Religious Liberty, Volume 3: Religious Freedom Restoration Acts, Same-Sex Marriage Legislation, and the Culture Wars

By Douglas Laycock

One of the most respected and influential scholars of religious liberty in our time, Douglas Laycock has argued many crucial religious-liberty cases in the United States Supreme Court. His noteworthy scholarly and popular writings are being collected in five comprehensive volumes under the title Religious Liberty.

This third volume presents a documentary history of efforts to enact and implement state and federal Religious Freedom Resto-ration Acts, to include religious-liberty protections in same-sex marriage legislation, and to protect the rights of both sides in the culture wars. It contains articles in scholarly journals, op-eds for popular audiences, and oral and written arguments.

• Language: English
• Publisher: Eerdmans
• Release date: Dec 18, 2018
• ISBN: 9781467451352

Douglas Laycock

  Douglas Laycock is Robert E. Scott Distinguished Professor of Law and professor of religious studies at the University of Virginia. In addition to his work as a lawyer, he has written for the New York Times, the Washington Post, and numerous other publications.

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Preface to Volume 3

Volume 1 of this collection was published in 2010, and volume 2 in 2011. No one ever intended that there would be a seven-year gap between volumes 2 and 3. But it was an eventful seven years, in which religious liberty became ever more deeply entangled in the culture wars and came to the attention of the public as never before. The thirty years before 2010 were an active time for religious liberty controversies; the years since 2010 have been even more so. Religious freedom legislation became intensely controversial, and there was high-profile litigation over contraception and same-sex marriage.

I was actively involved in some of these controversies, and I argued three less-publicized religious liberty cases in the Supreme Court in this period. Those engagements stopped progress on this collection and also swelled its contents. What was projected to be one volume on religious liberty legislation has turned out to be two.

Volume 1, Overviews and History, was principally devoted to articles that survey the field and articles on the history of religious liberty in the United States. Volume 2, The Free Exercise Clause, addressed constitutional litigation to protect the free exercise of religion. What was originally projected to be volume 4, The Free Speech and Establishment Clauses, is now projected to be volume 5.

The originally planned volume 3, to have been called Religious Liberty Legislation, is now divided into volumes 3 and 4. This volume addresses Religious Freedom Restoration Acts, both state and federal, religious liberty provisions in same-sex marriage legislation, and associated litigation about religious liberty with respect to contraception and marriage. Volume 4, Federal Legislation after the Religious Freedom Restoration Act, with More on the Culture Wars, will address the Religious Land Use and Institutionalized Persons Act, the Religious Liberty and Charitable Donation Protection Act, and the failed effort to enact the Religious Liberty Protection Act—a replacement for the original federal RFRA that would have applied to the states—together with scholarly commentary on the culture-war issues that have greatly complicated all these efforts.

These two volumes on religious liberty legislation contain traditional scholarly articles and briefs and arguments to courts, as in volumes 1 and 2. But there is also a new genre: letters to legislators and other policymakers, and testimony to legislative committees. As with briefs to courts, so with communications to legislators: I tried hard not to make arguments that I would not be willing to make in a scholarly article.

Of course I was only one participant in these legislative debates, and I was working from a particular point of view. But the many letters and statements collected here, often written with colleagues and coauthors, and the introductions and transitions written here to place those letters and statements in context, summarize the opposing arguments and the status of proposed legislation at each point in time. This volume and the one to follow are a documentary history, from a particular point of view, of the religious liberty legislation of the last quarter century. They also contain articles and briefs on the hot-button disputes over religious liberty, contraception, and same-sex marriage.

These volumes have always been intended as reference works in which readers would search out the material addressing issues of concern to them; it was never anticipated that many people would read these volumes from cover to cover. But there is a narrative to most sections in this volume, as bills move through the legislative process, escaping one peril only to encounter another, and as the American debate over religious liberty progresses to greater and greater polarization.

Editorial conventions have been carried forward from earlier volumes. Legal citation form is explained in Appendix II to volume 1. And for Internet citations, we have added permalinks—bracketed citations to a link that will retain the cited material permanently and not be changed every time a website is reorganized. Cross-references are now by page numbers. I am grateful to Madison Whitmore and James Hasson for assistance with preparing the manuscript.

To keep the price of these volumes manageable, this project has received financial support from the University of Virginia Law School, the Center for the Study of Law and Religion at Emory University, and the International Center for Law and Religion Studies at Brigham Young University. And as John Witte mentioned in the Foreword to the whole collection, volumes 1 and 2 received an earlier round of financial support from the University of Texas Law School and the University of Michigan Law School. I am grateful for this financial support, and equally important, for longstanding intellectual support and colleagueship from each of these five institutions.

DOUGLAS LAYCOCK

Charlottesville

June 2018

Introduction: Religious Liberty Legislation

Legislation has become the centerpiece of American efforts to protect religious liberty since the Supreme Court’s 1990 decision in Employment Division v. Smith. Smith held that the federal Free Exercise Clause creates no general right to exemptions from neutral and generally applicable laws that prohibit or burden the free exercise of religion. Just what that means remains disputed; the lower courts disagree about what counts as a generally applicable law, and the Supreme Court has declined to clarify. Smith and the Free Exercise Clause were the subject of volume 2.

Volume 2 anticipated that there might be continued constitutional protection, outside the scope of Smith, for the right of religious organizations to govern their internal affairs. And the Supreme Court confirmed that protection in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (2012). So the Free Exercise Clause is not dead, and there continues to be significant constitutional litigation.

But most of the litigation is now statutory, not constitutional. Smith made clear that any general right to regulatory exemptions to protect the exercise of religion would have to come from legislation or from state constitutions. And in 1997, in City of Boerne v. Flores, the Court limited the power of Congress to protect religious liberty from state and local governments. For the most part, Congress can protect religious liberty from the federal government, and each state must protect religious liberty from itself and from the local governments operating under its authority. The result has been an explosion of legislative effort in Congress and in many of the states.

Parts One and Two of this volume examine the most important of these legislative efforts, Religious Freedom Restoration Acts (RFRAs). These Acts create a statutory right to exemptions from laws that substantially burden the exercise of religion, except where necessary to serve a compelling government interest—a statutory right that tracks the constitutional right to free exercise of religion as it existed before Employment Division v. Smith. There is a federal RFRA to protect the free exercise of religion against federal law, and twenty-one state RFRAs, with modest variations in both names and substance, to protect the free exercise of religion against state laws. Twelve or thirteen more states have interpreted their state constitutions to protect religious exercise against neutral and generally applicable laws. Part One addresses the federal RFRA; Part Two addresses the various state RFRAs.

Part Three tracks the enactment of religious liberty provisions in state legislation on same-sex marriage and the litigation over same-sex marriage in the Supreme Court; it also contains my writings on the legal and political conflict between conservative believers and the gay rights movement.

One other important piece of federal legislation was enacted about the same time as RFRA—the American Indian Religious Freedom Act Amendments of 1994, now 42 U.S.C. § 1996a (2012). This law responded to the factual holding in Smith, explicitly protecting religious use of peyote by Native Americans. I was not involved in its enactment and had little occasion to write about it. The one place it comes up in these volumes is in my amicus brief in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, in this volume at 372.

Another important statute was enacted even earlier, in 1984, when I was too junior to be involved. This is the Equal Access Act, which protects the right of student organizations to meet in empty high-school classrooms. It was motivated by widespread discrimination against religious speech, and Christian organizations have been among its principal beneficiaries, but it is really a free speech statute, not a religious liberty statute. Equal Access and Moments of Silence, in volume 5 at 6, will address it in detail.

PART ONE

The Federal Religious Freedom Restoration Act

In Employment Division v. Smith (1990), the Supreme Court held that the Free Exercise Clause simply does not apply to neutral and generally applicable laws. That decision, and the dispute over exactly what it means, are addressed in volume 2.

The decision drew a legislative response from Congress and numerous state legislatures. The resulting federal statute was called the Religious Freedom Restoration Act, or RFRA. The state laws generally carry the same or a similar name; they are referred to collectively as state RFRAs.

The key operative provision of state and federal RFRAs is the same. These laws provide that government may not substantially burden a person’s exercise of religion, unless burdening that person is the least restrictive means to further a compelling government interest. They require the government to prove why it cannot afford to grant a religious exemption.

Section A addresses the effort to enact the federal RFRA. It consists mostly of congressional testimony and of short articles addressed to religious conservatives who doubted or opposed RFRA. There are also two more substantial scholarly articles, published near the end of the legislative process.

RFRA was immediately challenged as unconstitutional, and Section B addresses its constitutionality as applied to state law. There are briefs and the oral argument from City of Boerne v. Flores (1997), the case that held RFRA unconstitutional as applied to the states. And there is significant scholarship from both before and after that decision.

RFRA also presented issues of interpretation, and those are addressed in Section C in scholarship, a brief, and letters to public officials.

The highest profile set of disputes about the interpretation of RFRA was the contraception litigation, and these cases get separate treatment in section D. There are two amicus briefs and a number of short pieces.

State RFRAs are the subject of Part Two of this volume. The federal RFRA’s constitutionality as to federal law is deferred to volume 4.

A. Enacting the Federal Religious Freedom Restoration Act

Employment Division v. Smith, in which the Supreme Court held that the Free Exercise Clause does not apply to neutral and generally applicable laws, was decided in April 1990. Religious and civil liberties organizations soon joined together in the Coalition for the Free Exercise of Religion. The Coalition’s goal was to enact statutory protection for the free exercise of religion—a statutory right modeled on the pre-Smith constitutional right. Rep. Stephen J. Solarz (D-New York), with a large number of bipartisan cosponsors, soon introduced the Religious Freedom Restoration Act. In the Senate, the lead cosponsors were the very liberal Edward M. Kennedy (D-Massachusetts) and the very conservative Orrin G. Hatch (R-Utah).

The Coalition was a remarkable group that spanned the political and theological spectrum from left to right and from religious to secular. Its membership is listed in an early footnote in Interpreting the Religious Freedom Restoration Act, in this volume at 331. The Coalition agreed on only one thing—that the free exercise of religion should have strong and judicially enforceable protection. Its members disagreed about which government reasons for limiting religious liberty were compelling; they disagreed about what counted as a burden on the exercise of religion; they disagreed about nearly every issue that arises under the Establishment Clause. The Coalition was held together by a commitment to leave all these issues out of the bill, and to simply enact the basic principle: a government-imposed burden on religion must serve a compelling interest by the least restrictive means.

The opposition to RFRA came from surprising places—mostly from religious conservatives. The initial opposition reflected generalized suspicion of the liberal and secular elements of the Coalition; if they were supporting a bill, there must be a trick in there somewhere. The most determined and effective opposition came from certain elements of the pro-life movement, including the United States Catholic Conference. In 1990, most legal observers expected that Roe v. Wade would soon be overruled and that the constitutional right to abortion would be eliminated. Of course this expectation turned out to be wrong. The Court substantially reaffirmed Roe in Planned Parenthood v. Casey (1992), and then the election of Bill Clinton postponed indefinitely the prospect of a Republican President appointing the fifth vote to overrule Roe. But in 1990, and continuing up to Casey, both the pro-life and the pro-choice movements thought the end of Roe was near. The pro-life movement held to that hope through election night in November 1992.

Some on the pro-life side feared that the Justices who overruled Roe would then hold that RFRA created a right to religiously motivated abortions. In their worst nightmares, every abortion clinic would have a form where patients could check a box for religiously motivated, and abortion would continue as before. This fear never made much sense, either legally or politically; it required an almost schizophrenic view of abortion on the part of the Justices interpreting the Constitution and the same Justices interpreting RFRA. Many in the pro-life movement recognized that, and they supported the bill from the beginning. But in the face of what they believed to be unspeakable evil, some in the pro-life movement were unwilling to take even the smallest risk. They could not live with the Coalition’s agreement to say nothing about abortion and other controversial issues; they wanted an amendment that would say that the bill created no right to abortion.

Of course, such an amendment was utterly unacceptable to the more liberal wing of the Coalition. Some pro-choice groups were willing to make free exercise and RFRA arguments for abortion, but they didn’t really expect to win with those arguments. Whatever the odds, they did not want the right they cared about most to be singled out for negative treatment. But the fundamental problem was that there were lots of other groups who would have liked exceptions for their pet causes, and the Coalition feared that if it said yes to one such group, it would be difficult or impossible to say no to all the others. The floodgates might open; the bill could be eroded by a whole series of exceptions. The conflict over abortion is why it took three and a half years to enact a bill that eventually passed by overwhelming margins.

Abortion was the dominant issue, but there were similar impasses over proposed amendments to preclude RFRA challenges to church tax exemptions or to programs that provide government funds to religious schools or social service agencies. These eventually became the subject of exceptions that were acceptable because they weren’t really exceptions: these had always been Establishment Clause issues, and no one really believed they were free exercise or RFRA issues.

There were also doubts about the bill’s constitutionality. There was not much real opposition on this ground, but there was some, and the constitutional issue was squarely raised. Members of Congress wanted reassurance, or perhaps just wanted to make a record that they had seriously considered the matter.

As most readers know, Congress eventually passed the Religious Freedom Restoration Act, and the Supreme Court held it unconstitutional as applied to the states in City of Boerne v. Flores (1997). In light of that outcome, confident statements from me and other supporters that the bill would be constitutional might seem tendentious or naive. Certainly we were not consciously tendentious; we accurately stated the law as the Supreme Court had decided it up to that time. Perhaps we were naive about the extent to which the Court’s new conservative majority would change that law. But congressional power to provide expansive protection for constitutional rights seemed like a settled feature of the constitutional structure, and as of the early 1990s, the Court’s decisions restricting congressional power had touched only collateral matters. Most of the lawyers and scholars working with the Coalition were either liberal civil libertarians or religious conservatives. We were not attuned to the scope of the secular conservative movement’s ambitions for limiting federal power, and the leaders of that movement did not oppose the bill. Lawyers and scholars more attuned to that movement saw the risk more clearly.

The articles and hearing testimony in this Section were mostly aimed at religious and pro-life conservatives. In 2018, as I write this introduction, hostility to Religious Freedom Restoration Acts comes from the left. But in the early 1990s, nearly all the opposition was coming from the right. Conservatives in the pro-life movement were the ones holding up the bill, and they were the ones who had to be persuaded. I understood their position on a range of issues and could write to some extent within their viewpoint, even though I shared almost none of it. The emphasis here is on why the bill was needed, why it was constitutional, and why the objections from the religious right were groundless.

On why the bill was needed, witnesses presented a worst-case interpretation of Employment Division v. Smith, and opponents of exemptions have criticized that testimony as dishonest. It was not. At the time of this testimony, the lower courts were also giving Smith a worst-case reading, a fact that is illustrated repeatedly in the writings that follow. Witnesses were describing existing reality. And it wholly misunderstands the legislative process to think that interest groups supporting a bill with active bipartisan legislative support should have advised Congress that it might wait and see if the courts would ease the problem over a period of years and eventually reduce the need for the bill.

The Scholarly …

Summary and Synthesis: The Crisis in Religious Liberty (1992) is derived from a speech in May 1991, when RFRA was bottled up in Congress and the judicial fallout from Smith was at its worst. The targets of the speech were conservative opponents of RFRA.

The Religious Freedom Restoration Act (1993) is an article derived from written statements to committees in both the House and the Senate. This is my most fully developed pre-enactment statement of the case for RFRA.

Free Exercise and the Religious Freedom Restoration Act (1994) is derived from a speech delivered at Fordham Law School on the day RFRA passed the Senate. It reviews the disputes over free exercise that made RFRA necessary and how its supporters hoped that RFRA would fix the problem.

… and the Legislative

Letter to the House Subcommittee on Civil and Constitutional Rights (1990) was written after the very first congressional hearing on RFRA, outlining the argument for the bill’s constitutionality.

An Open Letter to the Religious Community (1991), A Declaration: For the Religious Freedom Restoration Act (1992), and How to Restore Religious Freedom: A Debate (1992) were coauthored articles in First Things, the conservative journal of religion and public life, making the case for why religious conservatives should support the bill.

House Testimony (1992) and Senate Testimony (1992) are my oral testimony at the principal congressional hearings on RFRA. There are two appendices to the House testimony. My written statements at those hearings are omitted, because they are substantially duplicated by the later article, The Religious Freedom Restoration Act.

Letter to Senator Edward M. Kennedy (1993) addresses two issues that arose late in the legislative process: the demand for an amendment excluding prisons, and the relevance of the Supreme Court’s decision in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993).

Cross References

Of course the argument continued after the bill was enacted, and especially the constitutional argument continued. Post-enactment briefs and articles about the constitutionality of RFRA are in Section B. Conceptual Gulfs in City of Boerne v. Flores, at 270, discusses the testimony offered in support of RFRA and why it took the path it did.

Briefs and articles about the interpretation of RFRA—about what it means as applied to specific controversies—are in Section C.

Briefs and short articles about the contraception litigation are in Section D. The amicus brief in Burwell v. Hobby Lobby Stores, Inc., at 409, discusses the legislative history with a focus on the commitment to universality. The amicus brief in Zubik v. Burwell, at 444, discusses the legislative history of the requirement that burdens on religious exercise be substantial.

There are several citations in these materials to Douglas Laycock, Notes on the Role of Judicial Review, the Expansion of Federal Power, and the Structure of Constitutional Rights, 99 Yale L.J. 1711 (1990). That review essay addresses constitutional law generally, not religious liberty in particular, so it will not be included in these volumes. The citations are mostly to an analysis of the compelling interest test.

Letter to the House Subcommittee on Civil and Constitutional Rights

Religious Freedom Restoration Act of 1990: Hearing before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary on H.R. 5377, 101st Cong. 72 (Sept. 27, 1990)

This is my earliest published statement addressing the constitutionality of the Religious Freedom Restoration Act—the first draft of an argument that would eventually be developed at much greater length. This early version sticks close to the Supreme Court’s cases; the larger context mostly came later. It is a familiar principle that Congress cannot violate or disregard constitutional rights announced by the Supreme Court. But RFRA was not trying to violate a judicially announced constitutional right; it was trying to create a statutory right where the Court had declined to find a constitutional right.

The question of constitutional power arose at the first committee hearing. No constitutional scholar testified at that hearing, and after the hearing someone—possibly Dean Kelley of the National Council of Churches, who did testify at the hearing—asked me to respond. I responded with this letter to Rep. Don Edwards (D-California), who chaired the Subcommittee on Civil and Constitutional Rights. I was little known in Washington in 1990, and utterly unknown to members of Congress; this letter must have arrived out of the blue. Occasional statements by others that I drafted RFRA, or that I was the leading force behind RFRA, are greatly exaggerated.

I understand that you recently held hearings on H.R. 5377, the proposed Religious Freedom Restoration Act, and that the question arose at those hearings whether the Act is within the power of Congress. I am able to speak to that issue, and I request that you include this letter in the official record of the hearings on H.R. 5377.

I have taught constitutional law for fifteen years, and I have published widely in the leading law reviews, especially on questions of religious liberty. The views expressed in this letter are my personal judgments as a scholar; it should be obvious that The University of Texas takes no position on the question.

The Act would restrict the power of states to regulate or prohibit religious exercise pursuant to facially neutral laws. It is my judgment that Congress has power to enact such a law under section 5 of the Fourteenth Amendment. Repeated majorities of the Supreme Court have upheld analogous exercises of congressional power to enforce the Reconstruction Amendments, and every justice has joined in such opinions (with the obvious exception of Justice Souter, who is confirmed but not yet sworn in as I write). Some justices have raised questions about the boundaries of congressional power in separate opinions, but the proposed Act appears to be within the bounds that these justices have recognized.

I. Cases Recognizing Congressional Power

Section 5 gives with respect to the Fourteenth Amendment the same broad powers expressed in the Necessary and Proper Clause with respect to Article I. Katzenbach v. Morgan, 384 U.S. 641, 650 (1966). Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, is within the power of Congress, unless prohibited by some other provision of the Constitution. Ex parte Virginia, 100 U.S. 339, 345–46 (1879). Similar enforcement provisions in sections 2 of the Thirteenth and Fifteenth Amendments have been given similar interpretations, and the cases are often cited interchangeably. See Fullilove v. Klutznick, 448 U.S. 448, 477 (1980) (plurality opinion); id. at 500 (Powell, J., concurring); City of Rome v. United States, 446 U.S. 156, 207–08 n.1 (Rehnquist, J., dissenting).

It is the Fourteenth Amendment that makes the Free Exercise Clause binding on the states. Employment Division v. Smith, 494 U.S. 872, 876–77 (1990); Cantwell v. Connecticut, 310 U.S. 296 (1940). Thus, congressional power to enforce the Fourteenth Amendment includes congressional power to enforce the Free Exercise Clause. The proposed Act is well adapted to carry out the objects of the Free Exercise Clause—to protect religious liberty and to eliminate laws prohibiting the free exercise of religion.

The Supreme Court of Oregon recently passed on the precise question: Congress, of course, has the power under section 5 of the Fourteenth Amendment to protect against state infringement what it believes to be free exercise of religion under the First Amendment. Smith v. Employment Division, 763 P.2d 146, 149 (Or. 1988), rev’d on other grounds, 494 U.S. 872 (1990). The Oregon court thought that mere legislative history was enough to bind it, and that a statute was unnecessary. The Supreme Court of the United States did not consider the issue, presumably because Congress must enact a statute before the issue is properly posed. The Religious Freedom Restoration Act would be such a statute.

What may make the Act seem anomalous at first blush is that it seems to attempt to overrule the Supreme Court’s decision in Smith. But the statute would not overrule the Court; rather, it would create a statutory right where the Court declined to create a constitutional right. This distinction is not a mere formality; it has real consequences that I explore in part III of this letter. And there is nothing unusual about Congress exercising its section 5 power in this fashion.

The express congressional power to enforce the amendment is independent of the judicial power to adjudicate cases and controversies arising under it. Congress is not confined to the insignificant role of abrogating only those state laws that the judicial branch was prepared to adjudge unconstitutional. Katzenbach v. Morgan, 384 U.S. 641, 659 (1966). Thus, Congress may sometimes provide statutory protection for constitutional values that the Supreme Court is unwilling or unable to protect on its own authority.

The clearest illustration of this power is the Voting Rights Act, in which Congress has forbidden discriminatory practices that the Supreme Court had been prepared to tolerate. The Supreme Court has held that literacy tests for voting do not violate the Equal Protection Clause, Lassiter v. Northampton Election Board, 360 U.S. 45 (1959), but that Congress may ban literacy tests for voting, Oregon v. Mitchell, 400 U.S. 112, 131–24, 144–47, 216–17, 231–36, 282–84 (1970) (five separate opinions, collectively joined by all nine justices); Gaston County v. United States, 395 U.S. 287 (1969); Katzenbach v. Morgan, 384 U.S. 641, 649–50 (1966); South Carolina v. Katzenbach, 383 U.S. 301 (1966). Similarly, the Court has held that electoral practices with racially discriminatory effect do not violate the Constitution, City of Mobile v. Bolden, 446 U.S. 55 (1980), but that Congress may forbid such practices pursuant to its section 5 powers, Thornburg v. Gingles, 478 U.S. 30 (1986); City of Rome v. United States, 446 U.S. 156, 172–83 (1980).

Much of the law of private racial discrimination depends on Congress’s analogous powers under section 2 of the Thirteenth Amendment. No one would suggest that the Supreme Court could, on its own authority to adjudicate cases arising under the Thirteenth Amendment, prohibit all private discrimination in the making of contracts or the sale and ownership of property. There is no case rejecting such a claim because no one has been bold enough to present it. But Congress has banned all such discrimination pursuant to its power to enforce the amendment. Runyon v. McCrary, 427 U.S. 160, 179 (1975); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 437–44 (1968).

These holdings were not limited—indeed, they were implicitly reaffirmed—by Patterson v. McLean Credit Union, 491 U.S. 164, 171–75 (1989). Patterson unanimously reaffirmed Runyon’s holding that the Reconstruction civil rights acts forbid private discrimination, which necessarily assumes that Congress has power to forbid private discrimination not forbidden by the Constitution itself. The controversial holding in Patterson went only to the range of private conduct covered; it cast no doubt on the constitutional rule that Congress can reach private discrimination pursuant to its power to enforce the Thirteenth Amendment.

Most recently, the Court relied on section 5 of the Fourteenth Amendment to explain why Congress may, but state and local governments may not, authorize preferences for racial minorities without a finding of past discrimination. Compare Metro Broadcasting, Inc. v. Federal Communications Comm’n, 497 U.S. 547, 563–66 (1990), and Fullilove v. Klutznick, 448 U.S. 448, 476–78 (1980) (plurality opinion joined by Justices Burger, White, and Powell), with City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1990), and Wygant v. Jackson Board of Education, 476 U.S. 267 (1986). The Court has never said that the Constitution requires such preferences of its own force.

All incumbent members of the Court have recognized Congress’s section 5 power to go beyond the limits of Supreme Court decisions; the only disagreement is over how far beyond. Just this June, the Court was unanimous on the point in Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990). The five-justice majority relied on section 5 to uphold racial preferences in the award of broadcast licenses. Id. at 563–66. The four dissenters thought the section 5 power irrelevant to a statute governing federal agencies, but they recognized that Congress has considerable latitude, presenting special concerns for judicial review, when it exercises its ‘unique remedial powers … under § 5.’ Id. at 605, quoting the plurality opinion in J.A. Croson v. City of Richmond.

The Croson plurality, consisting of Justices O’Connor, Rehnquist, and White, states that: "The power to ‘enforce’ may at times also include the power to define situations which Congress determines threaten principles of equality and to adopt prophylactic rules to deal with those situations." 488 U.S. 469, 490 (1989) (emphasis in original). Justices Kennedy and Scalia recognized the accuracy of the plurality’s account, but questioned its application to racial preferences. Id. at 518 (Kennedy, J., concurring), id. at 521–22 (Scalia, J., concurring). As Justice Kennedy put it, The process by which a law that is an equal protection violation when enacted by a State becomes transformed to an equal protection guarantee when enacted by Congress poses a difficult proposition for me.

II. The Limits of Congressional Power

Only a few opinions suggest limits to the reach of congressional power to enforce the Fourteenth Amendment. The most obvious is that Congress may not restrict, abrogate, or dilute the protections of the bill of rights in the guise of enforcing them. Katzenbach v. Morgan, 384 U.S. 641, 651 n.10 (1966). Thus, Congress cannot evade Supreme Court decisions protecting constitutional rights, although it can supplement Supreme Court decisions refusing to protect constitutional rights. It is this limitation that fuels Justice Kennedy’s doubts about congressionally mandated racial preferences. If racial preferences actually violate the Equal Protection Clause, as he apparently believes, then mandating these violations of the clause is not a means of enforcing the clause.

Congressional power under section 5 is also subject to other express allocations of power in the Constitution. Thus, in Oregon v. Mitchell, 400 U.S. 112 (1970), a majority of the Court invalidated a provision requiring states to extend voting rights to citizens aged eighteen and over.

The justices in the majority concluded that the text of the Constitution or the clear intent of the Founders reserved to states the power to determine the qualifications of their own electors, subject only to the express amendments concerning race, sex, and poll taxes. See 400 U.S. at 124–31, 154–213, 293–96 (three opinions joined by Justices Black, Harlan, Stewart, Burger, and Blackmun).

Finally, Congress may not assert its section 5 powers as a sham to achieve ends unrelated to the Fourteenth Amendment. Congress may not act under section 5 where it does not believe that a constitutional right is at stake, or perhaps where there could be no plausible claim that a constitutional right is at stake.

This is the point of the dissenting opinion in EEOC v. Wyoming, 460 U.S. 226, 259–63 (1983) (joined by Justices Burger, Powell, Rehnquist, and O’Connor), rejecting congressional power to prohibit mandatory retirement for state employees. The dissent said that Congress may act only where a violation lurks. The flaw in the Commission’s analysis is that in this instance, no one—not the court, not the Congress—has determined that mandatory retirement plans violate any rights protected by these amendments. Id. at 260. The opinion pointed to congressional enactment and retention of mandatory retirement for several classifications of federal employees to show that Congress did not think that mandatory retirement was unconstitutional. The dissent recognized that the Court’s decisions allow Congress a degree of flexibility in deciding what the Fourteenth Amendment safeguards. Id. at 262. The majority upheld the statute on Commerce Clause grounds and did not speak to the section 5 issues.

III. The Religious Freedom Restoration Act

The Religious Freedom Restoration Act does not run afoul of these limitations. First, there is no plausible claim that the Act would violate the Court’s interpretation of the Free Exercise Clause or any other right incorporated into the Fourteenth Amendment. Employment Division v. Smith reaffirms that legislative exemptions to protect religious exercise are expected … permitted, and even desirable. 494 U.S. at 890. The Court unanimously rejected an Establishment Clause challenge to legislative exemptions in Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987).

Second, the Act does not violate any other express allocation of power in the Constitution. The federal Constitution does not recognize or preserve any specific state power to regulate religion. The state regulatory powers that would be affected by the proposed Act are part of the general reserve of state powers, fully subject to the Fourteenth Amendment.

Third, the Act does not assert Fourteenth Amendment power where there is no plausible Fourteenth Amendment claim. Quite the contrary, it is plain that the Act protects religious exercise from prohibitions; there is no plausible claim that it does anything else.

The Act is necessary because the Supreme Court refused to provide similar protection as a matter of independent constitutional interpretation. But the opinion unambiguously acknowledged that the conduct at issue is religious exercise. The ‘exercise of religion’ often involves not only belief and profession but the performance of (or abstention from) physical acts. 494 U.S. at 877.

The Court interprets the Constitution of its own force to protect these religious acts at least from discriminatory regulation. A state would be ‘prohibiting the free exercise [of religion]’ if it sought to ban such acts or abstentions only when they are engaged in for religious reasons, or only because of the religious belief that they display. Id. It is equally clear that the Court would find a constitutional violation if a state banned a religious act for some denominations but not for others. The Smith opinion upholds only neutral law[s] of general applicability. Id. at 879.

From the perspective of a believer whose religious exercise has been prohibited, it makes little difference whether the prohibition is found in a discriminatory law or in a neutral law of general applicability. Either way, he must abandon his faith or risk imprisonment and persecution. Either way, it is undeniably true that his religious exercise has been prohibited. The Smith opinion does not deny that this is a plausible reading of the constitutional text. The Court says only that "we do not think the words must be given that meaning." Id. at 877 (emphasis added).

The Court’s reason for avoiding that reading is institutional. The opinion is quite clear that the Court does not want final responsibility for applying the compelling interest test to religious conduct. The majority does not want a system "in which judges weigh the social importance of all laws against the centrality of all religious beliefs." Id. at 890 (emphasis added); see also id. at 889 n.5. To say that an exemption for religious exercise "is permitted, or even that it is desirable, is not to say that it is constitutionally required, and that the appropriate occasions for its creation can be discerned by the courts." Id. at 890.

These institutional concerns do not apply to the Religious Freedom Restoration Act. Congress, rather than the Court, will make the decision that religious exercise should sometimes be exempted from generally applicable laws. And Congress, rather than the Court, will retain ultimate responsibility for the continuation and interpretation of that decision.

Of course the courts would apply the compelling interest test under the Act, and these decisions would require courts to balance the importance of government policies against the burden on religious exercise. But striking this balance in the enforcement of a statute is fundamentally different from striking this balance in the independent judicial enforcement of the Constitution. Under the statute, the judicial striking of the balance is not final. If the Court strikes the balance in an unacceptable way, Congress can respond with new legislation.

Thus, the Act would protect the religious exercise that the Court felt unable to protect on its own authority, and the Act would solve the institutional problem that inhibited the Court from acting independently. The difficulties the Court identified in Smith are a perfect illustration of why there is need for independent power to enforce the bill of rights in both the judiciary and the Congress.

Our Constitution addresses the Madisonian dilemma of protecting the minority from the majority without subjecting the majority to control by the minority. The Court’s insulation from the normal political processes is an essential virtue in protecting the minority. But in the difficult balancing of interests required by some free exercise cases, the Court now feels the need for a majoritarian voice. Because of the size and diversity of the national polity, Congress can provide more reliable majoritarian protection for individual rights than the states can provide. For a recent judicial explanation of this essential Madisonian idea, see City of Richmond v. J.A. Croson Co., 488 U.S. 469, 521–23 (1989) (Scalia, J., concurring).

By creating judicially enforceable statutory rights, Congress can call on the powers of the judiciary that the Court feared to invoke on its own. Because the rights created would be statutory, Congress can retain a voice that it could not have retained if the Court had acted on its own. By legislating generally, for all religions, instead of case-by-case for particular religions, Congress can reduce the danger that it will not respond to the needs of small faiths. If Court and Congress cooperate in this way, then the oppression of small faiths need not be, as the Court feared, an inevitable consequence of democratic government. 494 U.S. at 890. One function of section 5 of the Fourteenth Amendment is to provide for just such interbranch cooperation.

An Open Letter to the Religious Community

First Things 44 (March 1991)

With Edward McGlynn Gaffney and Michael W. McConnell

Because so much of the opposition to the Religious Freedom Restoration Act came from conservative elements in the religious community, First Things, the conservative journal of religion and public life, became a natural forum for debate and discussion of the bill.

Conservative believers were among the principal intended beneficiaries of the bill. But many of them had reservations of principle, of practical politics, or both. Some were suspicious of Congress; many were suspicious of the liberal and secular elements of the broad coalition supporting RFRA. Some were resistant to compromise, inclined to reject the good in hopes of the perfect. This Open Letter was addressed to the first round of such objections; it emphasizes political reality and the practical consequences of support, opposition, or delay. The abortion argument had not yet emerged as the focus of opposition.

We published another version of this article, different only in minor details, in 11 Christian Legal Society Quarterly 17 (No. 4, Winter 1990), under the title An Answer to Smith: The Religious Freedom Restoration Act. That version is omitted here.

Ed Gaffney was dean of the Valparaiso University School of Law and still serves on that faculty. Michael McConnell was then professor of law at the University of Chicago, later a judge on the United States Court of Appeals for the Tenth Circuit, and now professor of law at Stanford.

The signers of this letter have been active for many years in both scholarship and litigation regarding religious liberty, and have close associations with many in the religious community who are now deciding whether to support the proposed Religious Freedom Restoration Act. Based on both our researches as scholars and our experience as litigators, we enthusiastically endorse the proposed Act and urge you to support it as well. We agree with some of the criticisms of the specific language of the bill in its present form and understand that its sponsors and supporters are open to improvements in the drafting and hearing process. We believe it is important for the religious community to unite in support of the bill’s basic approach. If we do not speak out in support of the freedom of religious conscience, who will?

The Supreme Court’s decision in Employment Division v. Smith (1990) was a sweeping disaster for religious liberty. The Court decided that a law forbidding a religious practice presents no issue to be decided under the Free Exercise Clause, so long as it is framed in terms that are ostensibly neutral and generally applicable. The fact that the case involved a worship service (the sacramental use of peyote in the Native American Church) lends credence to the Court’s statements that the importance or centrality of a religious practice is irrelevant. Smith applies only to neutral laws of general applicability, but clever lawyers can state almost any law in formally neutral terms by carefully selecting the level of generality at which the law will be stated. Thus, the implications of Smith affect every free exercise controversy in America.

We are not aware of any disagreement in the religious community about the desirability of overruling Smith. We do understand that some religious leaders and their counsel have reservations about the means. We believe that something like the proposed Religious Freedom Restoration Act is the only promising means.

The principal reservation is that it would be better, as a first step, to attempt to get the Court itself to change Smith. Further litigation might proceed on two fronts. First, litigants might ask the Court to overrule Smith and return to the law of Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972), cases holding that the government may not burden the practice of sincerely held religious beliefs unless it is the least restrictive means of attaining a compelling governmental interest. We believe that this has very little chance of success. Prompt overrulings of the Court’s mistakes are extraordinarily rare, and they usually result at least in part from new appointments. In this case, new appointments are more likely to increase the majority for Smith. One of the three dissenters has already retired; the other two are over eighty and have health problems. New appointments for the foreseeable future will presumably come from the same political and jurisprudential perspective that created the Smith majority.

Smith has deep roots in the current majority’s jurisprudential philosophy, and that is not likely to change. Smith results from the same deference to democratic decision-making that made the Court so reluctant to apply Sherbert and Yoder vigorously and honestly in the years prior to Smith. The Court’s avoidance of judicial activism may be a good thing in some contexts; we believe it is misplaced in the context of a textually clear constitutional right.

It is true that the Court decided Smith without briefing or argument on whether the Free Exercise Clause protects religious conduct. The Justices were unaware of Michael McConnell’s work on the original understanding of free exercise, and they probably did not appreciate all the implications of what they were doing. But all of this was brought to their attention in the unsuccessful petition for rehearing. The chances of a flat overruling are very low.

The other litigation approach is to fit most free exercise cases into one of the limits or exceptions in the Smith opinion. We (among others) have taken that approach in litigation and discussed its merits and limitations in law review articles. But again, there is little reason for optimism. Competent counsel for state and local governments are arguing with equal vigor that no cases fit into any of the exceptions. It is unlikely that the Court will allow the exceptions to swallow its new rule. It is far more likely that the Court will gradually eliminate the exceptions as inconsistent with the logic of Smith. It is not encouraging that the first lower court decisions applying Smith have given short shrift to its limitations and exceptions.

Either litigation strategy is likely to take several years. We are told by persons whose political judgment we respect, including congressional staff and persons with experience lobbying for religious causes, that the chances of enacting the Religious Freedom Restoration Act will steadily decline over time. The repudiation of prior law is fresh in memory now; the angry reaction is now; much of the coalition is assembled now. The bill’s supporters have enlisted more than one hundred cosponsors. If the religious community walks away from those cosponsors now, it will have much less credibility when it returns to seek their help in five years. We believe it would be a serious mistake to let the legislative opportunity pass while we pursue a judicial remedy that is unlikely to succeed.

A second reservation about the bill is closely related to the first. It is that the bill delivers free exercise rights into the hands of Congress, leaving them vulnerable to future amendment or repeal. The dangers of amendment or repeal are real, but the Religious Freedom Restoration Act is not the culprit. The Court in Smith delivered free exercise rights into the hands of Congress and of every state legislature, city council, and administrative agency in the land. Every lawmaking body is now free to forbid religious exercise with formally neutral rules. Exemptions must be won over and over again at every level of government. Every legislative fight for an exemption will be in the context of some specific legislative proposal supported by its own coalition of interest groups, and those coalitions will resist any exemptions. Any exemptions that are granted will be vulnerable to amendment or repeal, or to overriding legislation from another level of government. Needless to say, nonmainstream religions, and those whose tenets are particularly antithetical to powerful political interests, are particularly at risk if exemptions are decided on a piecemeal basis.

The Religious Freedom Restoration Act would confine the issue to Congress and, more importantly, it would present the issue in general terms. Congress would be asked to vote on the principle of exemptions for religious exercise, with a broad coalition urging an affirmative vote. Congress would not be asked to decide the legitimacy of particular religious practices or to balance religious liberty against the demands of other interest groups on a case-by-case basis. By legislating generally, Congress would avoid the danger of protecting only large and influential faiths while ignoring the needs of small or unpopular faiths. The Court has thrown free exercise into the political process, and this bill is the most favorable ground on which to wage the political fight.

A third reservation is that the bill would somehow change the rules of standing, or the rules of substantive law, to create free exercise claims that could not have existed before and that might be undesirable in the judgment of some denominations. We see no basis whatever for this fear. The law of standing will not be affected in any way, and the substantive law will at most be restored to the principles of Sherbert and Yoder. Any claim that could be brought under the Act could be brought under the Free Exercise Clause if Smith did not stand in the way.

Fourth, some have expressed reservations about the substantive standard for governmental interest articulated in the bill: that the restriction be essential to further a compelling governmental interest. The concern is that this language, which was taken from numerous Supreme Court free exercise decisions prior to Smith, may not adequately protect religious freedom.

We must acknowledge that one of us (McConnell) has expressed the view in print that the compelling interest test is not the best possible formulation of either the original understanding of the free exercise principle or of a workable modern interpretation. Nonetheless, for purposes of this legislation, we agree that the term compelling interest is the best formulation for a statute that has as its purpose the restoration of constitutional principles as they existed prior to Smith.

At a verbal level, the compelling interest test is the strongest test in constitutional law. In the area where the test originated—invidious discrimination against racial minorities—the Supreme Court has not found the test satisfied in almost half a century. If taken seriously, the test would be more than strong enough to protect religious liberty. To be sure, in a series of decisions in the 1980s, the Supreme Court purported to apply the compelling interest test, while giving it so little bite that it more closely resembled a rational basis test than a compelling interest test (for example, United States v. Lee (1982)). The limitations of language are such that no verbal standard is impervious to misapplication.

But the solution to this problem is not to craft new language, which would create great uncertainty about the meaning of this legislation. The better solution is to explain in the committee report that the compelling interest test is a reference to the test applied in Wisconsin v. Yoder (1972), Thomas v. Review Board (1981), and Sherbert v. Verner (1963). There is no need for Congress to express a view on whether other cases, in which free exercise claims were rejected by the Court, were correctly decided.

We would also recommend against any attempt by Congress to address specific cases or contexts involving free exercise claims. Conflicts between religious conscience and governmental authority can arise in virtually any context, and it would not be feasible for Congress to anticipate them all. Moreover, almost by definition free exercise claims involve the rights of minorities against the majority. While a broad coalition can agree in principle on the importance of free exercise of religion, it is too much to ask that they agree on the specifics of religious practices about which they will, naturally, entertain different convictions. The compelling interest test of the proposed bill, being general, is superior to any attempt to address particular cases in detail.

Finally, some concern has been expressed about the potential impact of the bill on the Supreme Court’s interpretation of the Establishment Clause. Many of the religious and civil liberties groups that agree on the proper interpretation of the Free Exercise Clause do not agree about the Establishment Clause. Some think that the Court’s current test is too stringent; some think it is too lenient; some think it is about right. It has been suggested by some who are critical of the current Establishment Clause test that section 6 of the proposed bill might freeze that interpretation in place. We do not think this criticism is well founded.

Section 6 provides: Nothing in this Act limits or creates rights under that portion of the first article of amendment to the Constitution that prohibits laws respecting an establishment of religion. In our judgment, this language is purely precautionary and has no substantive effect at all. The Religious Freedom Restoration Act does not address the Establishment Clause, and (with or without section 6) does not affect it.

The relation between the Free Exercise and Establishment Clauses is a source of great contention. Some believe that the pre-Smith free exercise interpretation is inconsistent with the Court’s current interpretation of the Establishment Clause. Others do not. This bill does not, and should not, resolve that question. All it does is return the question to the same state of contention and confusion that reigned before the decision in Smith.

In conclusion, we strongly endorse the concept of the Religious Freedom Restoration Act (even though we believe the language of the bill should be modified in some respects). We share the regrets and concerns of some critics of the bill that these principles are now to be given mere statutory protection, when we are convinced that they are entitled to constitutional protection. But if statutory protection is available, it can supplement constitutional protection. The fear that statutory protection might be counterproductive is inconsistent with modern experience. Racial minorities have sought protection from the courts and the Constitution, but they also turned to Congress and procured passage of the great civil rights acts. Even more pertinent to our situation is the Equal Access Act, by which Congress protected the constitutional rights of student religious groups struggling against discrimination in the high schools, where years of litigation in the courts had failed to win redress. Congress’s emphatic defense of religious free speech rights over countervailing Establishment Clause fears surely contributed to the Supreme Court’s thinking on the constitutional question, as well.

We have come to think of the courts as the branch of government most responsible for protecting liberty. But the original conception was that our representative institutions would themselves be the first protectors of our liberties, with the courts serving as backstops when the representative branches failed. One of the virtues of separation of powers is that each branch of government can protect liberty when it is so inclined, and that each branch can fill part of the gap left by the errors and omissions of the other branches.

We therefore believe that passage of a properly worded Religious Freedom Restoration Act is the best practicable means of correcting a grave interpretive error by the Supreme Court, and will help to ensure that all Americans, whatever their religious faith, will be protected in their exercise of religion, as the framers and ratifiers of our Constitution intended them to be.

This article’s view that the Supreme Court had merely purported to apply the compelling interest test to free exercise cases in the 1980s is widely held, and it was the view of my two coauthors. It is not my view. My view of these cases is set out in this volume at 93–96 and 345–52.

Summary and Synthesis: The Crisis in Religious Liberty

60 George Washington Law Review 841 (1992)

This article is based on the closing address at a conference on Religion in Public Life: Access, Accommodation, and Accountability, which met on May 31 and June 1, 1991. Six of the addresses at the conference were arranged in three pairs; they were supposed to take maximalist and minimalist positions on issues of access, accommodation, and accountability for religious believers and organizations. My assignment was to summarize and synthesize the speakers who preceded me. This led to a brisk survey of the field in the first half of this article.

This conference met at what turned out to be a low ebb for free exercise of religion. It was after Employment Division v. Smith (1990) greatly reduced constitutional protection for free exercise, and before Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993) rejected the worst interpretations of Smith. It was before the Religious Freedom Restoration Act, and at a time when that legislation was frozen in Congress by opposition from religious conservatives. The abortion issue had just begun to emerge; parts of the pro-life movement feared that RFRA would somehow be used to re-create a right to abortion if Roe v. Wade were overruled. The rest of the Coalition supporting RFRA found that fear extraordinarily implausible. This conference was attended by many religious opinion leaders, and part of my task was to persuade them that RFRA was important to their interests.

I did not exaggerate any of the examples in this article, but in the most dramatic examples, the worst outcomes were eventually avoided by subsequent legislation or court decisions. Probably I should have had more confidence in the ability of the American political and constitutional system to work things out and correct the worst abuses. But when I spoke, the abuses were many and grave, and it was hard to see where corrective action would come from.

Oliver Thomas, a lawyer and a Baptist minister who led the effort to enact RFRA, liked this talk. He said to me afterwards, Doug, I knew you were a good lawyer, but I didn’t know you could preach. I took it as a compliment.

The Essays in this Symposium are excellent, but their tendency toward moderation shelters readers from some of the harshest attacks on religious liberty. No one presents the minimalist position on accommodation; Ira Lupu does not come close.¹ No one presents the maximalist position on accountability; Paul Weber does not come close.² No one in this symposium takes seriously the possibility that Employment Division v. Smith³ might be defensible.

Michael McConnell⁴ and William Ball⁵ are more aggressive on the other side, but neither conveys anything like my sense of crisis about the current state of religious liberty. Richard Neuhaus⁶ and Marvin Frankel⁷ come closer to maximalist and minimalist positions, but at such a high level of generality they never really join issue. So I want to talk about some of the things that were left out, as well as emphasize some of the most important things that have been said.

Religious issues are so intractable because different people have fundamentally different perceptions of reality. Serious secularists and religious believers do not understand each other well enough to even talk about the issues. Believers from seriously different traditions sometimes have the same problem, especially if one is highly acculturated and the other highly unacculturated, in Angela Carmella’s terms.⁸

These differences in perception are reflected in both hostility and incomprehension. As between some serious secularists on one side, and some serious religious believers on the other, there is little more equal concern and respect than four hundred years ago, when we were burning each other at stakes. If you read the direct mail fundraising literature some of these groups send out, it is clear that there are people on all sides of these issues who think that folks on the opposite side are a force for evil in the world, and a serious threat to the things we hold dear. We have reduced the level of violence from four hundred years ago, and that is a great advance. We have expanded the circle of people who are well-enough accepted to be part of the governing coalition, and that is a great advance. But for the many people who remain outside that circle, I am not sure we have advanced beyond grudging and hateful tolerance.

There is also simple incomprehension. Recently I had lunch with the dean of a major law school—a church affiliated law school, although I should say it is a highly acculturated one. He said that nothing in the recent religion cases affected the core of religious exercise, and he was unmoved by examples. He doubted that Native American peyote use was really worship; he doubted that a ban on communion wine would affect Catholic worship. Finally I said to him, "You