These include Maine, Massachusetts, Minnesota, Washington, Montana, Kansas, and probably California. The states should use RFRA as a model act and resist political pressures to carve out exemptions or reduce the level of judicial scrutiny from compelling state interest. Fourth, we must urge the Court at the appropriate time to overrule Smith . This gets to the heart of the matter. Once the Smith problem is fixed and strict scrutiny is restored as a constitutional right, there is little or no need for legislation.
Trouble is, only three wanted to do it, and five are needed.
Thus, this is a long-term strategy and must await a retirement or two, or a conversion of one or more members of the majority. 13 Additional alternatives have been offered, which, while they may have some merit, do not enjoy widespread support. For example, some have suggested tying RFRA to Congress's treaty powers to enact legislation to implement the International Covenant on Civil and Political Rights. But by all accounts this may be a political non-starter, particularly on the political right. Others have called for specific, targeted legislation addressed to some of the more problematic areas of government activity-such as zoning, landmarking, and prison administration.