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21 Cardozo L. Rev. 415 (1999-2000)
The New Attacks on Religious Freedom Legislation, and Why They Are Wrong

handle is hein.journals/cdozo21 and id is 429 raw text is: SYMPOSIUM THE NEW ATTACKS ON RELIGIOUS FREEDOM LEGISLATION, AND WHY THEY ARE WRONG Thomas C. Berg* The end-of-the-century dispute over the proper scope of religious freedom in America is now well into its third stage. First, the United States Supreme Court narrowed constitutional rights of religious exercise in Employment Division v. Smith,1 holding that the Free Exercise Clause gives religious conduct little protection from the effect of a law that is neutral and generally applicable. Then Congress responded with the Religious Freedom Restoration Act of 1993 (RFRA),2 only to watch the Court strike down part of it in City of Boerne v. Flores3 on the ground that it exceeded Congress's legislative power in enforcing the Fourteenth Amendment.4 Finally, the third stage of this dispute involves efforts to secure protection for religious conduct in the wake of Boerne, through several means. Litigants are now focusing on certain passages in the Smith opinion that call for strong constitutional protection of religious conduct when some other constitutional claim is also implicated or when the law in question makes exceptions for other interests.' In addition, however, Congress and state legislatures continue to show interest in protecting religious freedom through statutes covering religious claims across the board. RFRA probably remains valid after Boerne in its * Professor of Law, Cumberland Law School, Samford University. Thanks to Douglas Laycock, Eugene Volokh, and the participants in the Cardozo Law School symposium for helpful comments on prior versions of this Article. 1 494 U.S. 872 (1990). 2 42 U.S.C. §§ 2000bb-1 to 2000bb-4 (1994) (restoring the previous test that substantial burdens on religious exercise, even from generally applicable laws, must be justified by a compelling governmental interest). 3 521 U.S. 507 (1997). 4 See id. (striking down RFRA as applied to burdens imposed by state and local laws). 5 See Employment Div. v. Smith, 494 U.S. 872, 881-82, 884 (1990); see also infra notes 9-10 and accompanying text.

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