Academic Legal Writing - Eugene Volokh [101]
[¶ 3] In Smith, however, the Court abandoned the compelling interest test. By a 5-4 vote, (Justice Sandra Day O'Connor concurred on different grounds), the Court held that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Writing for four members of the majority, Justice Antonin Scalia made it clear that no longer can an “individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”
[¶ 4] Members of the media, academics, members of Congress, and religious interest groups greeted the decision with condemnation and despair. A lead editorial in the Los Angeles Times denounced the decision as an exercise of “pure legal adventurism.” Of the sixteen law review articles and notes written on the case, all but one condemned the result. Professors Edward M. Gaffney, Douglas Laycock and Michael W. McConnell described the decision as a “sweeping disaster for religious liberty.” Congressman Stephen J. Solarz’ reaction was even more dramatic: “With the stroke of a pen, the Supreme Court has virtually removed religious freedom from the Bill of Rights.” Kim Yelton, director of government relations of Americans United for Separation of Church and State, concurred with Solarz’ description: “There's really no such thing as free exercise (of religion) anymore ....” Finally, Rabbi David N. Saperstein called the decision “the most dangerous attack on our civil rights in this country since the Dred Scott decision in the 1850s declared that blacks were not fully human beings.”
[¶ 5] Part of the hostility generated by Smith is attributable to the decision's poor craftsmanship. In its reliance on certain precedents20 and its distinguishing of others,21 the decision seems intellectually disingenuous. Indeed, even those who agree with the outcome in Smith recognize that the Court's opinion “exhibits only a shallow understanding of free exercise jurisprudence and its use of precedent borders on fiction.” The opinion is also a classic example of judicial overreaching: the holding goes beyond the facts of the case and the lower court's disposition of the issues involved. In the words, again, of one who supports the outcome, “it appears that the Court framed the free exercise issue in virtually the broadest terms possible in order to allow it to reach its landmark result.”
[¶ 6] The Court's aggressiveness in reaching its result and its manipulation of precedent, although significant in themselves, only added salt to the serious wound apparently inflicted by the outcome of the case.24 The fundamental problem of Smith, to most observers, is that the Court appears to have abandoned its traditional protection of religious liberty. In response to this perceived crisis, a large coalition of academics and religious groups petitioned the Court for a rehearing.
[¶ 7] When that effort failed, members in both the House of Representatives and the Senate introduced a Bill, entitled the Religious Freedom Restoration Act of 1990 (RFRA), designed essentially to reestablish the compelling interest test. The Bill is supported by a large bipartisan group within Congress, and by a diverse coalition of religious groups outside of Congress. Introduced last fall, the Bill initially seemed assured of quick passage. More pressing