Close Shave for RFRA . . . until next time?

[Truthserum]

I reported to the list that Judge Raymond Randolph expressed grave doubts
about the constitutionality of the remainder of RFRA in an oral argument
back in early February, and that he had, in fact, chastised opposing counsel
(representing the USA) for failing to argue that RFRA was entirely
unconstitutional after Boerne, in light of United States v. Dickerson.  I
was disturbed, following the argument, by Judge Randolph's misunderstanding
of the controlling authorities.  He contended, for example, during the
argument, and even after explanation to the contrary, that the Court could
not be the judge of sincerity of belief, but only of validity of belief.  He
repeated the point at least twice the courts should not be put in the
position of judging sincerity of belief.  In an opinion issued today, the
D.C. Circuit discussed, but did not decide, the question of RFRA's continued
vitality:

"An initial question in light of City of Boerne is whether the remainder of
RFRA--the portion applicable to the federal government (and not enacted
pursuant to the s 5 of the Fourteenth Amendment)--survives the Court's
decision. If severance of the invalid part of a statute results in
legislation that it is evident Congress would not have enacted, then the
entire statute should be considered invalid. See Alaska Airlines, Inc. v.
Brock, 480 U.S. 678, 684-86 (1987); United States v. Raines, 362 U.S. 17, 23
(1960). We mentioned this issue at oral argument, but the government failed
to argue the point in its brief. And so we will leave to another day the
question whether RFRA is severable, as the Eighth and Tenth Circuits
believe. See Kikumura v. Hurley, 242 F.3d 950, 959 (10th Cir. 2001); In re
Young, 141 F.3d 854, 858-59 (8th Cir. 1998)."  (Emphasis added).
One question that occurs to me in reading this decision is whether the day
for which Judge Randolph looks with a gleeful sense of anticipation will
ever come?  If the sole reason for having not decided the question was that
the Government had not briefed it, how will this ever change?  The Clinton
administration's DOJ considered the federal portion of RFRA valid after
Boerne and continued to enforce and endorse it.  Is it ponderable that the
Bush administration under General Ashcroft will take the position that RFRA
is invalid?  If not, in what circumstance will the DC Circuit ever be faced
with the unavoidable question?

Here, the court avoided decision on that point.  It did so, however, by
taking a more insidious position with respect to the construction of RFRA.
Allow me to explain:

In this case, the sale of t-shirts bearing religious messages was motivated
by religious belief.  Both sides took the position, with respect to the
meaning and application of RFRA, that it provided protection both to conduct
mandated by religious beliefs and to conduct motivated by religious beliefs.
The Government simply contended with respect to this point that we had not
shown that the sale of religious message t-shirts was religiously motivated.
But the DC Circuit, in the opinion by Judge Randolph, concluded that it was
an incorrect construction of RFRA to hold that it applied to conduct merely
motivated by religion:

"We acknowledge that the Seventh Circuit, in a pre-Boerne state prison case
arising under RFRA, listed among the tests for determining whether there is
a substantial burden on the exercise of religion the question whether the
governmental restriction forced "adherents of a religion to refrain from
religiously motivated conduct," Mack v. O'Leary, 80 F.3d 1175, 1178 (7th
Cir. 1996) (citing Brown-El v. Harris, 26 F.3d 68, 70 (8th Cir. 1994)).Mack,
80 F.3d at 1179. We are not applying that standard for several reasons.  . .
.  [O]ur opinion in Branch Ministries relied on a narrower test. 211 F.3d at
142. To our court, "substantial burden" in RFRA is what the Supreme Court
had in mind in its pre-Smith opinion in Jimmy Swaggart Ministries v. Board
of Equalization, 493 U.S. 378, 384-85 (1990): the proper free exercise
inquiry was whether "the government has placed a substantial burden on the
observation of a central religious belief or practice and, if so, whether a
compelling governmental interest justifies the burden." The idea that a
restriction on religiously motivated conduct requires a compelling
governmental interest is inconsistent with the formulation just quoted. One
can conceive of many activities that are not central or even important to a
religion, but nevertheless might be religiously motivated. In fact it is
hard to think of any conduct that could not potentially qualify as
religiously motivated by someone's lights. To make religious motivation the
critical focus is, in our view, to read out of RFRA the condition that only
substantial burdens on the exercise of religion trigger the compelling
interest requirement. Despite the language we have quoted from the Mack
opinion, see supra note 2, we do not think this is what the Seventh Circuit
intended. Later in its opinion, the court of appeals indicated that under
its test courts must "separate center from periphery in religious
observances," that only practices that are "important" (if not central) to
the religion qualify, and that the "proper and feasible question for the
court is simply whether the practices in question are important to the
votaries of the religion...." 80 F.3d at 1179-80."

This issue was decided by the Court without briefing on either side because
the point was not in dispute between the parties.  Moreover, as I take Judge
Randolph, his approach confines the operation of RFRA to circumstances
already protected within the crabbed confines of the post-Smith free
exercise clause.

Jim "The LEAST Dangerous Branch?  Whoever Said That Was Sure Out on a Limb"
Henderson
Senior Counsel
ACLJ
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/religionlaw/attachments/20010626/8dd0c63f/attachment.htm