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Congressional Alternatives in the Wake of City of Boerne V. Flores: The (Limited) Role of Congress in Protecting Religious Freedom from State and Local Infringement

56 Pages Posted: 5 Dec 2006  

Daniel O. Conkle

Indiana University Maurer School of Law

Abstract

This article discusses and analyzes City of Boerne v. Flores, the Supreme Court's 1997 decision invalidating the Religious Freedom Restoration Act of 1993 (RFRA) as applied to state and local governments, and it explores a variety of ways in which Congress might respond to Boerne with legislation that might survive constitutional scrutiny. In particular, the article addresses the following statutory possibilities: more narrowly tailored legislation grounded on Section 5 of the Fourteenth Amendment; RFRA-like legislation grounded on Congress's power over interstate commerce or its power to implement treaties; and spending-power legislation imposing RFRA-like conditions on the receipt of federal funding by state and local governments. Based on an analysis of constitutional doctrine and a consideration of relevant constitutional policies, the article concludes that spending-power legislation might be not only the safest congressional response to Boerne, but also the most sensible and appropriate.

Keywords: Constitutional Law, Congressional Power, Commerce Power, Spending Power, Treaty Power, Fourteenth Amendment Section 5 Power, Free Exercise Clause, Religious Liberty

JEL Classification: K00, K10, K19, K30, K39

Suggested Citation

Conkle, Daniel O., Congressional Alternatives in the Wake of City of Boerne V. Flores: The (Limited) Role of Congress in Protecting Religious Freedom from State and Local Infringement. University of Arkansas at Little Rock Law Journal, Vol. 20, p. 633, 1998. Available at SSRN: https://ssrn.com/abstract=949295

Daniel O. Conkle (Contact Author)

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States
(812) 855-4331 (Phone)
(812) 855-0555 (Fax)

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