Free Exercise in the Lobbying Nineties

Abstract

For lawyers who specialize in the law of religious liberty, the years from 1990 to 2000 were the "Lobbying Nineties"-a decade of legislative battles over free exercise of religion. With bookends on April 17, 1990 (the date of the Supreme Court's decision in Employment Division, Department of Human Resources of Oregon v. Smith), and September 22, 2000 (the day on which President Clinton signed the Religious Land Use and Institutionalized Persons Act ("RLUIPA") into law), the 1990s saw a dramatic series of federal and state legislative battles to restore some of the legal protection for religious practice that the Supreme Court had taken away. The politics were fascinating, with unexpected alliances creating some of history's strangest political bedfellows. With RLUIPA's passage in the summer of 2000, a long-forgotten calm settled over the sea of church-state advocacy. At least pending the Supreme Court's next foray, there appear to be no new federal legislative battles to fight. Has all been done that could be done? Or are there, perhaps, other possible ways that Congress could act to promote religious freedom? This Article presents a simple analytical framework for thinking about free exercise doctrine, and a brief summary of the Supreme Court's free exercise case law.

Keywords: Constitutional, Constitution, Free Exercise, Supreme Court, religious liberty

JEL Classification: K10