The Religious Freedom Restoration Act is a constitutional expansion of rights.

• Author: Chemerinsky, Erwin
• Position: Symposium: Reflections on City of Boerne v. Flores

For almost a half century since Brown v. Board of Education,(1) conservatives have railed against liberal judicial activism.(2) Republican presidential candidates from Richard Nixon to Bob Dole have campaigned against the Court and have excoriated what they perceive as judicial activism. Almost three decades after the end of the Warren Court, at a time when the Supreme Court and all federal courts remain dominated by Republican judges, the attack on liberal judicial activism continues. In July, 1997, the Senate Judiciary Committee held hearings titled Judicial Activism.(3) Thomas Jipping, a prominent conservative critic of the courts, wrote an editorial in August, 1997, expressing "[c]oncern about a federal judiciary out of control."(4)

The irony is that the real judicial activism of the 1990s is in a conservative direction. The Supreme Court's recent decision in City of Boerne v. Flores(5) is extremely important on many levels, including as a striking example of conservative judicial activism. Ultimately, Flores posed basic questions concerning the relationship between the Court and Congress in interpreting the Constitution, between the power of the federal government and the states in protecting rights, and between a narrow and a broad content for a basic constitutional right.

The Court resolved these issues by choosing in favor of its own power and invalidating a statute overwhelmingly passed by Congress. Whether one agrees or disagrees with the result, and however one defines judicial activism, this is it. Moreover, the Court rejected the federal statute, in part, based on federalism concerns and the perceived need to protect states from such federal encroachments.(6) Additionally, the obvious effect of Flores is to reduce protection of free exercise of religion by returning the law to the test articulated in Employment Division v. Smith:(7) A neutral law of general applicability does not violate the Free Exercise Clause.(8) The invalidation of a federal statute on federalism grounds and the substantial narrowing of the scope of constitutional rights are obviously conservative victories. Flores, by any measure, is dramatic conservative judicial activism.

This observation, however, does not mean that the Court decided Flores wrongly. Identifying it as "activist" and "conservative" is descriptive. Although it is true that critics usually reserve the phrase judicial activism to attack decisions with which they disagree, the reality is that activism and restraint are neither inherently good nor bad. Rather, each case must be analyzed normatively to assess judicial activism's desirability. If nothing else, perhaps Flores will reveal how absurd it is for conservatives to lament liberal activism from a Supreme Court that is controlled by five conservative Justices and that lacks a single progressive Justice in the mold of William Douglas, William Brennan, or Thurgood Marshall. The judicial activism of the 1990s, as Flores powerfully illustrates, is conservative.

What makes Flores wrong is not its activism or its conservatism, but instead its failure to accept a basic constitutional principle, most clearly expressed in the Ninth Amendment: Other government institutions, federal and state, may expand the scope of constitutional rights.(9) Congress, by statute, may confer more rights than the Court finds in the Constitution. The Religious Freedom Restoration Act of 1993 (RFRA)(10) is constitutional because in it, Congress, by statute, expanded constitutional rights.(11)

This defense of RFRA can be presented as a simple syllogism.

Major premise: Congress, acting under Section 5 of the Fourteenth Amendment ("Section 5"), statutorily may create more constitutional rights than recognized by the Supreme Court, so long as Congress does not dilute or lessen rights.

Minor premise: RFRA is a statute, enacted under Section 5, that creates more constitutional rights and neither dilutes nor lessens rights.

Conclusion: RFRA is constitutional.

Part I of this Essay defends the major premise of the syllogism: Congress, acting under Section 5, may expand the scope of rights. Part II examines the minor premise and explains why the Supreme Court should have recognized RFRA as a statute creating additional rights. Part III considers what might be done now to protect free exercise of religion in light of Flores's improper invalidation of RFRA.

By any measure, Flores is an enormously important decision. It speaks to basic issues concerning the powers of Congress and the Supreme Court in interpreting the Constitution. It concerns the scope of Congress's authority under an increasingly important constitutional provision--Section 5 of the Fourteenth Amendment.(12) As the Court narrows the scope of Congress's commerce power, in cases such as United States v. Lopez,(13) alternative sources of congressional authority, such as Section 5, grow in significance.(14)

Perhaps most importantly, Flores means that people in the United States will have far less protection for their religious practices. Laws of general applicability--whether prison regulations, zoning ordinances, or historical landmark laws--that seriously burden religion might have been challenged successfully under RFRA, but not any longer. Put most simply, Flores means that many claims of free exercise of religion that previously would have prevailed now certainly will lose. People in the United States have less protection of their rights after Flores than they did before it. This, in short, is why Flores was decided wrongly.

1. MAJOR PREMISE: CONGRESS, ACTING UNDER SECTION 5, MAY EXPAND THE SCOPE OF CONSTITUTIONAL RIGHTS

   1. The Issue

      The Constitution's protection of rights long has been understood as the floor--the minimum liberties possessed by all individuals. The Ninth Amendment provides clear textual support for this view in its declaration: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."(15) The Ninth Amendment is a clear and open invitation for government to provide more rights than the Constitution accords.

      State governments certainly can expand protective rights both by judicial decisions and by statute. For instance, in PruneYard Shopping Center v. Robins,(16) the Supreme Court held that the California Supreme Court could recognize a state constitutional right to use shopping centers for speech purposes,(17) even though previously the U.S. Supreme Court had ruled that no such right exists under the U.S. Constitution.(18)

      Likewise, there is no doubt that Congress, by statute, can provide rights greater than the Court recognizes in the Constitution. For example, private race discrimination does not violate the Constitution because it lacks government action. Federal civil rights laws that prohibit discrimination in private places of accommodation and by private employers create statutory rights in which the Court has found no constitutional protections.(19)

      This seemingly obvious premise, based on the Ninth Amendment, that Congress can expand the scope of rights, means that Congress may do so even when it disagrees with a Supreme Court decision that refused to find a right in the Constitution. Some critics of RFRA emphasized that Congress should not be able to overrule the Supreme Court's "reading" of the Constitution.(20) But if the Court reads the Constitution to not include a right, Congress or the states may act to create and protect that right. In other words, the Court's interpretive judgment that a particular right is not constitutionally protected is in no way incompatible with a legislature's statutory recognition and safeguarding of the liberty.(21)

      Therefore, if Congress enacts a statute that expands rights, the key question is whether Congress has authority under some constitutional provision for its action. It is axiomatic that Congress may act only if it can point to express or implied constitutional authority.(22) One possible source of congressional authority is the Commerce Clause, which Congress used to prohibit private discrimination in the Civil Rights Act of 1964.(23)

      Another logical source of authority is Section 5 of the Fourteenth Amendment, the focus of the Flores decision. Section 5 is brief and states: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."(24) The issue, then, is what does this provision mean; may Congress use it to expand the scope of rights? More specifically, is Congress limited to providing remedies for violations of constitutional rights recognized by the Supreme Court; or may Congress use its power under these amendments to adopt an independent interpretation of the Constitution, even overruling Supreme Court decisions?

   2. The Inadequacy of Justice Kennedy's Attempt to Define Congress's Section 5 Power

      As is usually the case with difficult constitutional issues, the answer to this question cannot be found in the Constitution's text or the Framers' intent. The word "enforce" is sufficiently ambiguous to allow either view as a plausible interpretation of Section 5. The Supreme Court in Flores claimed that the word necessarily means that Congress only can remedy and that Congress cannot determine the substantive meaning of rights.(25) Justice Kennedy, writing for the majority, stated:

      Congress' power under [sections] 5, however, extends only

      to "enforc[ing]" the provisions of the Fourteenth

      Amendment.... The design of the Amendment and the text of

      [sections] 5 are inconsistent with the suggestion that

      Congress has the power to decree the substance of the

      Fourteenth Amendment's restrictions on the states.

      Legislation which alters the meaning of the Free Exercise

      Clause cannot be said to be enforcing the Clause. Congress

      does not enforce a constitutional right by changing what the

      right is.(26)

      But this begs the key question of what enforce means. One dictionary defines "enforce" as...