Boerne-Flores settlement -Reply

[Mark Tushnet]

This is a genuine question:  I have been of the
view that the strongest defense of RFRA (and
pre-Smith free exercise law) was that it gave
religious institutions leverage in negotiating
with bureaucrats and the like (because the track
record of success under pre-Smith law was not that
great from the religious institutions' point of
view).  But, from the outside, it looks as if the
existence of RFRA may have obstructed rather than
promoted a negotiated agreement in this case.  Do
people with closer knowledge of the case than I
have a view on this question?

Mark Tushnet
Georgetown University Law Center
600 New Jersey Ave. NW
Washington, DC  20001

202-662-9106
   (fax) 202-662-9497
tushnet at law.georgetown.edu