The Wrong Vampire

Abstract

In Roman Polanski's horror-movie spoof, The Fearless Vampire Killers, a woman finds a vampire in her bedroom preparing to drink her blood. Being a well-educated Victorian lady, she grabs a crucifix and holds it up, expecting to repel the unholy assault. However, to her surprise, the vampire smiles happily and then says, in a stage-Yiddish accent, "Oy, have you got the wrong vampire!"

This scene offers a parable of the difficulties of dialogue about religion between groups. A secular version of the same lesson is contained in an immortal dialogue between George Burns and Gracie Allen. "Gracie," says George, "I'm sorry to hear about your missing brother." Gracie replies, "You know, George, I think they ought to open the prisons. It would be good for prosperity." "Gracie," George says with his eternal patience, "that's the wrong answer." "No, it's not," Gracie replies. "You just asked the wrong question."

These parables apply to the ongoing controversy about Congress's passage of the Religious Freedom Restoration Act of 1993 ("RFRA") and the United States Supreme Court's invalidation of the Act (at least as applied to state law) in City of Boerne v. Flores. Boerne has been the subject of much criticism, a great deal of it merited. In Boerne, the Court reasoned that the RFRA must be voided--at least against the states--because, as an application of Congress's power to enforce civil rights under Section 5 of the Fourteenth Amendment, it violates a Court-mandated requirement of "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Whatever the merits of this view of Section 5, the opinion is indeed, as Dean Aviam Soifer has argued elsewhere, a poor piece of judicial craftsmanship, so broad and oracular that it has allowed lower court judges to take a meat-axe to the congressional power under Section 5. Thus, for example, Judge Boyle of the United States District Court for the Eastern District of North Carolina has used Boerne as authority to invalidate the express congressional abrogation of state Eleventh Amendment immunity set out in the Americans with Disabilities Act ("ADA"). In language that suggests that the entire Act should be held unconstitutional, Judge Boyle wrote that Congress had no power to enact legislation protecting the disabled because the Supreme Court had not found them to be a "discrete and insular minority."

Keywords: RFRA, Religious Freedom Restoration Act, Supreme Court, legislation, City of Boerne v. Flores, Fourteenth Amendment, congressional power, Eleventh Amendment, ADA, Americans with Disabilities Act, religious minorities, Shaw v. Reno, Voting Rights Act of 1965, United States v. Lopez

JEL Classification: K19, K39, K49