Most churches affect interstate commerce to some extent. Although the Court has cut back on Congress's commerce powers, scholars are confident that such an exercise of power could be sustained. The drawback to tying RFRA to Congress's spending and commerce powers is, of course, that it would afford less than comprehensive coverage. Nevertheless, this federal legislative remedy would be an important part of a more comprehensive solution. Third, there is nothing in the Court's opinion to suggest that the states could not choose to bind themselves to heightened protection for religion.
Some states already have greater protection as a matter of state constitutional interpretation.
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.