RFRA-vote gambling: why Paulsen is wrong, as usual.

• Author: Sherry, Suzanna
• Position: Religious Freedom Restoration Act - Response to article by Michael Stokes Paulsen in this issue, p. 7

Supreme Court currents are no less treacherous to navigators than are river currents -- and, as Michael Paulsen himself has previously pointed out, RFRA shares more than a linguistic resonance with a river.(1) Unfortunately, this time Paulsen has let himself be fooled by the prevailing political winds into believing that there will be smooth sailing for his favorite statute despite the swirling eddies ahead. He is altogether too confident of a favorable result.

Although I have no wagers, public or private (and I am shocked -- shocked! -- to find gambling in this establishment) on the outcome of Boerne v. Flores, I want to use my editorial prerogative to take issue with my colleague's predictions. Indeed, he seems to have things exactly backward.

I start with the liberal wing of the Court, and the Justices Paulsen seems to be most doubtful of. Justices Ginsburg and Breyer. Together with Justice Souter, they would support RFRA for at least two independent reasons. First, I am more confident than Paulsen that all three would vote to overturn Smith; they believe that RFRA incorporates a correct interpretation of the Free Exercise Clause. This is a good bet from the outset, Smith supporters are few and far between. Among religion law scholars, for example, opposition to Smith is one of the few issues on which the left and the right generally agree. RFRA itself passed Congress by an overwhelming (and strongly bi-partisan) margin. Accommodation of religion can be viewed as either protective of religion (in which case it appeals to many conservatives) or protective of individual liberty (in which case it appeals to many liberals). The combination is almost unbeatable: only a few iconoclasts like me find Smith persuasive.(2)

Moreover, all three liberal Justices are likely to support a reasonably broad Morgan power, and thus to allow Congress some discretion even were Smith correctly decided. In particular, they would likely support RFRA as a prophylactic measure designed merely to prevent intentional religious discrimination, which is banned by the First Amendment. They thus need not reach the interesting question that Justice O'Connor might have to consider about whose view of the Fourteenth Amendment Congress is entitled to consult. (I'll get to that question later.) I would count them as three sure votes to affirm.

Paulsen is too sure of the votes of the three conservative Justices, however. He argues that any attack on RFRA would require them to...