House of Representatives Committee on the Judiciary
Subcommittee on the Constitution

Subcommittee Hearing on "Protecting Religious Freedom after Boerne v. Flores"

Monday, July 14, 1997
2141 Rayburn House Office Building
10:00 a.m.

Testimony of Douglas Laycock
University of Texas Law School

Thank you for the opportunity to testify this morning on possible Congressional responses to City of Boerne v. Flores.

I have taught and written about the law of religious liberty for twenty years, and I have taught upper level courses in Constitutional Law for much of that time. I hold the Alice McKean Young Regents Chair in Law at The University of Texas at Austin, but The University of course takes no position on any issue before the Committee. This statement is submitted in my personal capacity as a scholar.

I have published many articles on religious liberty and other constitutional issues, including several on the Religious Freedom Restoration Act. I was appellate counsel for the churches in Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), the last successful free exercise claim in the Supreme Court, and in City of Boerne v. Flores, 65 U.S.L.W. 4612 (1997), unsuccessfully defending RFRA's validity as applied to state and local government. I also represent the church in In re Young, 82 F.3d 1407 (8th Cir. 1996), in which a trustee in bankruptcy is belatedly seeking to challenge the validity of RFRA as applied to federal law. Young was vacated and remanded for reconsideration in light of Boerne. 65 U.S.L.W. 3850 (1997).

I. The Shrinking of Congressional Power

City of Boerne v. Flores holds that the Religious Freedom Restoration Act is unconstitutional as applied to state and local governments. The decision is based on newly announced limits to Congressional power to enforce the Fourteenth Amendment. The decision does not affect RFRA's application to federal law, which is based on Article I powers and in no way depends on the Fourteenth Amendment. I am informed that the Administration shares my view that federal applications of RFRA are unaffected.

When the Supreme Court announces a limit on the powers of Congress or of the states, it is central to our system of government that the Court's decision is entitled to obedience. The Court itself is entitled to respect, and I do not doubt that the Justices believe they have delivered the best possible interpretation of the Constitution. But respect does not mean immunity from criticism, and the Boerne opinion has serious problems. I briefly note those problems here, because they complicate the task of assessing what Congressional power remains.

I confidently testified in earlier hearings that Congress had power to enact RFRA. Either I badly misunderstood the law, or the Court has changed the law. I take some comfort from the fact that six appellate courts considered the constitutionality of RFRA prior to the Supreme Court's decision in Boerne, and all six upheld the Act. Five of these decisions upheld RFRA as applied to state or local law. Four of these decisions came from federal courts of appeals, and each of these was written by a well-respected conservative judge appointed by Ronald Reagan -- Patrick Higginbotham, Richard Posner, John Noonan, and James Buckley. I think that Boerne has dramatically changed the law, but if not, I am not the only one who was confused.

Boerne significantly limits Congress's independent power to protect the civil liberties of the American people. With respect to the states, that power is expressly granted by the Enforcement Clauses of the Thirteenth, Fourteenth, and Fifteenth Amendments. That power is no constitutional anomaly; it is as central to our system of government as the Supreme Court's power to invalidate statutes. Governmental power in our system is separated and divided so that each branch has the power and the duty to protect liberty. The Supreme Court has announced a different vision, and Congress must obey, but it need not be persuaded.

The choice between these competing visions of separation of powers will continue to be litigated, because the Boerne opinion announces a vague standard of uncertain scope, and because plausible readings of that standard call in question the validity of many other Acts of Congress. The Court reaffirms that Congressional power to enforce the Fourteenth Amendment includes power to enforce rights incorporated into that Amendment from elsewhere in the Constitution, 65 U.S.L.W. at 4615, and it reaffirms that Congress may "prohibit[] conduct which is not itself unconstitutional." Id. at 4614. But Congress may prohibit such conduct only as a means to "deter[] or remed[y] constitutional violations" as defined by the Court, id., and "there must be a congruence and proportionality between the injury to be prevented or remedied and the means adapted to that end." Id. at 4615. "[T]he line is not easy to discern, and Congress must have wide latitude in determining where it lies." Id. But here, the Court determined that "RFRA is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior." Id. at 4618.

This standard seems to require an empirical judgment: Congressional enforcement legislation is valid if the number of violations of the Constitution as interpreted by the Court is sufficiently large in proportion to the number of violations of the statute. The Court plainly believed that this proportion is small in the case of RFRA, and that it was larger in the case of other enforcement legislation previously upheld. But the Court had no data on any of these proportions, and it made its guesses about the number of free exercise violations without addressing a significant disagreement about what would count as a violation. The facts relevant to this proportion did not get much attention in the briefing, because no one had reason to anticipate that such facts would be dispositive. In any event, facts about the relative magnitude of societal problems should be legislative facts, not judicial ones.

The standard of "congruence and proportionality" is inherently vague, and the litigation process is probably incapable of producing good data on the relevant proportions. Under this standard, it is little more than guesswork to decide which enforcement legislation is valid and which invalid. With respect to future legislation, Congress would be well advised to compile a detailed factual record of constitutional violations as the Court defines them. With respect to past enforcement legislation, we may expect constitutional challenges to the Voting Rights Amendments of 1982, to the Civil Rights Acts of 1964 and 1991 as they apply to state and local employment, to the Pregnancy Discrimination Act as it applies to state and local government, and generally to all other enforcement legislation that has not already been upheld by the Supreme Court. I have no better data than the Court, but reading in the reported cases suggests that for many of these statutes, the proportion of constitutional violations to statutory violations is far smaller than for RFRA. The Court avoided this difficulty by simply not discussing these statutes; it focused instead on the Voting Rights Act of 1965, which is unique among modern civil rights legislation in the magnitude of the constitutional problem to which it responded.

Of course Boerne is not the only recent decision restricting Congressional power, and it is not the only recent decision overruling or distinguishing away past precedent. Constitutional law is changing, and what Congress has power to do based on past precedent it may not have power to do after the Court's next decision. My earlier testimony that RFRA would be valid demonstrates that I have little power to predict how far the Court will cut back. What I can do is outline Congressional responses that are clearly constitutional under existing precedent.

I would also note that the coalition that came together to support RFRA, both in and out of Congress, would not agree on the appropriate scope of Congressional power in other areas of regulation. Some parts of the coalition would undoubtedly prefer to see Congress less active in some areas of regulation. But I think that all parts of this coalition agree that Congress should not lose its power, and Congress should not abandon the effort, to protect basic human liberties that are explicitly guaranteed in the text of the Constitution. That is the wrong place to cut back on Congressional power.

II. The Shrinking of Religious Liberty

Religious liberty is far less secure today, under the rule of Employment Division v. Smith, 494 U.S. 872 (1990), than it appeared to be a month ago under RFRA. But it is not obvious just how much protection has been removed. The meaning of Smith is disputed, and under Boerne, that dispute is relevant to the scope of Congressional power.

In 1990, in the immediate wake of Smith, I noted deep ambiguities in the Smith opinion:

Smith announces a general rule that the Free Exercise Clause provides no substantive protection for religious conduct. It also notes enough exceptions and limitations to swallow most of its new rule. Everything seems to depend on judicial willingness to enforce the exceptions and police the neutrality requirement.

Hearings on RFRA were held in 1991 and 1992. At that time, the few lower court decisions under Smith were giving it the worst possible interpretation. Neither the exceptions nor the neutrality requirement appeared to have any content. Even laws that expressly applied only to churches or to religious practices were being held neutral and generally applicable. And RFRA's advocates naturally emphasized this worst case scenario, which maximized the need for legislative remedies.

This legislative record was held against RFRA in Boerne. The Court inferred that Congress did not really believe that there are many violations of Smith in America today. In the Court's view, this hearing record showed that even Congress believed that the proportion of constitutional violations to RFRA violations would be small. And it followed, in the Court's view, that Congress was not interested in facilitating the proof of Smith violations, but in reaching other conduct that even Congress did not believe violated the Constitution as interpreted in Smith.

But in the meantime, the Court decided Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), and gave real content to the requirements of neutrality and general applicability. Lukumi compared the local ordinances regulating religious practices to a broad range of other state and local laws dealing with analogous secular conduct and with secular conduct that caused analogous harms. It wrote into holding Smith'sdictum that if a state permits exceptions for secular conduct, it must have compelling reason for refusing exceptions for analogous religious conduct. 508 U.S. at 537.

Some lower court interpretations of Smith began to change in light of Lukumi. One district court held that a rule requiring all university freshmen to live in the dorm was not neutral and generally applicable, because nearly a third of freshmen were covered by various exceptions. The Free Exercise Clause -- not RFRA -- therefore required an exception for a freshman who wanted to live in a religious group house. Rader v. Johnston, 924 F. Supp. 1540 (D. Neb. 1996). Another district court held that a landmarking law was not neutral and generally applicable, because it contained three exceptions for various secular situations. The Free Exercise Clause -- not RFRA -- therefore required an exception for a church stuck with a useless landmark. Keeler v. City of Cumberland, 940 F. Supp. 879 (D. Md. 1996).

If these decisions are good law, and I think they are, then there are many violations of Smith in the land. Federal, state, and local laws are full of exceptions for influential secular interests. Moreover, the details of federal, state, and local laws are frequently filled in through individualized processes that provide ample opportunity to exempt favored interests and refuse exemptions to less favored interests, often including religious practice. Where a law has secular exceptions or an individualized exemption process, any burden on religion requires compelling justification under reasonable interpretations of Smith.

The problem, of course, is that these violations are difficult to litigate. There is room for endless argument whether the secular exception is really analogous to the claimed religious exception, and whether the lawmaking and exemption process is really individualized. In the very best case, all free exercise litigation will be far more complicated and expensive, and many good claims will be lost. In the more likely case, courts will defer to regulators and only the most egregious discrimination against religion will ever be adjudicated.

There is also continued dispute about the meaning of Smith even in principle. The discrimination against religious practice in Lukumi was so extreme that it can be distinguished from the more widespread discrimination of the sort found in Rader and Keeler. In its discussion of Smith in Boerne, the Court reaffirmed the hybrid rights exception to Smith, and it reaffirmed the rule that exemptions for secular hardship require exemptions for religious hardship. 65 U.S.L.W. 4613. But when it considered whether RFRA was a proportionate response to violations of Smith, it used the phrase "religious bigotry" as a shorthand for what Smith required. Id. at 4619. This shorthand made it easier to argue that RFRA was a disproportionate response to a small number of actual violations, but as a summary of Smith, it is either inaccurate or a term of art. The word "bigotry" never appears in either the Smith or Lukumi opinions; the Smith-Lukumi test is an objective test of differential treatment, not a subjective test of governmental motive. "Religious bigotry" must be a label for unjustified differential treatment of religion; we should not assume that the new phrase was meant to change the Smith-Lukumi standard without explanation and once again dramatically shrink constitutional protection for religious liberty without briefing or argument. Lower court judges will almost never find a Smith violation if they conclude that doing so requires them to find state or local officials guilty of religious bigotry in a subjective sense.

I explain this ambiguity in detail that may be excessive, because it is critical both to the scope of remaining free exercise protection and to the scope of Congressional power. Loose Congressional rhetoric to the effect that Smith eliminates nearly all protection for free exercise can actually shrink Congressional power, as Boerne illustrates. Congressional factfinding preliminary to enforcement legislation must focus on regulatory fields in which violations of Smith may be widespread but are difficult to prove. The more such regulatory fields there are, the greater the reach of Congress's power to enforce the Fourteenth Amendment right to free exercise. Whether there are many such regulatory fields or few depends on whether we take seriously the exceptions to Smith and the requirement of neutrality and general applicability. Members must resist the temptation to bash the Court by exaggerating the harm it has caused; the unexaggerated harm is quite enough to justify Congressional response.

III. What Congress Can Do Now

Congress can no longer enact a general solution to the problem of free exercise law. But it can enact a series of overlapping partial solutions that would collectively provide substantial protection for religious practice.

1. The Treaty Power. Congress has power to enact legislation to implement treaties, even if the treaty deals with matters that would otherwise be left to state regulation. Missouri v. Holland, 252 U.S. 416 (1920), citing cases dating back to the 1790s. Congress could enact a universally applicable law, requiring something like intermediate scrutiny for burdens on religious practice, to bring the United States into compliance with the International Covenant on Civil and Political Rights.

It is critical to understand that this proposal does not assume that treaties limit the sovereignty of the United States, or that treaties are enforceable over U.S. objection, or that treaties change domestic law of their own force. In the case of the International Covenant on Civil and Political Rights, the Senate's Resolution of Ratification expressly declares that the Covenant is not self-executing, Sen. Exec. Rep. 102-23 at 23; the intent of this declaration was "to clarify that that Covenant will not create a private cause of action in U.S. Courts." Id. at 19 (emphasis added). Legislation to implement the Covenant would be wholly consistent with that declaration. Implementing legislation assumes that the Covenant has no effect on domestic law until and unless Congress passes implementing legislation by the usual method, with approval by both Houses of Congress and presentment to the President. All rights created would come from Congress, not from the Covenant. The Covenant merely provides Congress with an additional source of power, to be used only if and when Congress thinks it appropriate.

To the extent that Congress believes that the United States is in compliance with the Covenant, it will not pass implementing legislation, and no judicially enforceable rights will be created. To the extent that Congress, in the independent judgment of both the House and Senate, believes that the United States is out of compliance, and to the extent that Congress chooses to bring the United States into compliance, Congress may pass implementing legislation to achieve compliance. Such legislation would provide for enforcement in American courts by the customary procedures. It would have no effect whatever on any attempt to enforce the Covenant in foreign or international courts. If anything, it would reinforce the Senate's position that the Covenant is not self-executing and that the United States may be trusted to implement the Covenant in its own way, consistent with our traditions and our political institutions.

Congress has ample basis to find that the United States is not in compliance with the Covenant's guarantee of religious liberty and that implementing legislation is necessary. The explanation is set out in full in a recent article by an international law specialist, which I am not. Gerald L. Neuman, The Global Dimension of RFRA, 14 Const. Comm. 33 (1997). Article 18 of the Covenant expressly protects not only religious belief, but also the "freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching." Art. 18, 1. This "freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others." Art. 18, 3. It is necessary but not sufficient that the limitation on religious practice be "prescribed by law." The requirement of necessity is independent, and must mean something more than necessary to any legitimate public purpose prescribed by law. Congress can properly find that the English text, the original French text, and the negotiating history all indicate that limitations on religious practice must be necessary to some state interest sufficiently important to justify the limitation. This is something less than the compelling interest test, but it is certainly more than rational basis. Perhaps the best translation into American legal traditions is intermediate scrutiny -- substantially related to an important governmental objective. See, e.g., Craig v. Boren, 429 U.S. 190 (1976).

I think it would be a mistake to simply re-enact RFRA and declare it to be an implementation of the Covenant. We would then get into arguments about whether the implementing legislation went further than the Covenant and whether the power to implement treaties includes the power to go further -- the same arguments we had over RFRA. It would be better to closely track the standard of the Covenant.

Legislation to implement the Covenant would be a partial solution in that it would provide less protection than RFRA provided, but it could have the same universal scope as RFRA. That is, Congress can use the treaty power to provide a base of partial protection for all religious practice. It could then use other powers to provide compelling interest protection for those religious practices within the reach of other powers.

2. The Commerce Power. Congress could enact RFRA's level of protection for religious practices affecting commerce. The statute would provide that any religious practice affecting commerce is exempt from burdens imposed by state and local legislation, except where the regulating jurisdiction demonstrates that the application of the burden to the individual serves a compelling government interest by the least restrictive means. The models here are the Privacy Protection Act of 1980, 42 U.S.C. 2000aa (1994), protecting papers and documents in preparation for a publication in or affecting commerce, and the public accommodations title of the Civil Rights Act of 1964, 42 U.S.C. 2000a (1994), forbidding racial and religious discrimination in places of public accommodation affecting commerce, and irrebuttably presuming that commerce is affected by any hotel and by any restaurant that serves interstate travelers.

The public accommodations law is particularly instructive as to Congressional power. Congress's first public accommodations law was the Civil Rights Act of 1875, enacted to enforce the Thirteenth and Fourteenth Amendments. The Supreme Court struck that law down as beyond the enforcement power. Civil Rights Cases, 109 U.S. 3 (1883). Congress's second public accommodations law was the Civil Rights Act of 1964, enacted with substantially the same scope in practical effect but pursuant to the commerce power. This Act was upheld in Katzenbach v. McClung, 379 U.S. 294 (1964), and Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964).

Congress did not enact the public accommodations law to maximize the sale of barbecue sauce. Rather, it enacted the public accommodations law because it was morally right, and it used the Commerce Clause because that was an available means to the end. Similarly here, protecting the religious practices of the American people is morally right, and to the extent that those practices affect commerce, the Commerce Clause is an available means to the end.

After United States v. Lopez, 514 U.S. 549 (1995), I doubt that the commerce power can reach religious practices that do not affect a commercial transaction. But many religious practices do affect commercial transactions. When burdensome regulation prevents a church from building a house of worship, as in Boerne, tens of thousands or even millions of dollars of commerce are prevented from happening. When a Roman Catholic hospital loses its accreditation in obstetrics because it refuses to teach abortion techniques in violation of its religious commitments, all the services and all the instruction its obstetrics program would have provided are prevented or diverted to other sites. If the hospital succumbs to state coercion and agrees to teach abortion techniques, the resulting abortions are themselves a service provided in commerce, and that commerce is diverted to the Catholic hospital from other sites.

It should not matter whether commercial transactions are prevented entirely, diverted from one provider to another, coerced, or changed in some other way: in all these cases, commerce is affected. The Court has long held that production of goods and services affects commerce, that individual transactions are within the commerce power if all such transactions cumulatively affect commerce, and that Congress can regulate commerce for moral or other non-economic motives. Unless we see dramatic changes in Commerce Clause doctrine, Congress can protect many religious practices under the Commerce Clause.

It would simplify litigation of the affecting-commerce issue if Congress enacted definitions or presumptions. For example, Congress could provide that if burdensome regulation of a religious practice causes or prevents the production, purchase, sale, lease, or employment of goods or services, commerce is affected. Or Congress could provide that the person seeking to justify a burden on religious practice bears the burden of persuasion on the affecting-commerce issue.

3. The Spending Power. Congress could enact RFRA's level of protection for religious practices burdened by the rules of any program receiving federal financial assistance. No person could be excluded from participation in, or denied the benefits of, or otherwise subjected to discrimination under any program or activity receiving federal financial assistance, because of a religious practice, unless application of the burden to the person served a compelling interest by the least restrictive means. The leading models here are Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d (1994), forbidding racial discrimination in federally assisted programs, similar civil rights statutes modeled on Title VI and protecting other classes, and the Equal Access Act, 20 U.S.C. 4071 et seq. (1994), protecting student speech in federally assisted secondary schools. Congressional power to attach conditions federal spending has been recognized since Steward Machine Co. v. Davis, 301 U.S. 548 (1937).

Conditions on federal grants must be "[]related to the federal interest in particular national projects or programs." South Dakota v. Dole, 483 U.S. 203, 207 (1987). Federal aid to one program does not empower Congress to demand compliance with RFRA in other programs. But within a single program, this requirement is easily satisfied. The federal interest is that the intended beneficiaries of federal programs not be excluded because of their religious practice. Congress should include language modeled on 42 U.S.C. 2000d-4a (1994), which defines the scope of aided programs for purposes of the obligation to refrain from burdening religious practices.

Conditions on federal grants must also be clearly stated. They are in the nature of a contract, and state and local entities are entitled to know what obligations they are assuming before they accept the federal money. Suter v. Artist M., 503 U.S. 347, 356 (1992); Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 17 (1981). This requirement can easily be satisfied by careful drafting.

A Spending Clause statute could protect many religious individuals who are subject to bureaucratic authority in federally assisted programs. Many of these cases will involve individual devotions or observance that do not lead to any commercial transaction and do not plausibly affect commerce. Thus, a Spending Clause statute and a Commerce Clause statute are complementary. Together they would address a large portion of the problem.

4. The Enforcement Power. City of Boerne v. Flores does not deprive Congress of all power to protect religious exercise under its power to enforce the Fourteenth Amendment. Congress must make a clear record that any statute is directed to deterring or remedying violations that, if all the facts could be readily proved, the Court would recognize as constitutional violations under Employment Division v. Smith. Plainly the Court means to require a more detailed factual record than Congress compiled for RFRA, and although constitutionality should not depend on what Congress thinks, Congressional rhetoric should put more emphasis on addressing free exercise violations as the Court understands them.

I doubt that the Court would uphold a re-enactment of RFRA under the Enforcement Clause no matter how good a record Congress compiled. But the Court may well uphold more particularized statutes directed to particular problems, if the Congress and the religious and civil liberties community do their homework and make their record.

The clearest example is land use regulation, which has enormous disparate impact on churches, which is administered through highly discretionary and individualized processes that leave ample room for deliberate but hidden discrimination, and where there is substantial evidence of widespread hostility to non-mainstream churches and some hostility to all churches. Here are some facts that have already been documented:

a. In the City of New York, churches are landmarked at a rate forty-two times higher than secular properties. N.J. L'Heureux, Jr., Ministry v. Mortar: A Landmark Conflict, in Dean M. Kelley, ed., Government Intervention in Religious Affairs 2 at 164, 168 (1986).

b. In the City of Chicago and some of its suburbs, zoning regulation is administered in such a way that it is nearly impossible to start a new church without consent of surrounding owners, and this consent is so often withheld, especially in the case of churches not affiliated with a well-known denomination, that finding a site for a new church is often impossible. Many of the resulting lawsuits are not about efforts to build new structures, but simply efforts to rent and occupy a storefront. I believe the same problem exists elsewhere, but it is well documented in and around Chicago. If the Committee will call the attorneys for these churches as witnesses, it can learn the details. Some of this discrimination can be proved; some of it cannot be. But so many churches would not be investing so much effort in litigation if there were no serious difficulties in locating sites.

c. Denominations that account for only 9% of the population account for about half the reported church zoning cases. That is, the zoning process disproportionately excludes small and unfamiliar faiths. This discrimination is often unprovable in any individual case, but when large numbers of cases are examined, the pattern is clear. These data are gathered in the Brief of the Church of Jesus Christ of Latter-Day Saints as Amicus Curiae in City of Boerne v. Flores.

d. Journalists have reported that new suburbs on the fringe of urban growth often exclude churches, even from mainstream denominations. R. Gustav Neibuhr, Here is the Church; As for the People, They're Picketing It, Wall St. J. at A1 (Nov. 20, 1991).

e. The process of administering zoning laws and the process of designating landmarks are highly individualized. Standards tend to be vague and manipulable; zoning for a parcel is easily changed if those in power desire to change it. Many key decisions are made at the level of individual parcels in applications for special permits or variances or in votes on zoning changes or in landmark designations. In Boerne for example, St. Peter Church was added to the historic district by a separate ordinance that applied only to St. Peter and to no other property. These land-use laws are often not neutral and they are almost never generally applicable in any meaningful sense. Thus, the resulting burdens on churches should be subject to strict scrutiny under Employment Division v. Smith. There are Smith violations here that are difficult to prove, and that is an appropriate case for enforcement legislation even under Boerne. Indeed, to subject the location of churches to the zoning and landmarking procedures in many jurisdictions is to subject the First Amendment right to gather for worship to a standardless licensing scheme, in violation of settled principles developed under the Free Speech Clause. See, e.g., City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988); Griffin v. City of Lovell, 303 U.S. 444 (1938).

If religious and civil liberties organizations will gather the evidence and bring it to Congress, there are many areas of discretionary decisions where a pattern of widespread but hard-to-prove discrimination against religion can be documented. The first and easiest to document would be the use of land use regulation to exclude churches. Specific legislation addressing these particular problems would likely be more effective than a general standard such as that in RFRA. Churches do not need the right to locate just anywhere, without regard to impact on neighbors, but they should have the right to locate somewhere within reach of the members of each worshiping community. Congressional investigation would reveal that churches do not have that right today.

5. The Power to Make Federal Law. Congress has undoubted power to determine the scope and reach of federal statutes and regulations. Congress can therefore provide that federal law shall not be interpreted to substantially burden a religious practice unless necessary to serve a compelling state interest. EEOC v. Catholic Univ., 83 F.3d 455, 469-70 (D.C. Cir. 1996). Nothing in Boerne casts any doubt on this proposition. Rather, the opinion reaffirms that "When Congress acts within its sphere of power and responsibilities, it has not just the right but the duty to make its own informed judgment on the meaning and force of the Constitution." 65 U.S.L.W. at 4619. There is therefore no reason to doubt that RFRA is valid with respect to federal law, although the challenge will be made and courts will have to decide it again.

It would be prudent for Congress to reaffirm its view that RFRA is still in effect with respect to federal law, either by joint resolution or in a savings clause in any new legislation under the treaty power, the commerce power, the spending power, or the enforcement power. Otherwise, we will have to spend time litigating whether the passage of legislation to replace the invalidated part of RFRA was an implied repeal of the valid part.

There may also be need for more specific federal legislation directed at particular problems. For example, trustees in bankruptcy persist in filing fraudulent transfer claims against churches to recover recover ordinary-course pre-bankruptcy contributions, and many lower courts are rejecting RFRA defenses, even though the only appellate holding allows the RFRA defense. In re Young, 82 F.3d 1407 (8th Cir. 1996), vacated on other grounds, 65 U.S.L.W. 3850 (1997). The general language of RFRA has not been enough to avoid repeated litigation, even though the burden of refunding old contributions long since spent should be obvious to anyone.

Indeed, these are cases that could be resolved under the Free Exercise Clause as interpreted in Smith. The generally applicable rule in bankruptcy is that the debtor has control of his funds and may dissipate them prior to bankruptcy, with the result that creditors generally go unpaid. Creditors cannot recover funds gambled away at casinos, because the debtor gets entertainment value and a chance to win money, In re Chamakos, 69 F.3d 769 (6th Cir. 1995), but many lower courts hold that the debtor gets nothing in exchange for his weekly contribution to his church.

Congress can solve this problem and largely end this litigation with a specific amendment to the Bankruptcy Code protecting ordinary-course charitable contributions made in good faith. Congress could at the same time address the related problem of whether debtors who choose to make voluntary partial payments to their creditors under chapter 13 can continue to contribute to their church. I am sure there are other specific issues in federal law, but these bankruptcy issues are ripe for resolution because they have already caused much litigation.

6. Remedies. Any legislation to protect religious liberty should provide explicit remedies. RFRA's provisions for individual rights of action for damages, injunctions, and attorneys' fees are a reasonable model. The Court generally assumes that you did not mean for your laws to be enforced unless you tell it otherwise. It is particularly important to provide for private enforcement in Spending Clause legislation; it is extremely unlikely that any federal grant will be revoked because of one or a few incidents of suppressing religious practice.

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