Abstract
In City of Boerne v. Flores , 2 the Supreme Court invalidated the Religious Freedom Restoration Act of 1993 (RFRA) on the round that it exceeded Congress's power to regulate state and local governments under section 5 of the Fourteenth Amendment. In striking down RFRA, the Court adhered to its ruling in Employment Division v. Smith 3 that the Free Exercise Clause gives religious practice almost no protection from a law that is formally neutral and generally applicable. Only in cases where religious practice is singled out for suppression can we be confident that the federal courts will intervene. Smith set out some potentially major exceptions to this rule, and careful litigation may expand their scope. But there is no denying that in our heavily regulated society, Smith allows religious exercise to be heavily regulated too. Congress recognized this and, through RFRA, tried to restore the requirement that government show a compelling need in order to override the demands of religious conscience. But the Court held in Boerne that when Congress enforces the provisions of the Fourteenth Amendment under section 5, it cannot adopt a substantive interpretation of constitutional rights that is fundamentally different from the Court's interpretation. After saying a few critical words about the Boerne decision, I will go on to address the two most important remaining topics: the validity of RFRA as applied to federal laws and regulations, and the constitutional prospects for new legislation to protect religious freedom against state and local laws of general ...