THE RELIGIOUS FREEDOM RESTORATION ACT - PUSHING THE LIMITS OF LEGISLATIVE POWER

This Article explores the potential practical and constitutional barriers to the success of the Religious Freedom Restoration Act (RFRA). The author suggests that the increasing secularization of contemporary legal culture is fundamentally incompatible with the aspirations embodied in RFRA and may impede its implementation-particularly when invoked to protect nonmainstream religious practices. He also reviews pre-Smith case law and the text of RFRA and argues that the inherently manipulable language of the Act seeks to ''restore'' a doctrine that did not exist in the first place, leaving substantial room for judges to interpret the statute restrictively. The author raises two possible constitutional problems with RFRA. By protecting only the free exercise of religion, RFRA may violate the Establishment Clause, either on its face or as applied to a situation in which conduct is protected when motivated by religious belief but not when motivated by secular concerns. The Act also raises the constitutional question of the limits of Congress's power under Section Five of the Fourteenth Amendment; it is questionable whether Congress can override the Supreme Court on the content of a basic constitutional right such as religious liberty. Finally, the author examines the implications of RFRA for further development in the area of religious freedom. Specifically, he argues that RFRA may have unforseen effects on the development of Establishment Clause jurisprudence and the unintended consequence of discouraging the protection of religious liberty through alternative legal channels such as state law or the repudiation of existing constitutional doctrine.