RFRA and quasi-equal-protection

[Vance R. Koven]

At 9:37 AM -0700 6/29/01, Volokh, Eugene wrote:
>It seems to me that RFRA does in a sense "privilege[] religious
>'equal protection' claims over secular ones."  If a law
>substantially burdens religious practice, then strict scrutiny must
>be applied, which means that the law may not be underinclusive with
>respect to the compelling interest. [...]
>
>         I have of course long argued, especially in response to Rick
>Duncan, that this "most favored nation status for religious conduct"
>position doesn't apply under the Free Exercise Clause (at least so
>long as the rule doesn't facially or intentionally single out
>religious conduct for special burden).  But it seems to me that it
>must apply under RFRA [...]

Doesn't this play directly into the hands of those who think RFRA is
unconstitutional as against the Federal as well as the state
governments? Under the Boerne "the Constitution means what *we* say
it means, not what Congress says it means" approach, RFRA can't enact
a Constitutional interpretation at odds with current Supreme Court
mood swings. If Smith represents current doctrine on strict scrutiny
vs. rational basis, then Congress cannot repeal Smith by statute. If
a provision that explicitly gives Congress the right to enact
legislation is unenforceable, then a fortiori where there is no
express grant Congress is without power to gainsay any Court
interpretation.

Isn't it funny how little deference the courts show to the
rulemaker's interpretation of its governing authority when it's
*their* ox that's gored?

--
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*Vance R. Koven  Counselor at Law    20 Park Plaza Ste. 633   Boston MA 02116*
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