The Religious Freedom Restoration Act Is a Constitutional Expansion of Rights

For almost a half century since Brown v. Board of Education,(1) conservatives have railed against liberal judicial activism.(2) Republican presidential candidates from Richard Nixon to Bob Dole have campaigned against the Court and have excoriated what they perceive as judicial activism. Almost three decades after the end of the Warren Court, at a time when the Supreme Court and all federal courts remain dominated by Republican judges, the attack on liberal judicial activism continues. In July, 1997, the Senate Judiciary Committee held hearings titled Judicial Activism.(3) Thomas Jipping, a prominent critic of the courts, wrote an editorial in August, 1997, expressing [c]oncern about a federal judiciary out of control.(4) The irony is that the real judicial activism of the 1990s is in a direction. The Supreme Court's recent decision in City of Boerne v. Flores(5) is extremely important on many levels, including as a striking example of judicial activism. Ultimately, Flores posed basic questions concerning the relationship between the Court and Congress in interpreting the Constitution, between the power of the federal government and the states in protecting rights, and between a narrow and a broad content for a basic constitutional right. The Court resolved these issues by choosing in favor of its own power and invalidating a statute overwhelmingly passed by Congress. Whether one agrees or disagrees with the result, and however one defines judicial activism, this is it. Moreover, the Court rejected the federal statute, in part, based on federalism concerns and the perceived need to protect states from such federal encroachments.(6) Additionally, the obvious effect of Flores is to reduce protection of free exercise of religion by returning the law to the test articulated in Employment Division v. Smith:(7) A neutral law of general applicability does not violate the Free Exercise Clause.(8) The invalidation of a federal statute on federalism grounds and the substantial narrowing of the scope of constitutional rights are obviously victories. Flores, by any measure, is dramatic judicial activism. This observation, however, does not mean that the Court decided Flores wrongly. Identifying it as activist and conservative is descriptive. Although it is true that critics usually reserve the phrase judicial activism to attack decisions with which they disagree, the reality is that activism and restraint are neither inherently good nor bad. Rather, each case must be analyzed normatively to assess judicial activism's desirability. If nothing else, perhaps Flores will reveal how absurd it is for conservatives to lament liberal activism from a Supreme Court that is controlled by five Justices and that lacks a single progressive Justice in the mold of William Douglas, William Brennan, or Thurgood Marshall. The judicial activism of the 1990s, as Flores powerfully illustrates, is conservative. What makes Flores wrong is not its activism or its conservatism, but instead its failure to accept a basic constitutional principle, most clearly expressed in the Ninth Amendment: Other government institutions, federal and state, may expand the scope of constitutional rights.(9) Congress, by statute, may confer more rights than the Court finds in the Constitution. The Religious Freedom Restoration Act of 1993 (RFRA)(10) is constitutional because in it, Congress, by statute, expanded constitutional rights.(11) This defense of RFRA can be presented as a simple syllogism. Major premise: Congress, acting under Section 5 of the Fourteenth Amendment (Section 5), statutorily may create more constitutional rights than recognized by the Supreme Court, so long as Congress does not dilute or lessen rights. Minor premise: RFRA is a statute, enacted under Section 5, that creates more constitutional rights and neither dilutes nor lessens rights. …