RFRA & Federal Law

[Michael McConnell]

Kurt Lash writes:

> Putting his point in positive language,
> Michael claims "[b]y far the more plausible interpretation is that the
> framers expected the federal free ex clause to do for federal power
> approximately what the state free ex clauses did for state power."
>
>
>
> Think about that sentence for a moment--it cannot be correct.  Michael
> appears to concede that free exercise in the states was regulated in
> accordance with the state's established religion.  Indeed, I think the
> evidence in this regard is irrefutable.

Whoa! The free ex clauses in constitutions of states with established
churches are not different from the free ex clauses in states without
established churches. What this demonstrates is that people thought
that free ex could coexist with establishment, something very few of
us think today. Thus, for example, it was okay to tax everyone for
the support of a church (establishment) so long as those with
conscientious religious scruples were exempted (free ex). This does
*not* mean that free ex was incident to establishment.

>  The Constitution needed to be
> amended in order to give the federal government such power?  The
> *purpose* of the Bill of Rights was to cabin federal power and allay
> fears that the new federal government would attempt to involve itself in
> matters best left to the states.

The free ex clause does not give Congress any new power. It ensures
that Congress cannot use its enumerated powers in such a way as to
prohibit the free exercise of religion. This provision of the Bill of
Rights was primarily for the protection of individuals, not states.
The debates over the clause on the floor of the House do not tell us
much, but they do tell us that. (Of course, states theoretically
have greater power when the feds foreswear power, but since all
states except Connecticut had already protected free ex against state
power, in this case the dominant effect was liberal, not
federalistic.)
> > >

 -- Michael McConnell (U of Utah)