The Religious Freedom Restoration Act of 1993 prohibits the government from substantially burdening a person's exercise of religion even if the burden results from a rule of general applicability.
The Gov't is forbidden unless it can demonstrate that the burden is in furtherance of a compelling gov't interest and is the least restrictive means of furthering that compelling gov't interest.
A church wanted to expand; it applied for a building permit.
The city council had previously passed a law requiring the city's Historic Landmark Commission to preapprove construction affecting landmarks or buildings in a historic district.
The commission denied the building permit.
The church filed suit under the RFRA.
Court of Appeals found for church, RFRA constitutional.
SCOTUS reversed, RFRA unconstitutional.
What is the appropriate scope of Congressional power under Section 5 of the 14th amendment?
Congress may only enact legislation under Section 5 of the 14th amendment which is remedial or preventative in nature and that is designed to have congruence and proportionality with the substantive rights the Court has defined.
Congress's power under Section 5 extends only to enforcing the provisions of the 14th amendment, it is remedial in nature.
The design of the amendment and the text are inconsistent with the suggestion that Congress has the power to decree the substance of the 14th amendment's restrictions on the states.
There is a thin line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law; that line must be preserved.
The history of the amendment confirms that the power given to Congress was remedial, not plenary. Congress is allowed to correct the unjust legislations of the states.
Precedent also confirms the remedial nature of the power.
"Congruence and proportionality" requirement: While preventative rules are sometimes appropriate remedial measures, there must be a congruence between the means used and the ends to be achieved. The appropriateness of the remedial measures must be considered in the light of the evil presented.
The 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.
It appears instead to attempt a substantive change in constitutional protections.
Preventative measures prohibiting certain types of laws may be appropriate when there is reason to believe that many of the laws affected by the enactment have a significant likelihood of being unconstitutional.
Most state laws to which the RFRA applies are not ones which will have been motivated by religious bigotry.
The precedent (Human Resources of Oregon v. Smith) was incorrectly decided; it should be revisited before any other Free Exercise Clause cases are examined.