RFRA, Amendment 2, and over-breadth

[Rick Hills]

        David Cruz writes:

>In Boerne, Justice Kennedy wrote:
>
>"RFRA is so out of proportion to a supposed remedial or preventive object
>that it cannot be understood as responsive to, or designed to prevent,
>unconstitutional behavior."
>
>It's not yet clear to me whether this is a statement about the intent
>of Congress or about RFRA's effect (or both), but haven't we heard this
>before?
>
>In Romer v. Evans, Justice Kennedy wrote:
>
>"[Amendment 2's] sheer breadth is so discontinuous with the reasons
>offered for it that the amendment seems inexplicable by anything but
>animus toward the class that it affects[.]"
>
>And again:
>
>"Amendment 2 ... inflicts on [gays and lesbians] immediate, continuing,
>and real injuries that outun and belie any legitimate justifications that
>may be claimed for it."
>
>
>-David Cruz, USC Law (Cal.)
>


        I agree that Kennedy's reasoning based on the breadth of Amendment 2 and
the breadth of RFRA is identical: in either case, he is looking for the
"objective purpose" of the law, the purpose that, in Marshall's words, the
law is "plainly adapted" to accomplish.  As folks on this list already
know, I think that that both RFRA and Amendment 2 have improper purposes
and that in both cases the impropriety can be inferred from the measures'
breadth.  I would not have referred to the legislative history in either
case to detect the impropriety.

        Would a narrower version of RFRA pass muster?  Does anyone have any
mini-RFRAs in mind that might bear a closer relationship to a proper
"remedial" purpose by addressing religious discrimination in specific
contexts -- zoning, licensing, etc.?

        Rick Hills
        University of Michigan Law School