Why the Congress was wrong and the Court was right - reflections on City of Boerne v. Flores.

• Author: Lupu, Ira C.
• Position: Symposium: Reflections on City of Boerne v. Flores

Despite my occasional alliance with forces hostile to the Religious Freedom Restoration Act (RFRA or the "Act"),(1) City of Boerne v. Flores(2) provoked me to mixed feelings. True enough, I wagered a case of Montana beer on the outcome, and I thoroughly enjoyed my brewed reward.(3) Moreover, I did not leave the decision in Flores entirely to chance and the exertions of others. I happily provided Marci Hamilton, counsel for the City of Boerne, with some suggestions along the way, and she in turn, was generous enough to moot her Supreme Court argument in front of a group of my colleagues and seminar students at George Washington. One's victory, however, is always another's defeat, and given my personal and professional connections to both sides, I quickly began to feel pangs of sweet sorrow. After all, sunset for RFRA meant darkness for religious liberty. Or did it? The more I concerned myself with that question, the more my mood gave way to genuine bemusement. As the spin accelerated in the aftermath of Flores,(4) I developed a sense that I had been a bit player in, and active witness to, a contemporary constitutional pseudotragedy.

This Essay proceeds in three parts. The first part chronicles my place and that of others in commentary, prediction, and professional efforts concerning the constitutionality of RFRA. Contrary to what many of its proponents believed, RFRA was doomed from the start. The second part analyzes the reasons for my ambivalence about RFRA. In short, I believe that Employment Division v. Smith(5) is a bad decision, but I also believe that Congress erred in trying to correct Smith by legislation. Moreover, this second part explains why I think that the presence or absence of RFRA, or some potential RFRA substitute, will have few practical consequences for religious liberty. Far more than its proponents are likely to admit, RFRA has been a failure. The third part turns to the grand and overarching question presented by application of RFRA to the states. Rarely does Marbury v. Madison(6) come face-to-face with McCulloch v. Maryland,(7) but this showdown occurred in Flores. Although Marbury and McCulloch are not ordinarily in explicit tension, exercise of congressional power under the Fourteenth Amendment offers the distinct possibility of such conflict, In Flores, the Court identified and resolved that struggle in a way that demonstrated fidelity to longstanding attributes of constitutional structure.

1. WE TOLD YOU SO

   Much as I know about the fall that follows pride, I cannot resist claiming some credit for being out front on this one. I expressed doubt about the constitutionality of RFRA the way Chicagoans were once reputed to vote--early and often. Congressman Solarz originally proposed RFRA in 1990,(8) in the immediate wake of Smith. In early 1992, while the Act was pending in Congress, I wrote an article asserting that RFRA, as applied to the states, was unlikely to survive Supreme Court review.(9) I repeated that assertion in testimony on May 14, 1992, before the Subcommittee on Civil and Constitutional Rights of the House Judiciary Committee.(10)

   RFRA became law in the fall of 1993.(11) I must confess that by the time I prepared my submission to the Montana Law Review symposium on RFRA,(12) held in the fall of 1994, I had begun to hedge. A number of my friends in the community of religious liberty advocates were involved deeply in the passage of RFRA, and I was not entirely comfortable trashing their handiwork. Less personally and more substantively, I thought that the Court had decided Smith incorrectly and that the decision was a worthy candidate for prompt reconsideration. Consequently, my symposium contribution restated my constitutional doubts about RFRA(13) but suggested a narrowing construction that might save it. In particular, I argued that courts should construe the Act as having erased Smith and having returned free exercise law to where it stood on the eve of Smith, rather than to its high water mark of some twenty years before.(14)

   In the course of presenting that piece in various settings, including the symposium itself, I realized that my diplomatic middle ground was of interest to very few people. Supporters of RFRA, including most prominently Professor Douglas Laycock, argued strenuously in Congress and in academic literature that Section 5 of the Fourteenth Amendment ("Section 5")(15) fully supported congressional power to enact RFRA.(16) For those individuals who were convinced of RFRA's constitutionality and who endorsed its policy, a narrowing construction was both unnecessary and undesirable.(17)

   To opponents of RFRA, saving the Act in any form seemed ill-advised. Dan Conkle wrote the best and most persuasive piece on why Congress's power under Section 5 could not sustain RFRA.(18) Professor Conkle's work provides an analytical framework with which the Supreme Court opinion coincides considerably.(19) Bill Marshall, concerned that RFRA unconstitutionally favored religion, comprehensively analyzed nonestablishment, equal protection and free speech issues presented by the Act.(20) Marci Hamilton, who so effectively represented the City of Boerne in the Supreme Court, also penned a powerful attack on the statute. Her arguments, all of which found their way into her presentation to the Court, included considerations of federalism, but went beyond those considerations to encompass pure separation of powers and nonestablishment principles.(21) Joanne Brant authored the first anti-RFRA piece based on separation-of-powers principles alone,(22) and Larry Sager and Chris Eisgruber followed with an article that expanded the separation-of-powers critique.(188) Jay Bybee analyzed questions, from a historical perspective, about the power of Congress to legislate under the Fourteenth Amendment in the field of religion,(24) and Scott Idleman raised significant Establishment Clause issues as well as Section 5 concerns in his commentary on RFRA.(25) Eugene Gressman and Angela Carmella burnished these arguments with a thorough analysis of RFRA's constitutional problems.(26)

   Despite how surprised some of RFRA's supporters may have been by Flores,(27) plenty of RFRA opponents saw the handwriting on the wall in federalism cases beginning with New York v. United States,(28) and continuing though United States v. Lopez(29) and Seminole Tribe v. Florida.(30) Those signs culminated in a dramatic series of pro-state federalism decisions, Flores included, in the final days of the Court's 1996 term.(31) Unless the Fourteenth Amendment or some other explicit prohibition withdraws state sovereignty to govern in a particular way, Congress faces limits on its power to conscript state government and its agents as instruments of federal policy. RFRA did that, and, for reasons elaborated more fully in Part III below, the Court would not allow it.

2. FLORES AS PSEUDO-TRAGEDY

   Ever since the Supreme Court's 1990 decision in Smith, RFRA proponents have asserted much and demonstrated little about the threat to religious liberty in America. Douglas Laycock and others testified about religious persecution in America at the congressional hearings on RFRA, but they offered few examples of what strikes ordinary people as oppression by the government.(32) True oppression is aimed by the oppressors at the oppressed; when government so behaves towards religion, covertly or otherwise, the Free Exercise Clause forbids the action.(33)

   RFRA is aimed at the more diffuse and larger set of problems-arising from the incidental impact of formally religion-neutral rules on religious practices or church activity. Such impacts may be the product of insensitivity, lack of information, or ethnocentrism;(34) alternatively, they may simply reflect the cost of doing religious business in a complex society.

   The incidental impact of legal rules upon religion may occur in many contexts. Prior to Flores, RFRA's most widespread effects were in state prisons. The religious liberties of prisoners are regulated heavily, and prison inmates are notoriously litigious.(35) Not surprisingly, therefore, more than half of the reported cases under RFRA involve prison inmates.(36) Of course, even outside of prisons, religion-neutral rules of general applicability sometimes are applied to the detriment of churches or religiously motivated activities of individuals. Most applications of formally religion-neutral rules, however, simply make religion more expensive than it would otherwise be. For example, compliance by religious institutions with zoning codes and historic preservation ordinances(37) has economic consequences. Other cases of the sort contemplated by RFRA involve genuine and difficult conflicts between religious values and other important social values, including most prominently nondiscrimination.(38)

   To be sure, a doctrine of religious exemptions can be justified even in a world in which most harms resulting from the collision of law and religion are not targeted at religion per se. In the exceptional case in which the impact of governmental action upon religious conscience or community is severe and the government interest in inflicting the harm is small, exemptions are highly attractive as a matter of constitutional policy. Moreover, cases involving this combination of severe impact upon religion and weak justification for it will frequently involve minority religions, less well-known and less popular than others. Elected politicians will rarely be insensitive to mainstream religions, but they may readily overlook the interests of other religious traditions.(39)

   The authentic case for exemptions may well not have been enough to persuade Congress to overturn the Smith decision by statute; hence RFRA's supporters were compelled to exaggerate the threat to religion presented by the regime of Smith. RFRA's supporters overstated the case for the Act in other ways as well. First, the Smith opinion had many seeds from which...