RFRA blithely assumed unconstitional as applied to federal law

[Thomas C. Berg]

We've had this thread before, but it's worth reiterating a
couple of points:  The statements in Boerne about
separation of powers all make perfect sense within the
context of section 5.  Section 5 authorizes Congress to
enforce the Constitution, in particular section 1 of the
Fourteenth Amendment (and rights incorporated in it).  The
meaning of the Fourteenth Amendment is therefore the
operative determination as to whether Congress has power.
The Court said that it, not Congress, has the final word on
the meaning of the Constitution.  That makes some sense in
the section 5 context (I'm not saying it ultimately
convinces me) because the meaning of the Constitution is
the operative limit on Congress's power there, and if
Congress could act on its own interpretation of the
Fourteenth Amendment there would be very few if any limits
on the section 5 power. (Contrast this, for example, with a
religious freedom enactment based on the commerce power,
where Congress would only be able to reach religious
activity affecting commerce, and the Court would have the
power to make an independent judgment on what affects
commerce.)

I simply cannot believe that the same reasoning extends to
RFRA's application to federal law, where Congress does not
expand its power but limits itself by limiting the reach of
the laws it enacts.  As Andrew Koppelman pointed out, Smith
invited exemptions not required by the Free Exercise
Clause; and in many cases Congress has legislated
exemptions after the Court held no exemption was
constitutionally required (Congress did so after both
Goldman and Lyng).

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Thomas C. Berg, Cumberland Law School
Samford University
Email: tcberg at samford.edu