Academic Legal Writing - Eugene Volokh [117]
[¶ 56] Support for the RFRA within Congress is strong—there are currently 193 cosponsors in the House of Representatives—and spans the political spectrum. Equally strong and diverse are the supporters outside of Congress. The Coalition for the Free Exercise of Religion, formed explicitly to support the Bill, harbors more than thirty-five organizations representing a wide array of religious and political viewpoints. These organizations, in turn, represent extremely large constituencies.175 Action on the Bill has been slow-there have been only two hearings thus far. From the amount and strength of support already behind the Bill, however, it appears to have an excellent chance of being enacted. If enacted, there will likely be a challenge as to whether the Bill is constitutional, but given Supreme Court precedent, it appears it would be able to withstand such a challenge.177
When the article was published in 1992, it seemed likely that RFRA would be enacted, and would be held to be within Congress's constitutional powers. RFRA was indeed enacted in 1993, but in 1997 it was struck down as unconstitutional when applied to the states: The Court concluded that Congress lacked the enumerated power to bind states this way. RFRA remains the law with regard to the federal government, since Congress does have the power to limit the scope of its own laws and of federal government actions.
But the author rightly recognized that the question of RFRA's constitutionality was tangential to his article, and resisted the temptation to add many more pages discussing this issue. Any such discussion would have required the author to learn a good deal of constitutional doctrine that was unrelated to his newly gained Free Exercise Clause expertise. The discussion would have substantially lengthened an already fairly long article. And the discussion would have distracted readers from the core value added by the article—value unrelated to whether a legislative response to Smith was constitutional.
So the author (1) said that RFRA would probably be constitutional, which was indeed the conventional wisdom among scholars at the time, and a reasonable prediction, even if one that ultimately proved to be mistaken. He (2) wrote a footnote that briefly supported his prediction, for the benefit of readers who wanted to know why he was saying what he was saying, and briefly quoted the arguments in both directions. And then he (3) clearly said that this is beyond the scope of the article, and explained why this is so (because “this Note argues that the Bill—constitutional or not—is unnecessary and unwise”). All this saved him a lot of research and writing, and readers a lot of unnecessary reading.
[¶ 57] The reaction of disappointment and outrage to the Smith decision is well expressed by the movement to enact the RFRA. It is a reaction that is understandable and justifiable, given the Court's handling of the case and its symbolic evisceration of the Free Exercise Clause. Passage of the RFRA, however, would be little more than a symbolic victory for religious liberty. In actuality, it would be ineffectual and perhaps even detrimental to the protection of free exercise rights.
[¶ 58] As currently written, the bill mimics the Supreme Court's pre-Smith formulation of the compelling interest test. The previous sections of this Note demonstrated the inability of this test, as applied by the Supreme Court and the courts of appeals, to protect the free exercise claimant. There is nothing to suggest that courts would become more protective under a reestablished compelling interest test.181 Indeed, as far as the Native American Church is concerned, it does not appear that passage of the RFRA would help in the least. As Senator Biden explained when introducing the RFRA in the Senate:
[¶ 59] [A]s I see it, Oregon could still keep native Americans from using peyote during religious ceremonies. In my view, Oregon has a significant interest in preventing the physical harm caused