A response to Professor Rubenfeld.

• Author: Hacker, Jonathan D.
• Position: Response to article by Jed Rubenfeld, Michigan Law Review, vol. 95, p. 2347, 1997

Professor Jed Rubenfeld has offered in these pages(1) an ingenious explanation for why the Supreme Court was right to strike down the Religious Freedom Restoration Act (RFRA)(2) in City of Boerne v. Flores.(3) Rubenfeld finds in the First Amendment's Establishment Clause a historical and inherent principle he calls "antidisestablishmentarianism": a prohibition on acts of Congress that "disestablish" religion in the several states. Rubenfeld reads the Establishment Clause as proscribing not only congressional acts that "establish" religion but also all congressional acts that "dictate a position on religion for states,"(4) including laws designed to ensure that states abide by the requirements of the Free Exercise Clause. RFRA was unconstitutional, Rubenfeld argues, because it transgressed this principle. As the title of his Article suggests, Rubenfeld's explanation is so ingenious, in fact, that it did not even occur to the Justices who signed the Boerne majority opinion.

In reasoning that Rubenfeld banishes to a footnote,(5) the Court in Boerne modestly held that RFRA exceeded Congress's power to enforce the Fourteenth Amendment under Section 5 of that Amendment, because the RFRA's legislative scheme was not "congruent" or "proportional" to the harm Congress identified in enacting the law.(6) Importantly, Boerne explicitly reaffirms Congress's long-recognized power under Section 5 to pass laws reasonably designed to remedy or deter state actions that violate the Constitution, even if such laws, in their operation, also prohibit actions that are themselves constitutionally permissible.(7)

The problem with RFRA, according to Boerne, was that it was not even targeted at unconstitutional state actions. The legislative record generated in support of RFRA was replete with instances in which seemingly neutral laws of general applicability imposed severe "burdens" on religious practices.(8) But in Employment Division, Department of Human Resources v. Smith,(9) the Court had made clear that a state law of general applicability simply does not violate the First Amendment, no matter how significant its burden on the free exercise of religion, absent some evidence of discriminatory motivation.(10) To the Boerne Court, the extensive factual findings underpinning RFRA -- all concerning "burdens" on religious practice -- failed to reveal any evidence at all of unconstitutional state actions as Smith defined them:

It is difficult to maintain that [the state and municipal laws Congress

identified in support of RFRA] are examples of legislation enacted or

enforced due to animus or hostility to the burdened religious practices

or that they indicate some widespread pattern of religious discrimination

in this country. Congress' concern was with the incidental burdens

imposed, not the object or purpose of the legislation.(11)

Boerne does little more than confirm the lesson of Smith: burdens alone -- even crushing, destructive burdens -- are not enough to render a law affecting religious practices unconstitutional.

Once the Court determined that the legislative record was essentially devoid of examples of constitutional violations as the Court understood them,(12) there was no hope for RFRA at all. Any congressional scheme to remedy or deter constitutional violations goes too far if there are no constitutional violations to remedy or deter.(13) So of course RFRA lacked "proportionality" and "congruence." That is all the Boerne Court really held.

Rubenfeld's story is much more dramatic. On the one hand, Boerne suggests that if Congress were able to build a record demonstrating widespread state animus toward religious practices, and then passed a law requiring states to exempt religious exercisers from the reach of all generally applicable laws imposing an undue burden on such exercises, such a law would be well within Congress's Fourteenth Amendment enforcement power. Rubenfeld, on the other hand, is certain that such a law, and any law like it, would still be unconstitutional, because of the First Amendment's Establishment Clause.(14)

As Rubenfeld reads its text and enacting history, the Establishment Clause

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.(15)

Thus RFRA's vice was not w as the Court concluded -- that it was a response to a nonexistent constitutional problem, or that it was an overreaction to a minor constitutional problem; RFRA "really was unconstitutional" because the First Amendment specifically prohibits Congress from "disestablishing" religion in the several states.

Not only was RFRA unconstitutional, but any congressional enactment designed to deter states from abridging the free exercise of religion -- regardless of the evidence of state transgressions -- violates the antidisestablishmentarian principle and therefore the Establishment Clause.(16) According to Rubenfeld, laws that protect free exercise disestablish religion, and laws that disestablish religion offend the First Amendment.

Or at least they offend Rubenfeld. I'm not so sure they offend the First Amendment. Not anymore.

I want to suggest in this Correspondence that history has overtaken, and nullified, Rubenfeld's interpretation of the Clause. Far from being "essential to the fundamental constitutional separation of religion and government,"(17) as Rubenfeld claims it to be, in my view the antidisestablishmentarian principle today serves no constitutional function whatsoever, and does not stand in the way of responsible congressional efforts to remedy or deter violations of the Free Exercise Clause.

Rubenfeld argues that antidisestablishmentarianism is part of the very core of the Establishment Clause. He offers a brief but fascinating history of the Founding period, which reveals to the historically uninitiated the prevalence of established religions in and among the several states at the time. Rubenfeld acknowledges that there were "powerful antiestablishment" forces backing the First Amendment, who demanded the Establishment Clause as a guarantee that Congress would not establish a national church.(18) But Rubenfeld also points out that others were loudly voicing antidisestablishment concerns. These members of the founding generation sought "to memorialize Congress's inability to `interfere' or `intermeddle' with...