RFRA and quasi-equal-protection

[Volokh, Eugene]

        I don't think this is the right analysis.  RFRA isn't enacting "a
Constitutional interpretation."  RFRA, as applied to the federal government,
carves out a statutory exception from federal statutes.  Congress has long
been free to create exemptions even when the Court has held that no
exemptions are constitutionally required -- consider the conscientious
objector exemption from the draft, the religious exemption from peyote laws,
the exemption for religious headgear worn by military personnel enacted
after Goldman v. Weinberger, and, I'm sure, many other examples.

        RFRA merely says that Congress has created the same sorts of
exemptions in an across-the-board way.  Nothing (except perhaps the
Establishment Clause, but note that only Justice Stevens took this view in
Boerne) prohibits Congress from doing so, and of course Congress has the
power to do so -- the powers that allowed it to enact various federal
statutes in the first place also allow it to limit the scope of those
statutes.  Likewise, as I've argued at
http://www.law.ucla.edu/faculty/volokh/relfree.htm (Part I.F), there's no
separation of powers issue here.

        Congress hasn't tried to repeal Smith, any more than Title VII tried
to repeal the state action requirement for the Equal Protection Clause.
Congress has enacted a statutory defense to its own statutes, and there's no
constitutional barrier to it doing so.

        Eugene

Vance Koven writes:

> 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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