Toward a RFRA That Works
Nicholas Nugent, 61 Vand. L. Rev. 1027 (2008)
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Still, enormous unanswered definitional ambiguities exist with respect to RFRA. For example, how does one interpret a statute that purports to reinstate a “compelling interest” test as embodied in cases that do not actually set forth a compelling interest test? Or, how does one interpret a statute that attempts to overrule a case that itself overruled previous case law by mischaracterizing it and setting up a straw man?
This Note attempts to answer these questions. More precisely, this Note advances the argument that a true compelling interest test is inappropriately extreme for accidental interference cases, that the Court had arrived at a more reasonable intermediate balancing test in the Sherbert line of cases, and that, for all of the linguistic inaccuracies in both that line of cases and RFRA, RFRA codified the intermediate balancing approach of the Sherbert line. This Note further argues that the compelling governmental interest test is so extreme and untenable that it only invites a backlash of the kind seen in Smith. This backlash aims not to lower the constitutional bar for accidental interference to a more reasonable balancing approach, but to deny that the government need demonstrate any particularly strong regulatory interest to justify such burdens. The ironic result is that religious claimants ultimately stand to gain the most protection for their religious liberty by pushing for an interpretation of RFRA that would require a lower standard of protection, not a higher one. Hence, religious interest groups would be wise to steer RFRA’s interpretation in both the federal arena and in the states’ mini-RFRAs, toward the refined, reasonable, and nuanced approach of Sherbert and its progeny. Such an interpretation is not merely advantageous to religious claimants, but also finds ample support in the text of the statute, as this Note will demonstrate.
Part II of this Note details the history of the Court’s free exercise jurisprudence. It shows how the Court came to a workable solution to the problem of accidental interference in the Sherbert line of cases, how and why that line of cases was overruled in Smith, and how Congress responded by enacting RFRA. Part III provides several arguments for an interpretation of RFRA that is more consistent with the methodology actually employed in the Sherbert line, as opposed to a strict scrutiny standard, and examines the Court’s adherence to such an interpretation in O Centra Espirita, its first encounter with RFRA since the statute’s partial demise in Boerne. Finally, Part IV emphasizes the importance of a moderate interpretation of RFRA in securing lasting protection for religious interests.
