RFRA as a federal statutory right

[Jonathan Mallamud]

        Art Spitzer responds to my posting about the sweeping nature of RFRA
by stating that "Notwithstanding any other provision of the law..." is a
very common phrase.  He is certainly right, but generally those phrases
spell out very specific rights that are granted by the statute.  No doubt
there might be some statutes that with such phrases that have very broad
ramifications.  As far as such "Notwithstanding" provisions not being
thought to be problematic, "never" I think is too strong a word.  Sometimes
they are. Although I do not have a specific instance in mind I am sure that
some of them have produced problems of harmonizing two statutes.
        In following this list's discussion of RFRA, I have the impression
that the full scope of RFRA is not appreciated by many.  The Court in Flores
seemed to recognize its sweeping scope.  The difference between RFRA and
most "nothwithstanding..." provisions is that most such provisions create a
very specific right that Congress defines in the provision.  RFRA creates a
right not based on Congress' view of what specific exceptions should be made
to federal laws, but rather an open ended right to be defined by a mulitude
of varied religious practices, many of them not widely held.  Thus, the
exception to federal laws is not defined by Congress focusing on particular
actiivities that should be allowed but by Congress incorporating by
reference all religious activities (perhaps with a centrality requirement)
that may be impeded by all federal laws.  That to me is different from the
usual use of the "notwithstanding" provisions.

                        Jonathan Mallamud   Rutgers-Camden Law School
                                mallamud at crab.rutgers.edu