The Failure of RFRA
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The Failure of RFRA
University of Arkansas at Little Rock Law ReviewVolume 20 Issue 3Article 21998The Failure of RFRAIra c. LupuFollow this and additional works at: https The Failure of RFRAs://lawrepository.ualr.edu/lawreviewỠ’ Part of the Constitutional Law Commons, Legislation Commons, and the Religion Law CommonsRecommended CitationIra c. Lupu, The Failure of RFRA, 20 u. Ark. Little Rock L. rev. 575 (1998).Available at: https://lawrepository.ualr.edU/lawreview/vol20/iss3/2This Arti The Failure of RFRAcle is brought to you for free and open access by Bowen Lav.' Repository: Scholarship & Archives. It has been accepted for inclusion in University ofThe Failure of RFRA
Arkansas at Little Rock Law Review by an authorized editor of Bowen Lav/ Repository- Scholarship & Archives For more information, please contact mmserUniversity of Arkansas at Little Rock Law ReviewVolume 20 Issue 3Article 21998The Failure of RFRAIra c. LupuFollow this and additional works at: https The Failure of RFRAdispassionate analysis of how and why the Act failed. Indeed, careful lawyers committed to a robust version of religious liberty stand to learn a great deal from RFRA’s brief, unhappy life. Efforts are afoot, in both state and federal lawmaking circles, to find alternative mechanisms to achieve RFRA The Failure of RFRA’s goals. These efforts include amendments to the U.S. Constitution, revisions of the federal RFRA to enable it to withstand federal constitutional atThe Failure of RFRA
tack,2 and state legislation designed to achieve RFRA’s purposes within particular states.3 If the proponents of these measures do not understand the University of Arkansas at Little Rock Law ReviewVolume 20 Issue 3Article 21998The Failure of RFRAIra c. LupuFollow this and additional works at: https The Failure of RFRAinadequate. Its proponents concentrated their energies too narrowly and♦ Louis Harkey Mayo Research Professor of Law. The George Washington University Law School. Thanks to Tom Dienes, Mike Selmi, Bob Tuttle, and the participants in the George Washington Law School faculty workshop for helpful comme The Failure of RFRAnts on an earlier version of this essay, and to Julia Morgan for excellent research assistance in its preparation.1.42 Ư.S.C. § 2000bb (1994). The RelThe Failure of RFRA
igious Freedom Restoration Act was designed to overcome the decision of the United States Supreme Court in Employment Division, Department of Human ReUniversity of Arkansas at Little Rock Law ReviewVolume 20 Issue 3Article 21998The Failure of RFRAIra c. LupuFollow this and additional works at: https The Failure of RFRAEE EXERCISE OF RELIGION PROTECTED.(a)IN GENERAL. - Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.(b)EXCEPTION. -Government may substantially burden a pers The Failure of RFRAon’s exercise of religion only if it demonstrates that application of the burden to the person--1is in furtherance of a compelling governmental intereThe Failure of RFRA
st; and-2is the least restrictive means of furthering that compelling governmental interestid. at § 2000bb-l. City of Boeme V. Flores, 117 s. Ct. 2157University of Arkansas at Little Rock Law ReviewVolume 20 Issue 3Article 21998The Failure of RFRAIra c. LupuFollow this and additional works at: https The Failure of RFRAof the Court’s opinion, see Ira c. Lupu, the Congress Was Wrong and the Court Was Right—Reflections on City of Boerne V. Archbishop Flores, 39 Wm. & Mary L. Rev. 789 (forthcoming 1998).2.See, eg., Protecting Religious Freedom after Boerne V. Flores: Hearing Before the Subcomm, on the Constitution of The Failure of RFRA the House Comm, on the Judiciary, (July 14, 1997), available inThe Failure of RFRA
vel RFRA. See Larry B. Stammer, Bill Would Implement State Version of Federal Act, Los ANGELES Times, Oct 11,1997, Metro, at B4. New Jersey is consideUniversity of Arkansas at Little Rock Law ReviewVolume 20 Issue 3Article 21998The Failure of RFRAIra c. LupuFollow this and additional works at: https The Failure of RFRASept. 18, 1997, at A3.575576UALR LAW JOURNAL[Vol. 20shortsightedly on hinging RFRA to the Fourteenth Amendment, section five,4 when danger signs concerning that path were all about. A constitutional sfrategy that diversified the underpinnings of RFRA was available and far preferable to what was used The Failure of RFRA; stools always stand better on three or more legs than on one. Yet the proponents of RFRA ignored the need for a well-balanced approach, and membersThe Failure of RFRA
of Congress did not demonsttate enough interest or insight to compensate for the overly narrow view of the interest groups which supported the Act.SecUniversity of Arkansas at Little Rock Law ReviewVolume 20 Issue 3Article 21998The Failure of RFRAIra c. LupuFollow this and additional works at: https The Failure of RFRAented enactment never occurred. One major reason for the lack of such a conversation about RFRA was the reluctance of states and localities to oppose it, and the apparent indifference of members of Congress to the Act’s consequences for administration of state and local government. Had issue been jo The Failure of RFRAined in a timely and vigorous way about the likely costs and benefits of RFRA, it would never have emerged in the form it took.Because of these failurThe Failure of RFRA
es of planning and process, RFRA became law in a way which created a substantial likelihood of judicial evisceration of its goals. The primary dredginUniversity of Arkansas at Little Rock Law ReviewVolume 20 Issue 3Article 21998The Failure of RFRAIra c. LupuFollow this and additional works at: https The Failure of RFRA. In addition, courts found more subtle devices with which to undercut the Act’s seeming rigors. Nor did regulators or other government policy makers fill the breach; unless directly confronted with a RFRA challenge, these decision makers tended to ignore the Act. As a result, after three and one-ha The Failure of RFRAlf years, RFRA had accomplished little. At the level of policy achievement, RFRA was a disappointment.In what follows, I assess these phenomena. PartThe Failure of RFRA
I analyzes the constitutional deficiencies in the way RFRA took shape, and Part II assesses the patterns of RFRA decisions by various legal actors. InUniversity of Arkansas at Little Rock Law ReviewVolume 20 Issue 3Article 21998The Failure of RFRAIra c. LupuFollow this and additional works at: https The Failure of RFRAcates of such protection might go from here. In particular, I argue that legislative codification of religious liberty, RFRA-style, is ill-advised, and that courts should be permitted a period in which to work through their own, levelheaded “restoration” of religious liberty.4.U.S. CONST, amend. XIV The Failure of RFRA, §5.5.42 u.s.c. § 2000bb-I(a) (1994).University of Arkansas at Little Rock Law ReviewVolume 20 Issue 3Article 21998The Failure of RFRAIra c. LupuFollow this and additional works at: httpsUniversity of Arkansas at Little Rock Law ReviewVolume 20 Issue 3Article 21998The Failure of RFRAIra c. LupuFollow this and additional works at: httpsGọi ngay
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