How to Apply the Religious Freedom Restoration Act to Federal Law Without Violating the Constitution

Abstract

The Supreme Court in City of Boerne v. Flores (1997) struck down the Religious Freedom Restoration Act (RFRA) in its applications to state and local governments. The Court, however, let RFRA stand as applied to the federal government. This article considers the problems and possibilities in applying RFRA to federal law. The article characterizes Federal RFRA as an unusual legislative precommitment to a heightened level of protection for religious freedom. This characterization helps to defuse a series of separation-of-powers objections lodged against RFRA in its applications to federal law: that Congress lacked constitutional authority to enact RFRA; that Congress usurped the Court's power to interpret and apply the First Amendment; and that the Act requires courts to make inquiries outside the scope of judicial competence. The article finds greater force in a second objection to RFRA in the federal sphere: that the Act violates the Establishment Clause. While this objection dooms a substantial number of RFRA's possible applications to federal law, the article contends that the Act is not facially invalid and suggests two alternative approaches to judicial construction and application of RFRA that would allow courts to give the Act meaningful effect in the federal sphere.