In 1993 Congress enacted the Religious Freedom Restoration Act (“RFRA”), which provided that government, including the United States and the states, “shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability” except where the government can demonstrate that the burden furthers “a compelling governmental interest” and is “the least restrictive means of furthering that interest.”
Unfortunately, whatever consistency RFRA might bring to the substance of church-state relations comes at the expense of clarity in federal-state relations. This is unfortunate because the First Amendment does not address church-state relations; it concerns church-federal relations. Whatever else RFRA is, it is not “consistent with the intent of the Founders,” at least with respect to Congress's power over religious freedom in the states. Congress enacted RFRA in the teeth of the First Amendment, which begins “Congress shall make no law.”
This article concludes that the Religious Freedom Restoration Act is unconstitutional, violating the very provision it purports to enforce. The author proposes a limited corrective, a modest change in course, for the distance Congress and the Court have traveled from the First Amendment, and suggests how the Court might rectify its section 5 views without entirely reversing its questionable tack on incorporation of the First Amendment.
48 Vand. L. Rev. 1539 (1995).
Bybee, Jay S., "Taking Liberties with the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act" (1995). Scholarly Works. 351.