The most remarkable thing about City of Boerne v. Flores

[Marci Hamilton]

I agree with Eugene Volokh that it is striking that the Court sang in harmony
on federalism in the Boerne decision.  As the oral argument revealed, the
combination of RFRA's sweeping scope and its usurpation of the Court's power
over interpreting the Constitution likely persuaded the Justices that it was
necessary in this case above all others to come as close to unanimity as
possible.  I think that this also explains the relative brevity of the
concurrences and dissents.

On the issue whether the decision applies to federal law, I would assume it
does not, though the reasoning of the Court does not bode well for defending
the Act as applied to federal law.  The separation of powers point is stated
forcefully and often and would seem irrelevant of whether the law being
regulated is state or federal.  In addition, although only Stevens raises the
Establishment Clause point, certainly Justices Kennedy and O'Connor at oral
argument expressed grave concerns on this aspect of RFRA.

Marci Hamilton
Benjamin N. Cardozo School of Law
on leave at the Center of Theological Inquiry, Princeton Theological Seminary