A short sketch, for those interested. Or you can go read all the opinions!Employment Division v. Smith is the central Supreme Court opinion interpreting the First Amendment of the Constitution's protection of religious liberty. Westlaw summarizes its holding as follows:

Although state would be prohibiting free exercise of religion in violation of free exercise clause if it sought to ban religious acts or abstentions only when they were engaged in for religious reasons, or only because of religious belief that they displayed, right of free exercise does not relieve individual of obligation to comply with valid or neutral law of general applicability on ground that law proscribes, or requires, conduct that is contrary to his religious practice, as long as law does not violate other constitutional protections.

As I said below, the key significance of this case is that it significantly loosened the standard for assessing most constitutional claims of religious liberty cases. That prior test required that government actions that substantially burden a religious practice must be justified by a compelling state interest and narrowly tailored to affect that interest as little as possible. (Sherbert v. Verner). Smith clearly says that legislatures can make exemptions from generally applicable laws for religious practices--I am not sure that it encourages such practices, as some have suggested in my previous thread.So Smith set the basic framework for FEDERAL CONSTITUTIONAL protection of religious liberty. What about the Religious Freedom Restoration Act, known as RFRA? I honestly don't see how it can be understood apart from Smith. Why? First, if you read the text of the Act, it's clear its whole purpose is to "undo" Smith and restore the prior test from Sherbert. That's the restoration at stake. To the extent that you can't understand any law without understanding its stated purposes, you can't understand RFRA as anything but the anti-Smith. (In other words, it is certainly possible that some hypothetical statute can be interpreted as a non-critical supplement to Smith--but not this statute.)Why does it matter? In my view, for pedagogical reasons. Even if RFRA did restore everything taken away by Smith, Smith, I think, sets too cavalier a tone toward religious liberty questions. Mike Moreland points out, as does the majority in Smith, that the Court has upheld most restrictions on religious liberty even when applying a strict srutiny test. That may be true. But it is not decisive. Practically speaking, lawmakers may decide not to pass laws that they think would clearly fail a strict scrutiny test. Moreover, the pedagogical power of the law is important. Smith's message, in my view, is insufficient in its respect for religious freedom.Although very short, RFRA purports to be very expansive in function--to cover all types of governmental action at every level of government. It purports, in a way, to be a super-law--not quite an ordinary statute.And that's part of what got it into trouble with the Supreme Court. In Boerne v. Flores, the Court struck down RFRA as applied to the states. Why? Well, believe it or not, the powers of the federal government are limited to what is anchored in the Constitution. The Supreme Court found that in RFRA, the Congress exceeded its authority under section 5 of the Fourteenth Amendment, thereby encroaching on the power of the states. It also did not escape the Court's notice that Congress was trying to "undo" their own interpretation of the Constitution.

Congress' power under 5, however, extends only to enforc [ing] the provisions of the Fourteenth Amendment. The Court has described this power as remedial, South Carolina v. Katzenbach, supra, at 326, 86 S.Ct., at 817818. The design of the Amendment and the text of 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. It has been given the power to enforce, not the power to determine what constitutes a constitutional violation. Were it not so, what Congress would be enforcing would no longer be, in any meaningful sense, the provisions of [the Fourteenth Amendment].

Some people call RFRA a "civil rights act," upon analogy to the Civil Rights Acts, which WERE upheld by the Court. It is important to point out that it is precisely this analogy between RFRA and the Civil Rights Acts which the Court rejected in Boerne.RFRA is just an ordinary statute--it is not a superstatute, it is not a quasi-constitutional behemoth statute. What follows from this? In my view, the clear conclusion that attempts to frame the bishops' religious liberty claims primarily as a matter of RFRA are mistaken.1. RFRA applies to the HHS regs--because they are regs, and a statute trumps regs. It wouldn't help if the offending provisions were explicitly in the health care reform law itself. RFRA can't bind future congresses. In that case, the bishops would have to argue on the basis of the constitutional law itself.2. Some of the problems mentioned by the bishops in their list of worries are state actions, not federal actions--such as Alabama's immigration law. Again, not resolvable under RFRA (although it is important to remember that STATE constitutional protections can be invoked against state laws.)Tomorrow I will say something about United States v.Lee.

Cathleen Kaveny is the Darald and Juliet Libby Professor in the Theology Department and Law School at Boston College.

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