Academic Legal Writing - Eugene Volokh [192]
160 All of the prisoners' cases, for instance, involved outright prohibitions of the practices sought to be followed. Although some non-prisoner cases involved religious practices that had been criminally proscribed, these were certainly the exception. Although it is difficult to compare the “fundamentalness” of civil liberties, it seems fair to say that even those cases that did involve criminal prohibitions did not involve the deprivation of basic personal liberties to the degree evident in the prisoners' cases.
175 To cite only two examples: the National Council of Churches represents 32 national religious bodies that have an aggregate constituency of 40,000,000. The National Association of Evangelicals is an association of 50,000 churches from 78 denominations that serves a constituency of 15,000,000.
177 In enacting this bill, Congress would be acting under Section 5 of the 14th Amendment, which provides that “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” In Cantwell v. Connecticut, 310 U.S. 296 (1940), the Supreme Court incorporated the Free Exercise Clause into the Fourteenth Amendment, and thus made it subject to the legislative protection allowed under Section 5 of that amendment. In Katzenbach v. Morgan, 384 U.S. 641, (1966), the Court held that this section gives congress “the same broad powers expressed in the Necessary and Proper Clause.” It is this case that probably would be relied upon to uphold the legislation.
Debate exists, however, over whether Katzenbach would be applied to validate this legislation, which essentially works to overturn a Supreme Court decision. Professor Laurence H. Tribe believes that the bill is too confrontational with respect to the Supreme Court's authority, and could run into trouble because of it. Constitutional Law Conference, 59 U.S.L.W. 2272, 2279 (1990) (remarks of Laurence H. Tribe). Indeed, one could argue that it violates the principle of Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803), that “[i]t is, emphatically, the province and duty of the judicial department, to say what the law is.” Espousing a contrary view, Professor Douglas Laycock submitted a letter to the Chair of the Subcommittee on Civil and Constitutional Rights, in which he stated that it was his “judgment that Congress has power to enact such a law under section 5 of the fourteenth amendment.” The complexities of this debate, as well as its likely outcome, though fascinating, are beyond the scope of this Note. They are also, in a sense, extraneous, as this Note argues that the Bill—constitutional or not—is unnecessary and unwise.
181 In his statement in support of the RFRA, Reverend [Dean M. Kelley of the National Council of Churches] recognized that “[p]assage of the Religious Freedom Restoration Act does not guarantee how any of those cases would come out.” But, he asserted, “[t]hat is not the point. The Act would guarantee only that the free exercise claimants would have their ‘day in court.” What Reverend Kelley, and other supporters of the RFRA present at the hearing, failed to recognize is that for the free exercise claimant, a day in court almost always ends in defeat.
183 Senator Biden claimed that the RFRA is concerned with religious freedom, not with allowing Native Americans to use peyote in religious ceremonies. What he fails to recognize is that for members of the Native American Church, religious freedom revolves around the ability to ingest their sacrament, peyote. To suggest that the RFRA protects religious freedom but allows peyote to be prohibited is thus, at least to a member of the Native American Church, a blatant contradiction.
185 There is, however, another possibility. If legislatures enact statutes with an eye toward how that statute will be interpreted by