The Religious Freedom Restoration Act and Smith: Dueling Levels of Constitutional Scrutiny

Table of ContentsI. Introduction 1702II. Background on the Levels of Scrutiny Applied in the Free Exercise Context 1705III. Village ofBensenville v. FAA: How Should the RFRA Apply to Indirect Burdens? 1711IV. When Does the RFRA Apply? Employing Tools of Statutory Interpretation 1715A. Plain Meaning-Always Applying the RFRA to Indirect Burdens-Violates the Constitution 17161. Plain Meaning of the RFRA 17162. Always Applying the RFRA to Indirect Burdens Violates the Constitution 1719B. The Opposite of Plain Meaning-Never Applying the RFRA to Indirect Burdens-Is Contrary to Congressional Intent 17221. Searching for Congressional Intent 17222. Never Applying the RFRA to Indirect Burdens Is Contrary to Congressional Intent 1724V. Bensenville's Solution: Using the State Action Doctrine As a Middle Path 1726A. The State Action Approach 1727B. Is State Action an Acceptable Middle Path? 1729VI. Conclusion 1731I. IntroductionIn Cantwell v. Connecticut? the Supreme Court stated:The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws. The constitutional inhibition of legislation on the subject of religion has a double aspect... freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement ofthat protection.2Cantwell enunciated two principles vital to free exercise jurisprudence. First, the Free Exercise Clause of the First Amendment applies equally to federal and state governments.3 Second, the Constitution, through the First Amendment, limits the nature of the religious activity.4 While the freedom to believe is capable of being protected absolutely, the freedom to act is only capable of being protected to the extent that society also remains protected.In order to find the correct balance between religious action and the protection of society, the Free Exercise Clause requires that burdens on religious exercise be sufficiently justified.5 A burden is "justified" when the challenged law meets the level of constitutional scrutiny mandated by the Supreme Court.6 If the law in question is a neutral law of general applicability, the Free Exercise Clause is violated unless the law passes rational basis review, a relatively permissive standard.7 However, if the law in question is not neutral or of general applicability, the Free Exercise Clause is violated unless the law satisfies the compelling interest test, a rather restrictive standard.8Congress, finding that courts should not distinguish between neutral laws of general applicability and laws that are not neutral or generally applicable, enacted the Religious Freedom Restoration Act of 1993 (RFRA).9 Under the RFRA, all regulations-federal, state, and local-that substantially burdened a person's exercise of religion were subjected to the compelling interest test.10 In City ofBoerne v. …