New Federal Legislation on Religion

[Mark Rahdert]

        While monitoring the discussion on the list about Congress's latest
efforts, I received an e-mail from a former student, Guenter Krings, who
practices law in Germany, letting me know that he had just published an
article in a German review discussing the Boerne decision.  I told him about
the latest proposals in Congress,  and he wrote back that his article had
actually argued in favor of some such response to Boerne.  (Unfortunately,
his article is only available in German.)  He also reported that in Germany
the practice of setting general legislative conditions or limitations that
apply to a wide range of statutes is relatively common -- they even have a
name for it.  I thought his comments sufficiently interesting and relevant
to the current discussion that I would pass them on.

        Guenter Krings writes:

>It was very interesting to hear that Congress (or rather some of its
>members) is considering to reenact the RFRA and  restrict it to laws
>that come within the realm of federal constitutional powers. In my
>article (on p. 172 , and WRT the commerce power on p. 170), I expressed
>the idea that the Court could have maybe narrowed its ruling to say that
>the RFRA is only void with regard to laws made by states or local
>entities.
>
>I argued that it would probably permissible for Congress to include the
>provisions of the RFRA in all its specific pieces of legislation, so why
>not enact a law that - in a way - supplements all of these specific
>laws? In German legal tradition we call this technique of law-making
>"etwas vor die Klammer ziehen" (= to put something in front of the
>brackets; i.e. referring to mathmatical formulas in which a factor in
>front of the brackets refers to all of the elements within the brackets
>like a*(b+c) = a*b + a*c).
>
>However, I am not sure whether such a limitation of a ruling would be
>possible under US procedural law.

Mark Rahdert
Temple Law School