Why now is not the time for constitutional amendment: the limited reach of City of Boerne v. Flores.

• Author: Greenawalt, Kent
• Position: Symposium: Reflections on City of Boerne v. Flores

1. INTRODUCTION

   When the Supreme Court eviscerated the protection of the Free Exercise Clause in Employment Division v. Smith,(1) religious groups and individuals dismayed by the decision chose to pursue statutory relief rather than a constitutional amendment. Now that the Supreme Court has decided in City of Boerne v. Flores(2) that the resulting statute, the Religious Freedom Restoration Act(3) (RFRA or the "Act"), cannot be justified as a congressional exercise of power under the Fourteenth Amendment, many who care deeply about religious liberty may turn to the amendment process as an alternative. Although disappointed by the Flores decision, I believe it is premature to seek a constitutional amendment that would explicitly protect religious conduct from the operation of neutral, valid laws. The Supreme Court has not ruled out effective statutory relief. Until it does so, that course is preferable to amendment.

   In this essay, I do not address whether the Court was justified in its conclusion about Congress's power under the Fourteenth Amendment.(4) Nor do I analyze the merits of other constitutional arguments against RFRA, which I have previously urged are unconvincing.(5) This essay explores the implications of what has been said and not said by the Court, with an eye to what opponents of Smith should now do.

2. THE BASES FOR EMPLOYMENT DIVISION V. SMITH AND CITY OF BOERNE V. FLORES

   If one puts aside the surprising analysis of prior constitutional law, the heart of the Court's opinion in Smith was that courts cannot effectively apply a constitutional standard that requires assessment of individual claims that neutral laws seriously and unjustifiably burden religious exercise.(6) No intelligent observer can doubt the Court's observation that such inquiries are often difficult; those who disagree with the Court believe that the value of religious freedom is great enough to justify the inquiries nonetheless.

   The Court in Smith indicated clearly that some legislative accommodations for religious exercise are definitely acceptable. For example, a state legislature may permit members of a religious group to use peyote in worship services.(7) The Court impliedly endorsed some other such accommodations that state and federal legislatures have accorded.(8) Justice Stevens has a different view about accommodations. His brief opinion in Flores concluded that RFRA was an invalid establishment of religion because religious claimants should not receive benefits unavailable to nonreligious claimants.(9) Justice Stevens is the only member of the Court who has taken the position that uneven benefits make an accommodation unconstitutional. According to existing constitutional law, specific legislative accommodations to religious exercise are generally acceptable.(10)

   If a legislature can make a specific accommodation, can it also make a general one? That is, rather than itself deciding when religious claimants should be exempted from ordinary legal requirements, can a legislature enact a broadly worded privilege for religious exercise that courts apply on a case-by-case basis? This issue is not resolved by either Smith or Flores. Smith asserted that courts have great difficulty applying a broad constitutional standard for religious exemptions.(11) But Smith did not say that if a legislature instructed courts to apply a broadly worded standard, the standard would be so unwieldy that it would impose an unconstitutional burden on the courts. Some scholars, defending Smith and criticizing RFRA, have argued that such legislative instruction would violate the separation of powers between the legislative and judicial branches because it imposes a burden that courts are not fit to bear.(12) Smith itself, however, does not go that far.

   Justice Kennedy's opinion for the Court in Flores repeated some of the language in Smith: "[C]laims that a law substantially burdens someone's exercise of religion will often be difficult to contest."(13) But Justice Kennedy came no closer than did Smith to saying that a broad legislative accommodation is necessarily unconstitutional. Flores was fundamentally about Congress's power vis-a-vis the states, not about Congress's power vis-a-vis its own enactments, nor about state legislative power vis-a-vis state enactments. Flores does not tell us whether Congress can qualify past and future federal legislation by RFRA-like language. Flores does not tell us whether a state legislature can similarly qualify its own past and future legislation. What I mean by "qualifying its legislation" is creating an exemption for religious exercise cast in broad language that applies both to statutes already enacted and to any new statutes.(14) We do not know whether the present Court, or any...