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The Constitutional Flaws in the New Illinois Religious Freedom Restoration Act: Why RFRA's Don't Work

46 Pages Posted: 16 Nov 2007  

Mary Jean Dolan

affiliation not provided to SSRN

Abstract

This Article analyzes the Illinois Religious Freedom Restoration Act, one of a number of state RFRAs that codify the strict scrutiny standard of review for all religious freedom claims. State RFRAs were enacted after the federal RFRA was held unconstitutional as applied to the states in Boerne v. Flores. All RFRAs are a legislative rejection of the Free Exercise standard set forth in Employment Division, Department of Human Resources v. Smith, where the Supreme Court held that there is no violation where the burden on religiously-motivated conduct is an incidental effect of a generally applicable, neutral law. This Article asserts that the Illinois RFRA violates the Illinois Constitution's separation of powers clause and its ban on religious preferences. First, the Illinois Legislature has unduly interfered with the core judicial function of defining constitutional rights. Because the statutory cause of action is identical to the constitutional one, the Illinois RFRA's standard of review supplants, rather than supplements, the constitutional standard of review, effectively preventing Illinois courts from following, or modifying, Smith. Second, the statute violates a core nonestablishment principle. Laws making exceptions solely for religious conduct must be lifting a specific burden placed on that religious conduct; otherwise, protection of religious freedoms strays into preference. Finally, the establishment problem and the separation of powers issue coalesce in the Illinois RFRA. Because judges consider the constitutional ban on religious preferences when deciding between free exercise rights and general laws, changing the standard of review by statute disturbs judicial balancing of the two religion clauses.

Keywords: RFRA, Illinois Constitution, Religious Freedom Restoration Act, separation of powers, religious preference, states

Suggested Citation

Dolan, Mary Jean, The Constitutional Flaws in the New Illinois Religious Freedom Restoration Act: Why RFRA's Don't Work. Loyola University Chicago Law Journal, Vol. 31, No. 2, 2000. Available at SSRN: https://ssrn.com/abstract=1030055

Mary Jean Dolan (Contact Author)

affiliation not provided to SSRN

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