Scalia disavows Boerne

[Michael Zimmer]

Boerne is correctly decided if RIFRA was an attempt to legislatively
overrule a constitutional decision in Smith.  The C&P test, however, is
wrong since, at its core, it is premised on the Supreme Court being the
only determiner of equal protection values.  Section 5 gives Congress broad
powers to determine how to implement equal protection values (but not to
overturn final  constitutional decisions of the Supreme Court).  So,
Justice Scalia is right that the C&P test is a failure but he is wrong as
to what direction a more justified test would take the Court.

Michael J. Zimmer
Professor of Law
Seton Hall Law School
One Newark Center
Newark, NJ 07102
973.642.8833
973.642.8194 fax