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56 Montana Law Review 39 (1995)


This article addresses the constitutionality and the constitutional significance of the Religious Freedom Restoration Act of 1993 (RFRA), through which Congress, relying on Section 5 of the 14th Amendment, attempted to repudiate the Supreme Court's restrictive interpretation of the Free Exercise Clause, as announced in Employment Division v. Smith, and to adopt in its place a more generous regime of religious freedom. The article advances two major propositions. First, it contends that despite the Act's noble purpose, RFRA circumvents the process of constitutional amendment, frustrates the Supreme Court's role as the primary interpreter of the Constitution, and improperly intrudes on federalistic values. As a result, the Act exceeds the power of Congress under Section 5, at least insofar as the Act applies to state and local governmental action. Second, the article suggests that even though the Act is unconstitutional, it nonetheless is constitutionally significant in the sense that it should be relevant to the Supreme Court's own interpretation of the Free Exercise Clause. Elaborating a theory of constitutional evolution, the article claims that RFRA reflects contemporary societal values that should properly inform the meaning of the Free Exercise Clause. On this view, the Act - along with more traditional sources of constitutional meaning - could properly be used by the Supreme Court as support for the judicial adoption of a more generous interpretation of the Free Exercise Clause.