Anti­disestablishment­arianism: Why RFRA Really Was Unconstitutional

Two months ago, the Supreme Court struck down the Religious Freedom Restoration Act of 1993 (RFRA), handing down its most important church-state decision, and one of its most important federalism decisions, in fifty years. Through RFRA, Congress had prohibited any state actor from “substantially burden[ing] a person’s exercise of religion” unless imposing that burden was the “least restrictive means” of furthering “a compelling governmental interest.” RFRA was a response to Employment Division, Department of Human Resources of Oregon v. Smith, in which the Supreme Court abandoned the very same compelling interest test that RFRA mandated. Smith, overturning decades-old precedent, held that a law burdening religious practices is constitutional so long as it is a law of general applicability, not targeting religion or any particular religious practices as such. RFRA, in effect and by design, was enacted to “reverse” Smith.