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20 University of Arkansas at Little Rock Law Journal 633 (1998)


This article discusses and analyzes City of Boerne v. Flores, the Supreme Court's 1997 decision invalidating the Religious Freedom Restoration Act of 1993 (RFRA) as applied to state and local governments, and it explores a variety of ways in which Congress might respond to Boerne with legislation that might survive constitutional scrutiny. In particular, the article addresses the following statutory possibilities: more narrowly tailored legislation grounded on Section 5 of the Fourteenth Amendment; RFRA-like legislation grounded on Congress's power over interstate commerce or its power to implement treaties; and spending-power legislation imposing RFRA-like conditions on the receipt of federal funding by state and local governments. Based on an analysis of constitutional doctrine and a consideration of relevant constitutional policies, the article concludes that spending-power legislation might be not only the safest congressional response to Boerne, but also the most sensible and appropriate.