Antidisestablishmentarianism: Why RFRA Really Was Unconstitutional

Authors

Jed Rubenfeld, Yale University Law SchoolFollow

Abstract

Two months ago, the Supreme Court struck down the Religious Freedom Restoration Act of 1993 (RFRA), handing down its most important church-state decision, and one of its most important federalism decisions, in fifty years. Through RFRA, Congress had prohibited any state actor from "substantially burden[ing] a person's exercise of religion" unless imposing that burden was the "least restrictive means" of furthering "a compelling governmental interest." RFRA was a response to Employment Division, Department of Human Resources of Oregon v. Smith, in which the Supreme Court abandoned the very same compelling interest test that RFRA mandated. Smith, overturning decades-old precedent, held that a law burdening religious practices is constitutional so long as it is a law of general applicability, not targeting religion or any particular religious practices as such. RFRA, in effect and by design, was enacted to "reverse" Smith.

Recommended Citation

Jed Rubenfeld, Antidisestablishmentarianism: Why RFRA Really Was Unconstitutional, 95 Mich. L. Rev. 2347 (1997).
Available at: https://repository.law.umich.edu/mlr/vol95/iss8/2