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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
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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