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When the Supreme Court eviscerated the protection of the Free Exercise Clause in Employment Division v. Smith, religious groups and individuals dismayed by the decision chose to pursue statutory relief rather than a constitutional amendment. Now that the Supreme Court has decided in City of Boerne v. Flores that the resulting statute, the Religious Freedom Restoration Act (RFRA or the "Act"), cannot be justified as a congressional exercise of power under the Fourteenth Amendment, many who care deeply about religious liberty may turn to the amendment process as an alternative. Although disappointed by the Flores decision, I believe it is premature to seek a constitutional amendment that would explicitly protect religious conduct from the operation of neutral, valid laws. The Supreme Court has not ruled out effective statutory relief. Until it does so, that course is preferable to amendment.

In this essay, I do not address whether the Court was justified in its conclusion about Congress's power under the Fourteenth Amendment. Nor do I analyze the merits of other constitutional arguments against RFRA, which I have previously urged are unconvincing. This essay explores the implications of what has been said and not said by the Court, with an eye to what opponents of Smith should now do.


Constitutional Law | Fourteenth Amendment | Law