RFRA blithely assumed unconstitional as applied to federal law

[Marci Hamilton]

As I understood the Court's questions at the BOERNE oral argument, various
members were sensitive to the distinction between RFRA as applied to federal
law and as applied to state law.  Thus, it is no accident that they combine
in BOERNE strong language indicating RFRA is in trouble under  a separation
of powers  theory with utter silence on the federal law issue.  As they often
do, they provided some hints but they want the lower courts to work through
the most persuasive approach to the question.  They are not locked into a
separation of powers analysis, but it would be difficult to uphold RFRA in
light of much of the language in BOERNE.  The threshold stumbling block for
RFRA proponents will be the severability argument.  There is nothing in the
statute that indicates that the state law aspect can be severed from the
federal law aspect.  As I point out in my Henhouse article, different
analyses must be applied to RFRA, depending on whether it applies to federal
law or state law.  Congress, its advisors, and early commentators treated the
Sec. 5 argument as sufficient to support RFRA's application to federal law,
which is plainly incorrect.  Having failed to consider that RFRA rested on
separate bases, one wonders if  there is a Lopez II issue lurking in RFRA as
applied to federal law.

  My guess is that the Court will invalidate RFRA as applied to federal law,
though the vote is unlikely to be the clean 7-0 vote in BOERNE.  As I say in
a couple of forthcoming articles (Nexus and Wm & Mary), BOERNE is at base a
structural reading of the Constitution.  When there are two structural errors
(violation of separation of powers and federalism), it is easier to find
consensus on the Court.  When a single structural error stands by itself, 5-4
decisions are more likely.


Marci Hamilton
Center of Theological Inquiry
Princeton Theological Seminary