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Cato Policy Report, May/June 1997

Is the RFRA Constitutional?

On February 18th the Cato Institute hosted a debate titled "Is the Religious Freedom Restoration Act Constitutional?" Arguing the affirmative was Kevin J. Hasson, president and general counsel of the Becket Fund for Religious Liberty. His opponent was Marci Hamilton, professor of law at Cardozo Law School and counsel for the city of Boerne, Texas, which is challenging the constitutionality of the act. Roger Pilon, director of Cato's Center for Constitutional Studies, introduced the debate. Excerpts from his and the speakers' formal remarks and their rebuttals follow.

Roger Pilon: America was founded to a substantial extent by people seeking religious liberty. It was no accident, therefore, that when we declared ourselves a separate, self-governing people, we put the protection of our diverse religious traditions foremost among our concerns. The First Amendment plainly states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." When governments were limited, religious freedom was a relatively uncomplicated matter. With the growth of government over the 20th century, however, the opportunities for conflict between state and church have grown exponentially.

The dispute before us, City of Boerne, Texas v. Flores, which the Supreme Court will hear tomorrow morning, is a case in point. It arose when the archbishop of San Antonio, P. F. Flores, sought a construction permit from the city of Boerne to tear down a local church and build a new one. That the archbishop could proceed only with government permission tells us that we are in the 20th century. That the permit was denied under local historic preservation laws tells us that we are well into a century that permits change only when it conforms to some massive government plan. When the permit was denied, Archbishop Flores sued, invoking the Religious Freedom Restoration Act, which Congress had passed in 1993. In defense, the city claimed the act was unconstitutional because it violated the separation of powers doctrine.

Here the issues start to get complicated, but it's important to outline them if our discussion is to make sense. RFRA was signed by President Clinton with great fanfare and broad bipartisan support. The act was in response to the 1990 Supreme Court opinion in Employment Division v. Smith, in which the Court abandoned the strict scrutiny it normally invokes in cases dealing with religious freedom and applied a middle level of scrutiny to find that the state of Oregon could deny unemployment benefits to Native Americans who had been fired from their jobs after using illegal peyote as part of their religious rituals. The Court held that there is no special religious exemption from neutral, generally applicable laws that happen to have an "incidental effect" on the free exercise of religion.

The question here is not simply about religious freedom. It is also about federalism under the Fourteenth Amendment, which in section 5 gives Congress "the power to enforce, by appropriate legislation, the provisions" of section 1, including the provision that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." And it is a question, perhaps more vexing, of whether Congress has the power to intrude upon the Court's interpretation of the Constitution by requiring a higher standard of review for religious freedom cases than the Court has used--a separation of powers question that takes us back to the seminal case of Marbury v. Madison.

Marci Hamilton: If upheld, the Religious Freedom Restoration Act will transform our society from one in which churches are expected to be fair-minded members of their respective communities to one in which churches hold the upper hand, whether the issue is zoning, prison regulation, or taxation. RFRA's disdain for the rule of law and for a responsible role for churches is certain to engender less, rather than more, religious tolerance. It is unfortunate that it was drafted in such legalistic terms and therefore is largely inaccessible to the people, who should understand what has hit them.

If you look at the record of the Constitutional Convention, the one word you will see over and over again is "tyranny." The Framers recognized that tyranny is possible when you have great concentrations of power, and they agreed that the way to avoid tyranny was to divide and decentralize power. They did that in the Constitution of the United States.

The three most important structural safeguards in the Constitution are the separation of the powers of the three federal branches; federalism, which separates the powers of the federal government and the states; and the establishment clause, which separates the powers of church and state. RFRA crosses all three boundaries simultaneously.

No one, not even the respondents in this case, would disagree that the Supreme Court has the final word on the meaning of the Constitution. Once the Supreme Court has declared the meaning of the Constitution, that is its meaning. No other branch has the authority to subvert that meaning.

I believe that Marbury v. Madison in 1803 stated the problem with RFRA most elegantly. Chief Justice Marshall said,

Either the Constitution controls any legislative act repugnant to it, or the legislature may alter the Constitution by an ordinary act. Between these alternatives there is no middle ground. The Constitution is either a superior paramount law unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislator shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law. If the latter part be true, then written constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.

Which is to say that if the Constitution does not place meaningful checks on the exercise of authority by the legislature, its authority will be boundless.

To understand RFRA you have to understand its scope. The act applies to every law in the United States, whether it was drafted and enacted by a city, a state, a municipality, or the federal government, and whether or not it is a written law. It also applies whether the law was passed before or after RFRA. In other words, this act intends to be the structural equivalent of the Constitution. No other law in this country has that scope. Congress has never before passed a law that has such scope, and RFRA's scope is the prime indicator that what Congress in fact is trying to do is to displace the judiciary's decision with its own policy determination that a different standard ought to be applied in cases involving religious freedom.

Many people will say, "Why should we hamstring Congress by forcing it to act within the confines of a particular enumerated power, especially when what we are doing, expanding religious liberty, is a good thing?" The answer is twofold. First, the Framers understood what we need to relearn--that holding the government to the enumerated powers is the only way to adequately contain a federal branch that has the means to become unlimitable. Second, the powers of church and state need to be balanced.

As a religious believer, I am uneasy about churches' drafting a statute for Congress and then lobbying for it on the Hill and through the courts. The organized churches have come together with the most dangerous branch of government, Congress, to elevate their power in their communities. That is the very union of power that was most feared by the Framers.

If RFRA is upheld, we will simply install a moving sidewalk between the Court and Congress so that, when the Court issues a constitutional interpretive decision, the losers can more easily reach Congress to overturn that interpretation. We can also expect an onslaught of federal control of state and local lawmaking in every arena. The text of the Fourteenth Amendment says, in part, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The expansive reading of the Fourteenth Amendment suggested by the church and the federal government in this case would eviscerate the liberty that is preserved when local communities have a measure of autonomy from a distant and centralized national power. RFRA threatens to erase local autonomy and to cement the unfortunate expansion of federal power that has occurred over the last half century.

Kevin Hasson: Professor Hamilton and I agree that religious liberty is important. She and I agree on virtually nothing else. The Religious Freedom Restoration Act is constitutional because it gives people in the United States even more liberty. It takes authority from both the federal government and the state governments and gives even more liberty. Giving even more liberty than the Constitution requires is a perfectly respectable thing to do under the Fourteenth Amendment. And thus RFRA is constitutional.

But let me digress for a moment and discuss whether RFRA is a good idea. I think it is. Professor Hamilton and I disagree about that, too. Whether it is a good idea, however, has nothing to do with whether it is constitutional. There are all sorts of bad ideas that are constitutional and all sorts of good ideas that are unconstitutional. This is a good idea that happens to be constitutional.

Let me point to two cases to demonstrate my point. An Orthodox rabbi in Miami Beach recently wanted to hold prayer meetings in his home and was told by the city that he could not do so because it would violate the zoning requirements. He sued and the courts said, "We're sorry. This is a neutral law of general applicability and you may not hold prayer meetings in your home." Then RFRA was passed. The rabbi sued again. The district court again said no, but the court of appeals reversed and stated that RFRA permits such activity.

The second case, which is a suit that the Becket Fund is arguing, involves the Defense Department's denying persons the freedom to preach to a broad coalition of Christians, Jews, and Muslims. Under a neutral law of general applicability, the Defense Department has told those people that they may not preach against President Clinton's veto of the partial birth abortion ban and in favor of Congress's override of it. I do not want to say that without RFRA we would lose because I do not believe that is true, but RFRA is clearly our strongest argument.

Now back to why RFRA is constitutional. The Fourteenth Amendment does three things: guarantees equal protection of the law; prohibits states from depriving people of life, liberty, or property without due process; and prohibits states from denying to citizens the privileges or immunities of U.S. citizenship. It also grants enforcement rights to Congress. And there is a very important reason it did that. The reason is that the people did not trust the Supreme Court to enforce the amendment. The country had just gone through a civil war and the Supreme Court then sitting was virtually the same Court that had handed down Dred Scott. That grant of enforcement power to Congress, specifically because the Court was not trusted, is what is at issue in this particular case.

On the day that the final draft of the Fourteenth Amendment was introduced, Senator Howard, who introduced it, had this to say, and it's lengthy but it deserves to be quoted in full.

Now sir, there is no power given in the Constitution to enforce and to carry out any of these guarantees. [The guarantees he was speaking of explicitly were the first eight amendments to the Constitution.] They stand simply as a Bill of Rights in the Constitution without power on the part of Congress to give them full effect. While at the same time, the states are not restrained from violating the principles embraced in them. Up until that time the Bill of Rights were limitations only on the federal government, not the States, and the Court, not the Congress, had any power to do anything about them. As I have remarked they are not powers granted to Congress and therefore it is necessary, if they are to be effectuated and enforced, as they assuredly ought to be, that additional power should be given to Congress to that end. This is done by the fifth section of this amendment, which declares that the Congress shall have power to enforce by appropriate legislation the provisions of this article.

Here is a direct affirmative delegation of power to Congress to enforce all those guarantees, a power not found in the Constitution. Congress knew precisely what it was doing. It was giving itself the power to do what it did not trust the Court to do: to carry out, enforce, and effectuate all the principles of all those guarantees. One of the specific problems that Congress was worried about, and the debates at the time are replete with references to it, is the religious liberty of people in the South. Southerners had invoked noise regulations "to suppress the religious meetings among the colored people." Planners proposed regulations authorizing only ordained ministers to preach and imposing a 10:00 p.m. curfew on meetings. That sounds a lot like a zoning regulation in Miami Beach to me.

Let me pause for a second to ask if it is troubling that Congress has so much authority. Sure it is. Any time you give Congress authority, it's troubling. Members of Congress tend to do dumb things with it. Nevertheless, the Constitution is what the Constitution is, and section 5 of the Fourteenth Amendment says what it says.

In sum, RFRA restricts the powers of the federal government and state governments and as a result gives people even more liberty. That's why it's constitutional, and that also happens to be why I believe it's a good idea.

Hamilton: I think that you can understand now why I started out by saying that the problem with RFRA is that it lacks respect for the rule of law. Mr. Hasson stood up here and complained about the bureaucrats of Boerne. The bureaucrats of Boerne are duly elected officials who are carrying out the plans the people of Borne have asked for. If RFRA is good law and can be applied to every law that is passed at any level, why is it that the people cannot, through their duly elected officials, set the agendas for their communities? There is less liberty overall when federalism is completely stomped out by the ability of a centralist government to determine what the level of liberty will be in every community. Federalism is at stake in this case. It is at stake because those who have drafted, lobbied for, and are now litigating RFRA firmly believe that elected officials are nothing but bureaucrats. That is simply inaccurate. I'll be the first to talk about the executive branch's being filled with bureaucrats who don't do the right thing, but that's not what we're talking about here. We're talking about duly elected local officials.

Another problem with RFRA was conceded by Mr. Hasson. He stated that the law provides even more liberty than the Constitution requires. That's true, and that's the problem. Section 5 of the Fourteenth Amendment is meant to enforce constitutional guarantees. RFRA does not attempt to enforce constitutional guarantees. It attempts to enlarge them dramatically with respect to every law and every government in the United States for the purpose of imposing Congress's policy views on religious issues on the courts and on the states. RFRA is dramatically different from anything the Court has ever said is appropriate.

Hasson: Even assuming that bureaucrats tend to pursue the will of the people, a very charitable assumption, the will of the people is simply not the end of the matter. We do not live in a pure democracy. The Bill of Rights was designed specifically to prevent the will of the people from accomplishing certain things. The Fourteenth Amendment was passed specifically to prevent the will of the people, especially in the southern states, from accomplishing many things that Congress thought were evil, including trampling on religious liberties. What Professor Hamilton seems to be arguing is that section 5 was a bad idea. Maybe it was a bad idea, but, good idea or bad, it is part of the Constitution.

This article originally appeared in the May/June 1997 edition of Cato Policy Report.