The Free Exercise of Religion After the Fall: The Case for Intermediate Scrutiny

I. INTRODUCTION In City of Boerne v. Flores(1) the Supreme Court struck down the Religious Freedom Restoration Act of 1993(2) (RFRA or the Act), at least insofar as the Act is applied against state and local governments.(3) For the moment, at least, free exercise cases again are governed largely by the regime of Employment Division v. Smith,(4) under which the Free Exercise Clause is not deemed violated by laws of general applicability that happen to place substantial burdens on religion. Several Justices in Flores, however, again called for the Court to reconsider the principles of Smith.(5) Should the Court or Congress take up this challenge? Consider three options: (1) After Flores, matters should be left to rest. The law (at least with regard to state and local governments) has now reverted to the rule of Smith. Smith should be accepted as wisely decided, and its principle left to govern future conflicts. (2) After Flores, Congress should try again. Smith, an unwise decision, should be fought with all the resourcefulness that Congress can muster. Congress should pass a new law, Son of RFRA. Using a combination of Congress's power to attach conditions on the receipt of federal largess, Congress's power to regulate interstate commerce, and Congress's enforcement power under Section 5 of the Fourteenth Amendment, and bolstered by a more exhaustive legislative record than that which supported the original enactment of RFRA, a new federal statute should be passed that reaches most, if not all, of the activities of state and local governments.(6) (3) Whatever Congress may attempt, the Supreme Court should itself reconsider the Smith rule. Rather than approach the issue posed by Smith as an all-or-nothing dilemma, however, in which the choice is either the strict scrutiny test or rational basis review, the Court should adopt the intermediate scrutiny standard. This Essay explores the third option. II. THE CASE FOR INTERMEDIATE SCRUTINY The problem posed by Employment Division v. Smith and RFRA, put simply, is this: What should the proper response be to challenges brought against neutral laws of general applicability, broad proscriptions that were not enacted with religion in mind and that do not mention or appear to concern religion, but that nevertheless happen to place substantial burdens on an individual's religious exercise? Suppose a local government passes a zoning law declaring that no more than four unrelated persons may reside in a residential dwelling. Five Buddhist monks, unrelated by blood, inhabit a commodious home in a residential neighborhood, where they live a contemplative life of physical labor and meditation, comprising a small wat, or monastery. One day, zoning officials tell the five monks that in light of the ordinance, one of them must leave. A minimum of five monks, however, is necessary to perform most sacred Buddhist rituals, and the departure of one monk will burden substantially their free exercise of religion. Must the monks buckle to the zoning law, or should they have some legally enforceable right to an accommodation of their religious practices? If some legally enforceable right to accommodation should exist, then what should its contours be? Congress enacted RFRA in response to the Supreme Court's decision in Smith, which involved a Free Exercise Clause claim brought by members of the Native American Church who were denied unemployment benefits after losing their jobs because they had ingested peyote in small amounts as part of a sacramental ritual.(7) They challenged an Oregon criminal statute forbidding the use of peyote, claiming what was in substance a constitutional right to a religious exemption from an otherwise applicable criminal law. …