I reside in Montclair, and I hold the position of Professor of Law at the New York University School of Law. I teach classes on Constitutional Law and Religious Liberty. My goal this morning is to explain our reservations about that test, and to propose a better alternative. Let me begin by emphasizing some points on which I think we can all agree. Religious freedom is a value of the highest order.
Public officials are sometimes insensitive or even hostile to the needs of religious persons.
When that happens, we should want courts to step in and protect religious freedom. It is desirable for legislatures to facilitate that kind of action. Unfortunately, RFRA went too far. RFRA's compelling state interest test went far beyond protecting religiously-motivated people from hostility or insensitivity. Taken seriously, it would have allowed religiously-motivated people to pick and choose from among otherwise valid laws.