Boerne and Treaty Power

[stoke001 at maroon.tc.umn.edu]

Why isn't the short answer to Kurt Lash's point something like this?:

1.  The Establishment Clause prohibits the federal government from
establishing a religion (whatever that means) or from interfering with
state establishments.  (Accord Lash)

2.  States are now prohibited from having established religions, by
virtue of the Fourteenth Amendment.  (Accord Lash, right?)

3.  Passing RFRA under the Treaty Power (if a valid exercise of the
treaty power) does not violate that component of the Establishment
Clause which (formerly?) prohibited federal interference with state
establishments, because there ain't none of them no more, and can't
be, under the Fourteenth Amendment.

Surely I'm missing something, but I just don't get it.

Michael Stokes Paulsen
University of Minnesota Law School