid in assessing the constitutionality of subsequent religious freedom legislation prompted by Boerne, notably the Religious Land Use and Institutionalized Persons Act. (11) In addition, constitutional analysis of Federal RFRA is significant because the same Establishment Clause problems, and some variations on the same separation of powers problems, will confront the RFRA-like statutes many states are considering or have enacted in the wake of Boerne. (12)

The few commentators who have paid more than passing attention to the question of Federal RFRA's constitutionality have tended to view both the separation of powers and Establishment Clause problems as amenable to unambiguous resolution, either clearing Federal RFRA of any constitutional deficiencies (13) or condemning it across the board. (14) Meanwhile, federal courts that have applied RFRA to federal law since Boerne have produced no consistent doctrine of accommodations under the Act. (15) This Article examines whether and how courts can apply Federal RFRA in a manner consistent with the Constitution. It contends that courts have no basis for invalidating the Act's federal law applications; rather, courts should focus on the task of construing Federal RFRA to avoid Establishment Clause problems.

Part I of this Article briefly recounts the genesis of Federal RFRA. Part II explores the implications of the separation of powers for Federal RFRA's enhancement of religious freedom at the expense of the federal government. This Part first contends that Federal RFRA is best understood as a legislative precommitment to protecting religious exercise across the range of federal law, secured by the political inertia RFRA requires Congress to overcome should it want to repeal the Act or to exempt any given governmental function from the Act's protection. That understanding compels the conclusion, detailed in the remainder of Part II, that the Court has no business invalidating Federal RFRA on any separation of powers ground. First, I will demonstrate that Congress's apparent lack of constitutional authority in applying RFRA to federal law is irrelevant, because Federal RFRA -- properly construed to prevent Establishment Clause violations -- reflects no exercise of power at all. Next, I will contend that a congressional precommitment to overprotecting rights in the federal sphere neither usurps the judicial power to interpret the Constitution nor interferes with courts' function in deciding cases. Finally, I will explain that the mechanism Congress chose to enforce RFRA's precommitment in particular cases -- heightened judicial scrutiny of federal religious accommodation claims -- comports with the practical and constitutional determinants of judicial competence.

Properly focused judicial review of Federal RFRA entails two carefully balanced tasks. First, courts must give Federal RFRA meaningful effect. Second, they must determine whether and to what extent RFRA violates the Establishment Clause. Part III of this Article contends that, although the Act on its face does not violate that Clause, many of its conceivable applications do. I propose and evaluate two alternative approaches to statutory construction of Federal RFRA that would allow application of the Act to its constitutionally permissible extent. First, the Court could construe the Act to encompass nontheistic claims for conscientious exemptions from the operation of federal laws. I favor this libertarian approach to construction of Federal RFRA because it would give maximum effect to the will of the political branches. An alternative would be for the Court simply to assert the constitutional force of the Establishment Clause to constrain the scope of RFRA's statutory expansion of rights. This approach would dramatically reduce the Act's force, but I believe it would permit, at a minimum, accommodations to ensure equal treatment of similarly situated believers in different religions and idiosyncratic accommodations that are not generally desirable. (16)

1. FROM RFRA TO FEDERAL RFRA

   The story of RFRA is the latest chapter in a longstanding debate over the idea of mandatory religious accommodations by government entities. (17) In 1990, the Supreme Court in Employment Division v. Smith (18) rejected a claim that the Free Exercise Clause precluded a state from denying unemployment benefits to members of the Native American Church who had lost their jobs due to their use of peyote in a religious sacrament. The Court reached beyond the facts of the case to hold broadly that the Free Exercise Clause does not entitle plaintiffs who challenge applications of neutral laws on religious grounds to have their claims examined under heightened constitutional scrutiny. In so holding, the Court dramatically limited its earlier decisions in Sherbert v. Verner (19) and Wisconsin v. Yoder, (20) which had applied strict scrutiny to religious accommodation claims. (21) Writing for the Court in Smith, Justice Scalia asserted that heightened scrutiny of religious accommodation claims would produce "a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs." (22) The Smith decision was the subject of voluminous and intense academic criticism. (23)

   The question of constitutionally mandated religious accommodation had produced inconsistent results in a series of decisions between Sherbert and Smith. As the Smith opinion acknowledged, (24) the Court in that period generally had accorded free exercise claimants less protection than a strong reading of Sherbert and Yoder would have required. (25) In the majority of free exercise cases, the Court rejected mandatory accommodation claims. (26) Only a few decisions, factually similar to Sherbert, reflected the solicitude for free exercise that had characterized Sherbert and Yoder. (27) The Court between Sherbert and Smith also had decided a range of Establishment Clause cases that presented accommodation claims -- though usually not framed as such -- as to which it reached inconsistent results. (28) These decisions reveal considerable tension within and between free exercise doctrine, which commands the government to safeguard religious liberty, and Establishment Clause doctrine, which constrains the government to avoid aggrandizing or coopting religion. "The Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other." (29) Justice Scalia's majority opinion in Smith made no mention of the Establishment Clause, addressing only the potential effects of strict scrutiny on the government's regulatory prerogatives.

   In 1993, Congress passed RFRA in an unabashed effort to reverse the Smith decision. The Act was supported by "one of the broadest coalitions in recent political history, including Christians, Jews, Muslims, Sikhs, Humanists, and secular civil liberties organizations." (30) It passed both Houses of Congress almost without opposition. (31) RFRA provides that "[g]overnment shall not substantially burden a person's exercise of religion" unless the burden "is in furtherance of a compelling governmental interest" and "is the least restrictive means of furthering" such interest. (32) The text of the legislation includes "findings" that expressly criticize Smith (33) and declare that "the compelling interest test as...