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

141 Pages Posted: 12 Jun 2001

See all articles by Gregory P. Magarian

Gregory P. Magarian

Washington University in St. Louis - School of Law

Date Written: March 2001

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.

Suggested Citation

Magarian, Gregory P., How to Apply the Religious Freedom Restoration Act to Federal Law Without Violating the Constitution (March 2001). Michigan Law Review, Vol. 99, 2001. Available at SSRN: https://ssrn.com/abstract=272662 or http://dx.doi.org/10.2139/ssrn.272662

Gregory P. Magarian (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States

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