Constitution Check: Is the Religious Freedom Restoration Act unconstitutional?

[rug]

Lyle Denniston looks at a claim that the Religious Freedom Restoration Act is actually a law that advocates the establishment of religion and is unconstitutional.

Posted 10 hours, 15 minutes ago.
By Lyle Denniston

STATEMENT AT ISSUE:

“The Religious Freedom Restoration Act is unconstitutional….RFRA’s legislative history supports reading it as a takeover of [the Supreme] Court’s power to interpret the Constitution….To say that RFRA is not in fact an attempt to overrule this Court’s constitutional interpretation is to engage in high-level intellectual gymnastics divorced from its text, history, and fundamental common sense. If it were constitutional, RFRA is a formula that would make it possible for Congress to meddle with any constitutional doctrine and decision, and move the Court to the sidelines as political winds shift constitutional standards by simple majority votes.”

– Marci A. Hamilton, a constitutional law professor at the Benjamin Cardozo School of Law, in a brief filed on Tuesday at the Supreme Court on behalf of seven organizations seeking the nullification of the 1993 law, the Religious Freedom Restoration Act. The brief was filed in two pending cases in which the Court is reviewing religious challenges to a part of the federal Affordable Care Act.

WE CHECKED THE CONSTITUTION, AND…

America has always been, from the very Founding, somewhat ambivalent about religion and worship as constitutional matters. While insisting that government and religion must not be joined or even closely allied, it has nurtured a very wide array of religious beliefs and practices, and it has allowed religious views to permeate its popular politics. Periodically, it sees a revival of religion’s influence, and almost always, the result is quite divisive.

The Supreme Court has had its own part in that ambivalent attitude about religion. Even today, it remains unsure how the First Amendment’s Establishment Clause (maintaining the separation of church and state) can coexist comfortably with the same Amendment’s Free Exercise Clause (protecting private choice in matters of faith). How far can the government go to enable the free exercise of religion without becoming, in effect and even in reality, its official partner or sponsor? How much toleration becomes endorsement?

Those questions have been raised over and over again, about the Religious Freedom Restoration Act, since Congress passed that law in 1993 with the explicit aim of overruling a Supreme Court decision three years earlier. In its 1990 decision in Employment Division v. Smith, the Court upheld the power of government at all levels to pass laws that everyone had to obey, even if those laws imposed a burden on the specific religious practice of one sect. Such general laws, the court concluded, did not violate that sect’s constitutional right to freely express its faith.

http://blog.constitutioncenter.org/2014/01/constitution-check-is-the-religious-freedom-restoration-act-unconstitutional/