A blessing in disguise: protecting minority faiths through state religious freedom non-restoration acts.

I. INTRODUCTION

The diversification of American society has increased the prospect that an individual will suffer discrimination at the hands of government on the basis of religion. Our polity arguably has matured to the point where official discrimination is less likely to be inflicted through intentional wrongdoing.(1) On the other hand, the mushrooming of the number and variety of religious faiths has increased the probability that a secular law, meant to apply to the entire citizenry in a nondiscriminatory fashion, will conflict with the religious practices of adherents of non-mainstream faiths whose beliefs and practices were unknown to the legislators.

Odd as it may seem for a nation founded in part upon the desire to be unleashed from the shackles of conformity to a single religion, the struggle for legal protection of religious liberty of minority faiths persists as we enter the new millennium. Ironically, the greatest threat to the ability of members of non-mainstream religions to adhere to their tenets arose in the past decade as a result of two decisions of the United States Supreme Court -- Employment Division v. Smith(2) and City of Boerne v. Flores.(3) Federal statutes designed to countermand the dilution of religious freedom triggered by these decisions continue to be floated, but even if passed, they face serious constitutional hurdles. The very constitutional obstacles to these federal proposals, however, afford affirmative support for state religious freedom non-restoration acts that maximize the ability of all individuals to be faithful to their religion.

II. THE DWINDLING PROTECTION OF MINORITY RELIGIOUS LIBERTY UNDER THE UNITED STATES CONSTITUTION

Ten years ago, there was no cause to look beyond the United States Constitution to secure religious liberty for worshipers of minority faiths. As of 1990, the United States Supreme Court had consistently interpreted the Free Exercise Clause of the First Amendment(4) to afford maximum protection of all individuals whose religion was compromised by requirements of generally applicable laws. The Court solidly endorsed a strict scrutiny test to gauge the constitutionality of legislative or other governmental measures that had the purpose or effect of invading the free exercise of religion.(5) The Court's test demanded that the person claiming a constitutional deprivation first prove that she had a sincerely-held religious belief that the government had infringed. In assessing whether the plaintiff had satisfied her burden, the Court was quite solicitous of minority religious precepts. The Court refused to inquire into the centrality of the belief to the individual's religion or the validity of the individual's interpretation of that belief.(6) The plaintiff was not required to establish that her dogmas were consistent, logical or acceptable to others.(7) To the contrary, the courts were instructed to accept a belief as religious even where the article of faith was not shared by all members of the sect or was even "rank heresy to followers of the orthodox faiths."(8)

While deferential to the individual's claimed religious belief, the Court was quite rigorous in evaluating the government's contention that the demands of civil society trump the individual's religious obligation. To sustain the burden on the religious exercise, the government had to prove both that a) it had a compelling governmental interest, and b) the government's compelling interest could not be satisfied by means less restrictive of the individual's religious beliefs.(9) The test applied even if the government in good faith enacted a general law that unintentionally and unknowingly impinged upon the practice of an individual's faith.

A. Abrogating Strict Scrutiny for Unintended Invasions of Religious Liberty--The Court's Smith Decision

In 1990, however, the United States Supreme Court diminished the safeguards afforded to non-mainstream faiths by the Free Exercise Clause in its 5-4 opinion in Employment Division v. Smith.(10) Smith arose out of the denial of unemployment benefits to two members of the Native American Church, who were fired from their jobs at a drug rehabilitation facility because they had ingested peyote during a church ceremony. Oregon law criminalized possession of peyote as a controlled substance and contained no exception for use of peyote for sacramental purposes. Finding that plaintiffs had been fired for work-related misconduct, the Employment Division of the Oregon Department of Human Resources ruled plaintiffs ineligible for unemployment compensation. Plaintiffs challenged the ruling, arguing that the Constitution precluded the government from conditioning public benefits on the sacrifice of religious practices.(11)

The Supreme Court refused to apply the compelling interest/no less restrictive alternatives test to the plaintiffs' Free Exercise claim. The Court held that, in ordinary circumstances, it would sustain a neutral and generally applicable law that had the effect of burdening an individual's religious beliefs as long as the government had a rational basis for passing the law. Courts were now to apply strict scrutiny to governmental measures that invaded religion only in three limited circumstances. First, the government must continue to satisfy the compelling interest/no less restrictive alternatives test in the rare instances in which it passed a law whose object "is to infringe upon or restrict practices because of their religious motivation."(12) Secondly, courts would utilize the heightened standard of review for what the Court termed "hybrid" violations -- governmental action that violated not only religious liberty but in addition trammeled upon a second fundamental right, such as freedom of speech.(13) Finally, the Court maintained strict scrutiny for government programs that have a protocol for affording exemptions from a law of general applicability but that deny an exemption to a religious objector.(14)

Mainstream religions will not likely suffer the erosion of religious liberty precipitated by Smith because they have the political clout to ensure that no majoritarian legislation is passed that inadvertently offends their religious tenets. Minority faiths, however, are easily victimized by uniform laws promulgated either in ignorance of, or indifference to, the fact that the laws burden their religious prescriptions.(15) Justice Scalia, writing for the majority in Smith, accepted this inequity as an inevitable by-product of the Court's approach to Free Exercise claims:

   It may fairly be said that leaving accommodation to the political process
   will place at a relative disadvantage those religious practices that are
   not widely engaged in; but that unavoidable consequence of democratic
   government must be preferred to a system in which each conscience is a law
   unto itself or in which judges weigh the social importance of all laws
   against the centrality of all religious beliefs.(16)

In her concurring opinion, Justice O'Connor condemned the majority's offhanded discounting of minority belief systems. Justice O'Connor castigated the Court's abrogation of strict scrutiny for unintended burdens on religious liberty as "dramatically depart[ing] from well-settled First Amendment jurisprudence"(17) in favor of an approach that is antithetical to the Constitution's intended solicitude for non-mainstream religious beliefs:

   The Court today suggests that the disfavoring of minority religions is an
   "unavoidable consequence" under our system of government and that
   accommodation of such religions must be left to the political process. In
   my view, however, the First Amendment was enacted precisely to protect the
   rights of those whose religious practices are not shared by the majority
   and may be viewed with hostility. The history of our free exercise doctrine
   amply demonstrates the harsh impact majoritarian rule has had on unpopular
   or emerging religious groups such as the Jehovah's Witnesses and the
   Amish.(18)

B. Post-Smith Interpretations of the Free Exercise Clause--Solidifying the Erosion of Religious Freedom

While individual Justices have volleyed attacks on Smith, prospects for judicially restoring strict scrutiny under the Free Exercise Clause remain dim. The United States Supreme Court reaffirmed the vitality of Smith in Church of Lukumi Babalu Aye, Inc. v. Hialeah.(19) The case arose out of a challenge to city ordinances that criminalized animal sacrifices. As a consequence of the ordinances, religious rituals of members of the Santeria religion, whose devotion to spirits is expressed through sacrifice of animals, were outlawed. The Church of the Lukumi Babalu Aye, whose congregants practice the Santeria religion, filed a civil action averring that these ordinances violated the Free Exercise Clause.(20)

The Supreme Court began its analysis by endorsing the watered-down standard of scrutiny adopted in Smith -- that a law that is neutral and generally applicable but that has the effect of burdening a religious practice need not be justified by a compelling governmental interest.(21) The Court found, however, that the Hialeah ordinances were neither neutral nor generally applicable; to the contrary, the object of the ordinances was to suppress the religious practices of the followers of the Santeria faith.(22) The city council accomplished this goal by selectively burdening only sacrifices motivated by religious beliefs while authorizing the killing of animals for secular purposes.(23) Thus, the Court subjected the legislation to strict scrutiny and concluded that the City of Hialeah's ordinances failed both prongs of the operable test. The city did not have a compelling interest in outlawing religious sacrifices and did not seek to achieve its objectives by means least restrictive of religious conduct.(24)

In his concurring opinion, Justice Souter plotted a roadmap for future litigants wishing to have the Court override Smith and restore strict scrutiny under the Free Exercise Clause for unintended burdens on religious liberty. Justice Souter dismissed as dictum the majority's purported affirmance of the Smith rule for neutral and generally applicable legislation that has the effect of burdening religion, as the ordinances in question were enacted with the purpose of invading the religious rituals of the Santeria.(25) Justice Souter then called for a wholesale re-examination of Smith in a future case that levied a constitutional attack on a law that had the effect, but not the purpose, of burdening religion.

In the balance of his concurring opinion, Justice Souter outlined why he believed it appropriate to reconsider Smith. First, Justice Souter analyzed at length why Smith could not be reconciled with the Supreme Court's precedents existing at the time that the Court issued the Smith opinion, precedents that the Smith Court did not overrule.(26) He then offered five reasons why principles of stare decisis do not preclude reconsideration of the Smith rule as it applies to neutral and generally applicable laws with the effect, albeit not the purpose, of burdening religion. First, neither the petitioner nor respondent in Smith had advocated abandonment of strict scrutiny for laws that unintentionally invaded the free exercise of religion.(27) Because the new test for Free Exercise claims was rendered without benefit of "`full-dress argument'" on that issue, the "constitutional rule announced sua sponte is entitled to less deference than one addressed on full briefing and argument."(28) Second, the precedential weight of Smith is further diminished by the fact that it was not necessary for the Smith Court to abrogate strict scrutiny in order to uphold the statute criminalizing use of peyote. Instead, the Court could have followed Justice O'Connor's reasoning and found that the state had a compelling interest that could not be satisfied by less restrictive alternatives.(29) Consequently, the new rule announced in Smith "approaches without more the sort of `dicta ... which may be followed if sufficiently persuasive but which are not controlling.'"(30) Third, because the new test adopted in Smith is in its infancy, the policy underlying stare decisis is weaker than if the decision had been relied upon over a substantial period of time.(31) Fourth, because the Smith Court did not overrule precedents that applied strict scrutiny to all Free Exercises claims, re-examination of Smith is not only wholly consistent with stare decisis, but also necessary to resolve "an intolerable tension in flee-exercise law."(32) Finally, Justice Souter justified his call for review of Smith by the fact that the Smith majority failed to consider the text and historic origins of the Free Exercise Clause of the United States Constitution.(33) While the claims in Church of Lukumi Babalu Aye did not present the opportunity to review the application of strict scrutiny to neutral and generally applicable laws that have the effect of burdening a religious practice, Justice Souter urged reconsideration in a case where the issue is squarely presented.

There is little reason to believe that the Court will accept Justice Souter's invitation to revisit Smith. Five Members of the Court -- Chief Justice Rehnquist and Justices Scalia, Stevens, Kennedy and Thomas -- reaffirmed Smith in Church of the Lukumi Babalu Aye. Of the four Justices who voted in Smith for retention of strict scrutiny for all Free Exercise claims, only Justice O'Connor remains on the Court. Justice Breyer, who replaced Justice Blackmun, has joined Justice Souter in advocating reconsideration of Smith.(34) On the other hand, Justice Thomas, having succeeded Justice Marshall, endorsed the Smith approach by joining the relevant part of the majority's opinion in Church of the Lukumi Babalu Aye.(35) Justice Ginsburg, who inherited the seat formerly occupied by Justice White, implicitly assumed the correctness of Smith in City of Boerne v. Flores.(36) At present, then, it is questionable whether any entreaty to the Court to reconsider Smith would command the four Justices necessary to grant certiorari, much less garner the majority needed to overrule the decision.

III. THE FEDERAL LEGISLATIVE RESPONSE TO SMITH

While federal judicial prospects for overruling Smith are dim, Congress has approved legislation to safeguard minority religions. Relying on its power under Section 5 of the Fourteenth Amendment,(37) Congress overwhelmingly passed the Religious Freedom Restoration Act of 1993 (RFRA).(38) Congress made no attempt to disguise the fact that it was enacting RFRA as a direct response to Smith. The statute includes Congress' finding that the Smith decision "virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral towards religion."(39) The purpose of RFRA, set forth unambiguously in the statute, is "to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963)and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened."(40)

As the title of RFRA suggests, Congress legislatively restored strict scrutiny for federal, state, and local governmental actions that have the effect of burdening the exercise of a person's religion, even if that burden was imposed through a law of general applicability.(41) The person whose religious exercise is infringed may assert a violation of RFRA "as a claim or defense in a judicial proceeding and obtain appropriate relief against a government."(42) The government could justify the burden only if it demonstrates both a compelling governmental interest and the lack of any less restrictive means of furthering that compelling interest.(43)

RFRA manifests Congress's sensitivity to the inability of the political process to protect non-mainstream faiths. The Senate Report acknowledges that "[s]tate and local legislative bodies cannot be relied upon to craft exceptions from laws of general application to protect the ability of religious minorities to practice their faiths...."(44) The statute expressly recites Congress's finding that "laws `neutral' toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise."(45)

The Supreme Court dashed the promise RFRA afforded minority adherents when it declared the statute unconstitutional in City of Boerne v. Flores.(46) Boerne arose out of the city's denial of the Archbishop of San Antonio's application for a building permit seeking to enlarge his church to accommodate the growing number of parishioners. The Archbishop brought a civil action contesting the denial of the permit, which included a claim that the city of Boerne had violated RFRA.(47)

The Supreme Court's holding that RFRA was unconstitutional rested on two interrelated structural grounds. First, because Congress did not have the authority under Section 5 of the Fourteenth Amendment to enact RFRA, Congress disturbed the constitutional allocation of power between the federal government and the states.(48) Second, by attempting to countermand the Court's Smith decision, Congress offended the principles of horizontal separation of powers, invading the province of the judiciary.(49)

The first basis on which the Court declared RFRA unconstitutional was that Congress acted beyond its enforcement power conferred by Section 5 of the Fourteenth Amendment. The Court acknowledged that Congress has great discretion in selecting how to enforce the substantive provisions of Section 1 of the Fourteenth Amendment most effectively.(50) Although Congress may strive to deter or remedy violations by barring conduct that is of itself constitutional,(51) it is not empowered to expand the definition of the right itself.(52)

The Boerne Court concluded that RFRA was not an effort to redress documented instances of purposeful incursions on religious liberty -- the only invasions that, after Smith, the Free Exercise Clause demands be justified by compelling governmental interests.(53) Instead, Congress attempted to expand the reach of the Constitution by legislating strict scrutiny for unintended burdens on religious freedom created by neutral laws of general applicability. The Court found that the power improperly exerted by Congress was comparable to the federal legislative authority sought in the first draft of the Fourteenth Amendment authored by Representative Bingham. This initial draft assigned Congress the power to "make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities ... and ... equal protection in the rights of life, liberty and property."(54) The draft amendment was roundly opposed on the ground that it represented an unwarranted trespass upon the responsibility of the states).(55) Likewise, the Boerne Court reasoned, RFRA manifested "a considerable congressional intrusion into the States' traditional prerogatives and general authority to regulate for the health and welfare of their citizens."(56)

The Boerne Court found that not only did Congress intrude on the authority of the states when it worked a substantive expansion of the right to free exercise of religion guaranteed by Section 1 of the Fourteenth Amendment, but it also encroached upon the province of the United States Supreme Court. The Framers of the Constitution sought to preserve liberty by erecting multiple divisions of power amongst the branches of government. Beyond parceling the legislative power between the federal and state government, the Constitution cordons the power of Congress from that of the judicial branch of the federal government. RFRA, the Court concluded, was an effort to superimpose upon future cases the legislature's preference for -- rather than the Court's interpretation of -- the scope of the right to free exercise of religion under the United States Constitution. By its action, Congress arrogated the Court's exclusive authority, declared in Marbury v. Madison,(57) "to say what the law is."(58) As the Court tersely admonished, "it is the Court's precedent, not RFRA, which must control."(59)

Boerne did not mark the end of federal efforts to legislate strict scrutiny for deprivations of religious exercise unintentionally imposed by neutral laws of general applicability.(60) Commentators opined that Congress could restore strict scrutiny for unintended burdens on religion while passing constitutional muster under Boerne by either a) expanding the legislative record or more narrowly tailoring the act to satisfy the standards that Boerne demanded for remedial legislation under Section 5 of the Fourteenth Amendment; or b) relying upon the Spending Power,(61) the Commerce Power(62) or Congress's power to implement treaties,(63) rather than the Fourteenth Amendment, as the basis for mandating the compelling governmental interest/least restrictive alternative test for all burdens on religious liberty.(64)

The House of Representatives pursued both strategies when on July 15, 1999 it approved the Religious Liberty Protection Act of 1999 (RLPA).(65) First, Congress relied upon its powers under the Spending and Commerce Clauses in tailoring RLPA.(66) Section 2 of the Act prohibits the government from substantially burdening religious liberty through rules of general applicability a) in "a program or activity, operated by a government, that receives Federal financial assistance"; or b) "in any case in which the substantial burden on the person's religious exercise affects, or in which a removal of that burden would affect, commerce with foreign nations, among the several States, or with Indian tribes."(67) The government, however, could carry its burden by demonstrating a compelling interest that could not be satisfied by an alternative means less restrictive of the religious exercise in issue.(68)

Congress also drew upon its power under Section 5 of the Fourteenth Amendment when it promulgated discrete standards for land use regulations that substantially burden religious exercise. Where the "government has authority to make individualized assessments of the proposed uses to which real property would be put," the government must prove that any substantial burden on religious exercise furthers a compelling governmental interest and is the least restrictive means of furthering that interest.(69) RLPA further bars government agencies from crafting land use regulations that a) treat religious institutions on terms less favorably than nonreligious institutions;(70) b) discriminate on the basis of religion or religious denomination;(71) or c) unreasonably exclude or limit institutions principally devoted to religious exercise.(72)

The fate of federal legislative efforts to reinstate the safeguarding of minority faiths eviscerated by Smith remains uncertain both as a political and constitutional matter. While RLPA passed the House, no counterpart Senate bill has been introduced.(73) Even were the Senate to introduce and pass RLPA and procure the President's signature,(74) challenges to the constitutionality of RLPA are inevitable. Representatives Conyers, Scott, Watt, Waters, Meehan and Baldwin filed a dissenting analysis to the House Report on RLPA, expressing their belief that a) RLPA could not be sustained under Congress' power under Section 5 of the Fourteenth Amendment,(75) b) rather than insulate the bill from constitutional attack, reliance upon the Commerce and Spending Powers created additional constitutional problems,(76) and c) like RFRA, RLPA arguably usurped the authority of the Supreme Court by imposing an across-the-board strict scrutiny standard for burdens on religious liberty, the very standard that the Court repudiated in Smith.(77)

Even were RLPA to survive political opposition and constitutional challenges, it would fail to furnish complete relief to persons whose religious practices are infringed by state entities. RLPA does not abrogate the Eleventh Amendment immunity of states;(78) consequently, individuals whose religious exercise is encumbered in violation of RLPA could not recover damages from the state in an action filed in federal court. Nor may the victim recover damages from the state by filing suit in state court. In a decision issued on the final day of the last Term, the Supreme Court in Alden v. Maine(79) held that Congress lacks the power under Article I of the Constitution to subject non-consenting states to suits for damages in their own court.(80) Hence a person whose religion is burdened by a neutral law passed by a state legislature could at most procure prospective relief for the violation of RLPA but could not recover damages for the harm caused prior to judgment.(81)

IV. PROTECTING RELIGIOUS LIBERTY UNDER STATE STATUTES

While federal statutory efforts to restore strict scrutiny for unintended infringement of religious liberty remain in political and constitutional limbo, state statutes afford greater promise for reinstating the compelling interest/no less restrictive alternatives test for burdens on religious exercise imposed by neutral laws of general applicability.(82) Properly drafted, state religious freedom acts are not infected by the constitutional infirmities that doomed RFRA and that dangle over the proposed federal Religious Liberty Protection Act. To the contrary, the Boerne Court's rebuff of Congress's effort to restore the rights of religious minorities to expansive protection of their beliefs paves the road to the constitutionality of guaranteeing that religious liberty through state statutes.

A. State Religious Freedom Acts Do Not Rest upon the Power to Enforce the Fourteenth Amendment.

As previously analyzed,(83) the first basis on which the Court declared RFRA unconstitutional was that Congress acted beyond its powers conferred by Section 5 of the Fourteenth Amendment. By exceeding its enumerated authority, the Court reasoned, Congress arrogated "the States' traditional prerogatives and general authority to regulate for the health and welfare of their citizens."(84)

While the Court's conclusion deprived the United States Congress of the power to enact RFRA in its then-existing form, underlying the Court's repudiation lies express authority for state legislatures to achieve the same result. State legislatures seeking to insulate minority faiths against burdens imposed by laws of general applicability do not draw upon any power to remedy violations of the Fourteenth Amendment to the United States Constitution. Rather, as asserted expressly by the Arizona legislature in enacting its religious freedom restoration act, "Under its police power, the legislature may establish protections that ... supplement rights guaranteed by the Constitution."(85) State legislation that broadens the guarantee of religious liberty against unintended infringement falls squarely within the ambit of the states' "traditional prerogative" to preserve the welfare of its citizens that the United States Congress invoked when it enacted RFRA.

In the Federalist No. 45, James Madison, summarizing the federal-state balance intended by the Framers, asserted that the power to promote civil liberties would repose in the states:

   The powers delegated by the proposed Constitution to the Federal Government
   are few and defined. Those which are to remain in the State Governments are
   numerous and indefinite. The former will be exercised principally on
   external objects, as war, peace, negociation [sic], and foreign commerce.
   The powers reserved to the several States will extend to all objects,
   which, in the ordinary course of affairs, concern the lives, liberties, and
   properties of the people; and the internal order, improvement, and
   prosperity of the State.(86)

Consistent with Madison's description of the allocation of power to promote civil rights, for the first 150 years of our Nation it was left to state law to guarantee religious freedom against breach by state and local governments. The liberties enshrined in the original Bill of Rights were secured only against federal incursion.(87) While the ratification of the Fourteenth Amendment in 1868 afforded some federal constitutional restriction of state and local governmental acts, it was not until 1940 that the Supreme Court held that the rights safeguarded by the Free Exercise Clause of the First Amendment were fundamental and hence enforceable against the states.(88)

Even before the United States Supreme Court's pre-Smith jurisprudence constitutionally compelled that states avoid unintended burdens on religious exercise, state laws supplied exemptions to religious objectors from otherwise neutral, generally applicable laws.(89) Indeed, the tradition of state legislatures preserving the liberty of individuals to pursue their religious conscience dates back to colonial times.(90) As Justice O'Connor observed after reviewing the historic evidence in Boerne, "long before the First Amendment was ratified, legislative accommodations were a common response to conflicts between religious practices and civil obligation."(91)

Both the judicial and legislative branches of the federal government have endorsed the states' power to preserve the free exercise of religion against incursion by statutes of general applicability. The United States Supreme Court has acknowledged that so long as the state legislature does not violate the constraints of the Establishment Clause of the First Amendment to the United States Constitution,(92) legislative accommodation of religion "follows the best of our traditions."(93) Even Congress has recognized the states' role and power in protecting religious liberty, as the enforcement section of the proposed Religious Liberty Protection Act of 1999 provides, "Nothing in this subsection shall preempt State law that is equally or more protective of religious exercise."(94)

Eight states-Rhode Island,(95) Connecticut,(96) Illinois,(97) Florida,(98) South Carolina,(99) Arizona,(100) Texas,(101) and Idaho(102)--have exercised their police powers to enact laws requiring the exemption of religious objectors from neutral laws of general applicability unless the state can prove a compelling interest that cannot be satisfied by alternatives less restrictive of the exercise of religion.(103) In two other states, California and New Mexico, the legislature passed a religious freedom act but the Governor vetoed the legislation.(104) Although having the net effect of imposing a standard of scrutiny rejected by the United States Supreme Court in Smith, these acts do not depend upon any power to enforce the Fourteenth Amendment and hence do not suffer from the first defect that doomed RFRA. Nor do state religious freedom acts offend the second basis on which the Boerne Court struck down RFRA -- the Congressional invasion of the Supreme Court's domain.

B. State Religious Freedom Acts Do Not Usurp the United States Supreme Court's Power to Interpret the Federal Constitution.

The second basis on which the Boerne Court struck down RFRA is that Congress had trespassed upon the Supreme Court's prerogative to interpret the Constitution finally. This aspect of the Court's Boerne decision, however, does not doom efforts to legislate strict scrutiny under state law. Properly drafted, state enactments to preserve religious liberty against unintended governmental invasion do not challenge the United States Supreme Court's primacy in interpreting the Constitution.

The Federal Constitution merely fixes a floor of rights beneath which the state may not fall.(105) In establishing this baseline of liberty, the Supreme Court is constrained by federalism as well as the concern that the Court cannot reliably ascertain the effect of mandating a right that must be respected by each of the fifty states and their subdivisions.(106) States, not inhibited by the same factors, have historically been viewed as the laboratory for testing more generous treatment of individual rights.(107) In fact, several state courts have liberally interpreted the free exercise clauses of their own constitutions, rejecting Smith and applying strict scrutiny to neutral rules of general applicability,(108) States that opt to legislate strict scrutiny of unintended burdens on religious liberty do not snub the Supreme Court; to the contrary, they act in the long and desired tradition of independence in ministering to the unique needs of their constituents.

Interestingly, in a seemingly unrelated decision issued the day after Boerne, the Supreme Court affirmed the prerogative of states to prescribe rights broader than the Court's interpretation of liberties guaranteed by the United States Constitution. In Washington v. Glucksberg,(109) the Court held that the Due Process Clause of the Fourteenth Amendment does not embrace the right to physician-assisted suicide. The Court conceded that it is restrained in declaring liberty interests under the Fourteenth Amendment because recognizing a right under the Due Process Clause would "place the matter outside the arena of public debate and legislative action."(110) Rejecting a federal constitutional mandate that a right to physician-assisted suicide exists, the Court concluded, "permits this debate to continue, as it should in a democratic society."(111)

State legislation preserving religious freedom against inadvertent as well as purposeful burdens is the product of public debate over the appropriate balance between the demands of public order and the liberty of each and every individual to pursue the dictates of that person's religion. The democratic process may conclude that civil society can and should accommodate the diversity of individual religious beliefs absent compelling governmental interests that cannot be satisfied by less restrictive alternatives. This conclusion does not proclaim lack of obeisance to Supreme Court rulings. Instead, the judgment to maximize the free exercise of religion is entirely consistent with the constitutional scheme that empowers each state to resolve the debate over affording rights, above the threshold fixed by the Constitution, as the majority sees fit.

Even the Smith Court did not assert that its repudiation of strict scrutiny under the Free Exercise Clause disempowered the states from insisting that the government offer a weightier justification to deny religious exemptions from laws of general applicability. To the contrary, the Court recognized that its decision would result in "leaving accommodation to the political process."(112) Hence, unlike RFRA, state political processes that choose to demand strict scrutiny in evaluating unintended burdens on religious liberty do not step on the toes of the United States Supreme Court.

C. Proper Drafting Is Necessary to Maximize the Constitutionality of State Religious Freedom Acts

There is no intrinsic constitutional obstacle to state laws guarding religious freedom from unintended burdens imposed by neutral laws of general applicability. Careful drafting is necessary, however, to ensure that the state legislature is not accused of improperly seeking to enforce the Fourteenth Amendment or to second-guess the Court's construction of the Free Exercise Clause of the United States Constitution.

1. State Religious Freedom Acts Should Specify the Power the Legislature Is Exerting and Should Disassociate the Acts from the Free Exercise Clause of the United States Constitution.

To insulate more completely its religious freedom act from a Boerne-type attack, the state legislature should express that it is relying upon its police power and should disavow any interference with the United States Supreme Court's interpretations of the Federal Constitution. The Arizona and Idaho legislatures refuted any inference that they were second-guessing the Supreme Court's construction of the Federal Constitution by including the finding that "this state has independent authority to protect the free exercise of religion by principles that are separate from, complementary to and more expansive than the [F]irst [A]mendment of the United States Constitution."(113) The Texas legislature admirably was even more explicit in staking out the independence of its religious freedom act from the United States Constitution, RFRA, and its progeny when it prescribed that "[t]he protection of religious freedom afforded by this chapter is in addition to the protections provided under federal law."(114)

Interestingly, several of the state religious freedom acts have provisions acknowledging that the statute does not interpret, address, or affect the Establishment Clause of the First Amendment.(115) To make equally clear that the legislature does not intend to quibble with the United States Supreme Court's construction of the Free Exercise Clause, the state religious freedom act should include the analogous proviso that "Nothing in this act shall be construed to affect, interpret or in any way address that portion of Amendment I of the United States Constitution respecting the Free Exercise of Religion."

2. State Religious Freedom Statutes Should Be "Non-Restoration "Acts

RFRA was unabashedly a direct reaction to the Supreme Court's Smith decision. In the Preamble to the Act, Congress recited that Smith "virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion."(116) The stated purpose of RFRA, reflected in the title of the act, was "to restore the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder."(117) It was Congress' overt countermanding of the Court's interpretation of the Free Exercise Clause that led to the constitutional demise of RFRA.

A state legislature need not and should not characterize its religious liberty act as an effort to restore First and Fourteenth Amendment rights plundered by the United States Supreme Court. To the contrary, the state religious freedom act should be entirely one of non-restoration. The legislature should make plain that rather than playing Monday-morning quarterback to the Smith Court's reading of the Free Exercise Clause, the legislature is providing for the health, safety, and welfare of the citizens of the state by creating rights that are wholly independent of the Federal Constitution and indifferent to the Supreme Court's view of federal rights.(118)

Unfortunately, the majority of state religious freedom acts unnecessarily lug the unconstitutional baggage of RFRA. Six of the eight enacted laws and one of the two vetoed acts are titled or couched in terms of "restoration" of religious liberty.(119) Perhaps least forgivable is the express reference in the body of the legislation that the state is restoring religious liberty that has been eradicated by the Supreme Court. Illinois titled its legislation the "Religious Freedom Restoration Act"(120) and both Illinois and South Carolina incorporated verbatim language from RFRA concerning the effect of the Supreme Court's opinion in Smith.(121) Both the Illinois and South Carolina acts further include findings that the new enactment would "restore" the compelling interest test.(122) The Arizona, Florida, and Rhode Island statutes, as well as the vetoed New Mexico bill, are similarly entitled the "Religious Freedom Restoration Act," although they make no reference to Smith as the culprit triggering the need for restoration.(123)

The religious freedom statutes passed in Connecticut and Texas as well as the vetoed California bill appropriately make no reference in their title or text to restoration or to the Supreme Court's decision in Smith.(124) Alluding to Smith or restoration contributes little if anything to the meaning of the state religious freedom act and invites an attack on the constitutionality of this act similar to that lodged in Boerne. Accordingly, drafters of state religious liberty acts should take pains to purge all mention of Smith or restoration from the text and history of the legislation.

3. State Religious Freedom Acts Should Not Incorporate Pre-Smith Free Exercise Cases.

Many of the state religious freedom acts incorporate pre-Smith decisions of the United States Supreme Court into the compelling interest test established by the statute. These provisions are seriously flawed in three ways. First, incorporating pre-Smith decisions renders the state religious freedom act vulnerable to the same constitutional attack that buried RFRA. Second, adopting pre-Smith case law does not resolve under what circumstances prevention of discrimination is a compelling governmental interest that will defeat claims to religious exemption under the act. Third, grafting the decisions of the Supreme Court that existed before Smith creates ambiguity as to the burden that government must bear to justify infringement of the free exercise of religion by prisoners.

a. Incorporating Pre-Smith Cases May Subject State Religious Freedom Acts to a Boerne Attack

Many of the state religious freedom acts may be accused of being linked to the Fourteenth Amendment or to an attempt to override the Supreme Court's decision in Smith by their incorporation of the Court's pre-Smith decisions in the text of the statute. Congress' constitutionally-flawed attempt to repeal Smith in RFRA was manifested by its purpose, expressed on the face of the statute, to resurrect the compelling interest test "set forth in Sherbert v. Verner and Wisconsin v. Yoder."(125) Five of the enacted state religious freedom acts likewise prescribe these two pre-Smith Supreme Court decisions as defining the standard of proof that government must meet to sustain a burden on religion. The worst offenders, Illinois and South Carolina, incorporate verbatim the language from RFRA in their religious freedom restoration acts.(126) The Arizona and Idaho Acts include the finding that "[t]he compelling interest test, as set forth in the federal cases of Wisconsin v. Yoder and Sherbert v. Verner, is a workable test for striking sensible balances between religious liberty and competing governmental interests."(127) The Florida Act, while not citing directly to Yoder or Sherbert, refers instead to "certain federal court rulings" as promulgating the compelling interest test that the legislature finds suitable for balancing religious liberty and governmental interests.(128) The explicit reference to pre-Smith cases may generate accusations that like the United States Congress, the state legislature is unconstitutionally attempting to substitute its construction of the Free Exercise Clause for that of the United States Supreme Court.

At the opposite extreme, without citation either to specific Supreme Court cases or to federal law in general, both the Connecticut and Rhode Island religious liberty acts, as well as the vetoed New Mexico statute, require government to prove a compelling interest and no less restrictive alternative to maintain limitations on religious liberty imposed by neutral rules of general applicability.(129) Redacting all references to Yoder, Sherbert, and pre-Smith decisions of the Supreme Court certainly is useful in sheltering state religious freedom acts from charges that the legislature is usurping the United States Supreme Court's power to interpret the Federal Constitution. On the other hand, the statutes are as a consequence devoid of any definition of the compelling interest/no less restrictive alternatives test that government must satisfy to support inadvertent burdens on free exercise.(130)

Two states attempted to offer guidance as to what government interests are sufficiently compelling to justify burdens on religion without directly incorporating pre-Smith decisions of the Supreme Court into the legislation. The Texas Religious Freedom Act states: "In determining whether an interest is a compelling governmental interest ..., a court shall give weight to the interpretation of compelling interest in federal case law relating to the free exercise of religion clause of the First Amendment of the United States Constitution."(131) The vetoed California Religious Freedom Protection Act likewise offered more elaborate instruction as to the meaning of "compelling" without adopting the holdings in Sherbert and Yoder. In its findings, the legislature declared as follows:

   The compelling governmental interest test in the Religious Freedom
   Protection Act, as added by this act, has been used repeatedly in case law
   relating to religious liberty and other fundamental rights. It is expected
   that in applying this standard in cases brought under the Religious Freedom
   Protection Act, courts will look to that case law, including decisions
   construing the federal Religious Freedom Restoration Act (42 U.S.C.
   [[sections]] 2000bb et seq.). The Religious Freedom Protection Act is not
   intended to codify or reject the holding or reasoning of any particular
   case, including cases construing the federal Religious Freedom Restoration
   Act or any other federal or state statute. However, the legislature
   respects the role that persuasive authority and precedent play in the legal
   system and realizes that courts are influenced in deciding cases by
   decisions that apply the same standard to similar facts.(132)

While commendable in their aim, the Texas and California acts risk underprotecting religion. Courts applying the acts are obliged to "give weight to" or "respect[] the role of" federal precedents holding that governmental interests proffered in a particular case are not compelling; notwithstanding these holdings, courts remain free to accept the same government interests as compelling for purposes of the state religious freedom act. Accordingly, a court partial to the policy sentiment underlying the Supreme Court's decision in Smith could approve burdens on minority faiths by deeming compelling a broad array of governmental interests that federal courts had held were not compelling.(133)

Perhaps stricter guidance could be given to the courts interpreting the state religious freedom act while at the same time distancing the statute from the infirmities that plagued RFRA if the legislature specified the interests that are and are not compelling.(134) The vetoed California Religious Freedom Protection Act attempted a half-hearted and ambiguous codification of what interests it considered to be compelling. In its findings, the legislature specified that "[i]n certain circumstances, courts have found health, safety, antidiscrimination, and other concerns to constitute compelling governmental interests."(135) The General Assembly offered further findings concerning how the act was to balance governmental interests in the health, welfare, and safety of children,(136) in maintaining the security and safety of correctional facilities,(137) and in public safety, peace, order, and welfare embodied in criminal statutes.(138)

A recent proposal to amend the Illinois Religious Freedom Restoration Act contains a more conclusive definition of compelling governmental interest. The bill provides:

   "Compelling governmental interest" includes but is not limited to
   protecting the public health, safety and welfare; promoting the efficient
   and effective administration of policies, projects and programs, the use of
   public property, or the enforcement of laws; protecting the legal and civil
   rights of all persons; preserving public resources; preserving the
   character of communities and neighborhoods; and protecting property
   values.(139)

Although constructing a comprehensive definition for the compelling interest test may be a worthy goal, state legislatures looking to maximize protection for religious rights of minority faiths should not mirror this Illinois proposal. While commendable in its ambition, the Illinois definition of "compelling" is flawed in its execution.

First, the proposed Illinois definition is rife with ambiguity that could gut the guarantees of liberty codified by the Religious Freedom Act. For example, the government's interest in preserving public resources could be read narrowly to include areas of environmental concern, or it could be construed broadly to include welfare benefits and other public funds. In addition, the definition provides no limitations on what interests could be subsumed within the category of public health, safety, and welfare. Liberally construed, the Illinois definition endorses an unbounded range of interests as compelling, allowing almost any government burden on religious exercise to survive constitutional attack. Thus, Illinois' comprehensive definition may in effect advance, rather than restrict, the government's ability to discriminate on the basis of religion.

Second, if interpreted in its broadest sense, the Illinois definition labels as compelling those governmental interests that landmark United States Supreme Court Free Exercise decisions have held are not compelling.(140) While the Illinois legislature contends in its proposed definition that preserving public resources is a compelling state interest, the Supreme Court consistently has held that the protection of welfare funds against fraud and overpayment is not compelling so as to warrant infringement of an individual's free exercise rights.(141)

In Sherbert v. Verner,(142) the case most prominently cited in state religious freedom acts for its interpretation of the compelling interest test, a Sabbatarian was denied unemployment compensation benefits because she refused to work on Saturday, the day of her Sabbath.(143) Because Sherbert's disqualification from public benefits ultimately forced her to choose between fidelity to her religious beliefs and the cessation of her employment, the Court found that the state had imposed a substantial burden on Sherbert's free exercise rights.(144) To justify this infringement, the state maintained that allowing religious exemptions would lead to the filing of fraudulent claims, which would in turn dilute the unemployment compensation fund.(145) The Court observed, however, that the likelihood of feigned religious objections hypothesized by the state was unsubstantiated by the record, which indicated that only one other Sabbatarian had failed to find a job which did not require work on Saturday.(146) Finding that the government's interest in protecting its welfare funds was not compelling, the Court held that the state could not constitutionally deny unemployment benefits to Sherbert.(147)

In Thomas v. Review Board of the Indiana Employment Security Division,(148) the Court again refused to hold that the interest in protecting welfare funds outweighed the burden placed on an individual's free exercise of religion. In Thomas, a Jehovah's Witness was denied unemployment compensation benefits after he terminated his job because his religious beliefs forbade his participation in the production of armaments.(149) Employing the same analysis used in Sherbert, the Court concluded that the state's interest in preserving welfare dollars was not "sufficiently compelling to justify the burden upon Thomas' religious liberty" and awarded Thomas benefits.(150) In support of this conclusion, the Court observed that there was no evidence in the record to indicate that the number of people who hold religious beliefs that would cause them to leave their jobs was large enough to seriously affect unemployment, much less create widespread unemployment.(151)

Both Thomas and Sherbert illustrate that the government's interest in protecting its welfare funds is not compelling absent sufficient evidence that the accommodation of religious exemptions would threaten the viability of the welfare program. Consequently, state religious liberty acts should not include the preservation of public resources as a government interest that by its mere assertion is compelling.

Illinois's inclusion of program efficiency and administrative effectiveness as compelling government interests also contradicts settled Supreme Court doctrine. While no free exercise case has dealt directly with this issue, the Supreme Court, as well as some lower courts, have held administrative efficiency to be an insufficient reason to justify abridgement of other fundamental liberties.(152) Justice Brennan suggested in his dissenting opinion in Braunfeld v. Brown(153) that the impairment of administrative convenience is not a compelling government interest that may be relied upon to constitutionalize deprivations of religious liberty.(154) This notion finds further support in Sherbert, where the Court rejected the government's assertion that it had a compelling interest in preventing the disruption of employers scheduling practices.(155) Because the Court has held that administrative efficiency is not a compelling government interest, state religious freedom acts should exclude administrative efficiency from the catalog of interests labeled compelling under the act.

Not only does the Illinois definition mistakenly include interests that are not compelling; it omits one important interest that the Supreme Court always has deemed compelling--government's interest in administering tax programs.(156) In United States v. Lee,(157) the Supreme Court held that there is a compelling government interest in assuring mandatory and continuous participation in and contribution to the social security system,(158) In rejecting the Amish taxpayer's claim that the Free Exercise Clause commands exemption from social security tax obligations, the Court found that "the tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief."(159) Because granting tax exemptions would compromise the integrity and fairness of the tax system, the Court held that the social security tax must be uniformly applicable to citizens of all faiths.(160) Accordingly, state legislatures should acknowledge the protection of tax programs as a compelling state interest when drafting their religious freedom statutes.

While defining what interests are compelling may be a laudable goal, there are some government interests that resist pigeonholing. Given that the courts' rulings on the compelling nature of the government's interest in education and public welfare are so dependent on the facts of the particular case, it would be difficult to uniformly include or exclude these interests in any definition of "compelling."

The courts' education decisions have been highly controlled by the facts of each case. In Wisconsin v. Yoder,(161) the Supreme Court held that the government's interest in establishing and maintaining an educational system for its citizens was not sufficiently compelling to force the Amish to send their children to school beyond the eighth grade.(162) In Yoder, the children had already learned basic reading, writing, and mathematics and would continue receiving informal vocational education from their parents.(163) Under these circumstances, the Court determined that accommodating the Amish religious objections by forgoing one or two additional years of compulsory education would not impair the physical or mental health of the children.(164) The Court was quick to emphasize, however, that because of the distinctive nature of the facts in most educational disputes, religious exemptions should be handled on a case-by-case basis:

   [C]ourts are not school boards or legislatures, and are ill-equipped to
   determine the "necessity" of discrete aspects of a State's program of
   compulsory education. This should suggest that courts must move with great
   circumspection in performing the sensitive and delicate task of weighing a
   State's legitimate social concern when faced with religious claims for
   exemption from generally applicable educational requirements.(165)

For these reasons, the Yoder Court limited its holding to situations where a religious sect has proven that high school attendance was contrary to their faith and that there were adequate alternative modes of vocational education available to their children.(166)

Where the unique circumstances from Yoder are lacking, some lower courts have reached a different conclusion.(167) For example, in Fleischfresser v. Directors of School District 200,(168) parents claimed that an elementary school's supplemental reading program, which included works of fantasy and make-believe, prevented them from meeting their religious obligation to teach specific Christian values to their children.(169) The court determined, however, that the program was designed to teach those skills of reading, creativity, and imagination that are fundamental to children of such a young age.(170) Unlike the children in Yoder then, these elementary school children had yet to undergo the basic instruction necessary for modern life. Therefore, the court held that the government's interest in providing a well-rounded education was sufficient to override the burden on the parents' free exercise of their religion.(171)

In comparing Yoder and Fleischfresser, it becomes apparent that a minor change in the facts can drastically affect the outcome of a case. In one instance, a child's education may be a compelling concern, while in another instance, it is not. Thus a state legislature that wishes to comprehensively define what interests are compelling in its religious freedom act cannot uniformly include or exclude education from that definition.

Other aspects of public welfare that the Supreme Court has addressed under the compelling interest test pose further difficulties in crafting a fixed definition of "compelling."(172) In some instances, the Court has held that the state's interest in promoting the general welfare trumps the individual's religious beliefs. For example, in Reynolds v. United States,(173) the Court held that criminal laws against polygamy could be constitutionally applied to those whose religion commanded the practice.(174) Because the very sanctity of marriage and family was threatened, the Court concluded that the government had a compelling interest in safeguarding the nation from immorality.(175) The Court held in Prince v. Massachusetts(176) that the government's interest in the health and well-being of children justified a statutory ban on the public sale of religious literature by minor members of the Jehovah's Witness.(177) In Braunfeld v. Brown,(178) an Orthodox Jew claimed that a state Sunday closing law burdened persons whose religious tenets compelled them to refrain from work on other days.(179) The Court upheld the statute, however, finding that the allowance of exemptions would undermine the state's compelling interest in providing one uniform day of rest for all its workers.(180) The Court's opinion in each of these cases supports the proposition that "legislative power ... may reach people's actions when they are found to be in violation of important social duties or subversive of good order, even when the actions are demanded by one's religion."(181)

In contrast, there have been many instances where the Supreme Court has refused to permit the infringement of an individual's religious rights even where the state claimed an interest in protecting public health, welfare, or safety. In West Virginia State Board of Education v. Barnette,(182) Jehovah's Witnesses were expelled from school for refusing to comply with a West Virginia regulation that required all public school children to salute the American flag.(183) To justify the statute, the state proffered a compelling interest in bolstering national unity and citizenship among its youth.(184) The Court, however, enjoined enforcement of the statute, finding the regulations relatively trivial to the welfare of the nation.(185) Similarly, in Torcaso v. Watkins,(186) the state attempted to ensure the veracity and trustworthiness of notaries public, and in part the security of the Nation, by requiring all appointed officials to declare a belief in God.(187) The Court invalidated the religious test requirement, holding that the asserted state interest was not compelling enough to force a person to profess a belief or disbelief in any religion.(188)

As these additional cases demonstrate, the protection of public welfare cannot universally be included in or excluded from any comprehensive definition of the compelling interest test.(189) Rather than uniformly declaring whether the interest in protecting public health, safety, and welfare is compelling, the Court has examined the precise facts on a case-by-case basis. With the assessment of the strength of the governmental interest in public welfare so fact-determinative, it is improbable that a definition of "compelling" could be drafted with enough specificity to properly address all possible scenarios.

While the Illinois legislature is to be commended for attempting to define the compelling interest test, there are obvious flaws in its approach. The overbreadth, contradictions, and inconsistencies of the proposed definition would work to undermine the goal of providing a more protective statutory remedy for minority faiths. More specifically, the all-encompassing definition of what interests are compelling in essence legislates the Smith Court's rational basis test, exempting a religious objector from a rule of general applicability only where no governmental interest could be imagined to support the requirement.

Under closer analysis, there does not seem to be a simple way of defining the compelling interest test.(190) The inability to craft a comprehensive interest of which interests are compelling, however, should not induce state legislatures to mimic the United States Congress's incorporation of pre-Smith case law. For to do so invites the claim that the state legislature is impermissibly attempting to construe the Free Exercise Clause contrary to the interpretation mandated by the United States Supreme Court. Perhaps the instruction of the Texas and California legislatures to treat Supreme Court decisions as persuasive authority is the best solution to the Hobson's choice of on the one hand offering no guidance to the state courts charged with interpreting the religious freedom act, or on the other hand leaving the act vulnerable to a constitutional challenge by adopting pre-Smith cases as the governing standard. Beyond this general instruction, however, state legislatures are well-advised to offer more concrete advice as to how the compelling interest test applies in two discrete situations--enforcement of statutes barring discrimination and prisoner claims.

b. State Religious Freedom Acts Should Prescribe under What Circumstances Prevention of Discrimination Will Be Deemed to Be a Compelling Governmental Interest.

Although it may be impossible to draft a comprehensive definition of what governmental interests will and will not be deemed compelling, the state religious freedom act should specifically address one state interest--the prevention of discrimination. The lower federal courts have divided over when the government's interest in eradicating discrimination is sufficiently compelling to justify burdens on religion. Rather than incorporate these unsettled precedents, the state religious freedom act should make explicit its intended effect on extant anti-discrimination laws.

In two cases, the United States Supreme Court has found the government's interest in eliminating discrimination to be compelling. In Bob Jones University v. United States,(191) the Court upheld the Internal Revenue Service ruling that denied tax-exempt status to private schools with racially discriminatory admissions policies. The Court rejected the claim that the ruling violated the Free Exercise Clause of the United States Constitution when applied to schools whose discrimination is a product of sincerely held religious beliefs. The government's interest in eliminating the vestiges of race discrimination in education, the Court found, was compelling and could not be achieved by less restrictive means.(192)

The Court also has held that prevention of gender discrimination is a compelling interest sufficient to justify restrictions on freedom of expression. In Roberts v. United States Jaycees,(193) the Court determined that the Minnesota Human Rights Act did not violate the First and Fourteenth Amendments to the United States Constitution when it required the Jaycees to admit women as full voting members. The Court conceded that the Act infringed upon the Jaycees' collective freedom to speak and to petition the government for the redress of grievances. This right to associate for expressive purposes, however, is not absolute; government may limit the freedom if it proffers a compelling interest that cannot be achieved by alternatives less restrictive of association.(194) The Court then held that the aims of sweeping away discrimination against women and assuring equal access to publicly available goods and services were "compelling state interests of the highest order,"(195) and could not be satisfied by means less restrictive than requiring the Jaycees to admit women as full voting members.(196)

The lower courts, however, have not consistently synthesized Bob Jones and Roberts to dictate that the government's interest in eradicating discrimination is universally compelling. To the contrary, in Thomas v. Anchorage Equal Rights Commission,(197) the Court of Appeals for the Ninth Circuit held that laws adopted by the State of Alaska and City of Anchorage to prevent discrimination in rental housing could not constitutionally be applied to landlords whose Christian religious beliefs prevented them from renting to unmarried cohabitants.(198) In assessing whether the anti-discrimination laws invaded free exercise under the First Amendment, the court utilized strict scrutiny because it found that the landlords asserted a hybrid rights claim;(199) the landlords not only averred that they had been deprived of their right to freedom of religion but also raised colorable claims that the laws infringed their Fifth Amendment right to exclude others from their property as well as their First Amendment rights to free speech.

The court of appeals ruled that the government's interest in outlawing discrimination on the basis of marital status was not compelling and thus the landlords were entitled to an exemption from the anti-discrimination laws. The court interpreted Bob Jones and Roberts as holding the states' interest in eradicating discrimination to be compelling only where there is a "firm national policy" against the discrimination at issue.(200) Unlike race and gender discrimination, the court reasoned, there is no evidence of a national policy against discrimination on the basis of marital status. Neither the Supreme Court nor any lower federal court utilized heightened scrutiny in assessing claims of marital status discrimination under the Equal Protection Clause of the United States Constitution.(201) Furthermore, the Supreme Court had declined to find a substantive due process right of unrelated persons to live together.(202) Rather than evidence a legislative policy against marital-status discrimination, the court of appeals reasoned, the federal Fair Housing Act as well as other federal civil rights laws do not include marital status among the prohibited categories of discrimination.(203) Because the government's goal of barring discrimination against the unmarried was not compelling, the application of the state and local anti-discrimination ordinances to religious objectors violated the Free Exercise Clause of the United States Constitution.(204)

The potential for courts to subordinate the state's interest in eradicating discrimination to religious exercise may not be limited to marital status. If the Thomas court's analysis is followed, prevention of discrimination will be deemed not compelling whenever there is no "firm national policy" protecting the particular class.(205) If the courts adopt the Thomas instruction to discern national policy by examining whether heightened scrutiny is afforded under the Equal Protection Clause of the United States Constitution, discrimination on the basis of sexual preference may not be deemed compelling.(206) In withdrawing its support for the proposed federal Religious Liberty Protection Act of 1999,(207) the American Civil Liberties Union observed that "[b]ecause sexual orientation, marital status, disability, and other newly protected classes currently do not receive the same level of scrutiny as race and sex ... it may be more difficult to persuade all courts that the governmental interest in preventing discrimination on these grounds is compelling."(208) Representatives Berman, Nadler, Lee, and Delahunt filed a dissenting view to the House report on RLPA because as drafted, RLPA "could be used by some as a sword to attack the rights of many Americans, including unmarried couples, single parents, lesbians and gays."(209)

Most of the state religious freedom acts that have been enacted are silent as to the interface between the compelling interest test and state or local anti-discrimination laws. The failure to specify under what circumstances the prevention of discrimination is a compelling interest invites unpredictable results as future courts adjudicate religious-based claims to exemption from state civil rights laws proscribing discrimination.(210) Given the unsettled state of the law as to whether prevention of discrimination on grounds other than race or gender is a compelling governmental interest, the ambiguity is heightened rather than resolved where the legislature simply instructs that its intent is to incorporate pre-Smith precedents.

There are several ways in which the legislature may express its intended resolution of the conflict between religious liberty and the state's interest in eliminating discrimination. First, if the legislature wishes blanket insurance that the rights of all persons who are protected by the state's anti-discrimination laws take primacy over persons whose religion dictates that they be entitled to discriminate, the act can be drafted to make clear that the religious freedom act does not affect rights under the state's civil rights laws. For example, the vetoed California Religious Freedom Protection Act provided, "Nothing in this act shall be construed to alter the existing balance between religious liberty claims and other civil and constitutional rights. No inference should be drawn that ... the Legislature intends to further discrimination."(211)

Alternatively, the legislature may prefer to tailor the precise circumstances under which the anti-discrimination laws do and do not trump rights newly created by the state religious freedom act. The Texas Religious Freedom Act includes a general provision that the legislation "does not establish or eliminate a defense to a civil action or criminal prosecution under a federal or state civil rights law."(212) The Act then prescribes the following exception to the primacy of state civil rights laws:

   [The Texas Religious Freedom Act] is fully applicable to claims regarding
   the employment, education, or volunteering of those who perform duties,
   such as spreading or teaching faith, performing devotional services, or
   internal governance, for a religious organization. For the purposes of this
   subsection, an organization is a religious organization if:

   (1) the organization's primary purpose and function are religious, it is a
   religious school organized primarily for religious and educational
   purposes, or it is a religious charity organized primarily for religious
   and charitable purposes; and

   (2) it does not engage in activities that would disqualify it from tax
   exempt status under Section 501(c)(3), Internal Revenue Code of 1986, as it
   existed on August 30, 1999.(213)

Representative Nadler similarly proposed an amendment to RLPA that limited the class of persons who could invoke the Act's protection to secure dispensation from anti-discrimination laws. Religious exemptions from laws prohibiting discrimination in housing could be granted only to small landlords exempt under the federal Fair Housing Act.(214) RLPA would sanction religiously-founded discrimination in employment only where the business employs five or fewer individuals or is a church, religious school, or other religious institution.(215) The House rejected the Nadler amendment by a vote of 234 to 190.(216)

Regardless of what particular balance between prevention of discrimination and religious liberty the legislature wishes to craft, the blind adoption of pre-Smith case law cannot be relied upon to achieve the desired weighing of competing interests.(217)

c. Incorporating Pre-Smith Cases Creates Ambiguity as to the Standard to Be Applied to Prisoner Cases

Apart from the constitutional problems posed and the unknown effect on discrimination created if a state religious freedom act incorporates pre-Smith cases, referencing pre-Smith decisions of the federal courts also renders the state act ambiguous when applied to prisoner free exercise claims. To avoid such ambiguity, the statute instead should define the precise standard that the legislature intends to apply to claimed invasions of religious liberty of persons incarcerated in state and local penal institutions.

In a pair of cases decided three years before Smith, the Supreme Court confirmed that the compelling interest/no less restrictive alternatives test was not to apply to incursions on federal constitutional rights of inmates.(218) In Turner v. Safley,(219) the Court defined the general standard governing constitutional claims of prison inmates. Turner arose out of challenges to Missouri Division of Corrections regulations that limited correspondence between prisoners and restricted inmate marriages. The district court, applying strict scrutiny, struck down the regulations because they were not the least restrictive means of accomplishing the government's interest in security and rehabilitation.(220) The court of appeals affirmed the lower court's application of strict scrutiny to the claims as well as its finding that the government had failed to satisfy the least restrictive alternative prong of the inquiry.(221)

The Supreme Court reversed, ruling that the lower courts had used the wrong standard in assessing whether the regulations violated the inmates' constitutional rights. The Court held that under its precedents dating back to 1974, a prison regulation does not offend the federal Constitution if the regulation is "reasonably related to legitimate penological interests."(222) The Court reasoned that strict scrutiny would unduly hinder prison administrators' flexibility and innovation in addressing security and other problems endemic to managing a correctional institution. Combing every decision to determine whether there are less restrictive alternatives to meeting the prison's needs, the Court asserted, would "`unnecessarily perpetuate the involvement of the federal courts in affairs of prison administration.'"(223)

Eight days after it issued its decision in Turner, the Court in O'Lone v. Estate of Shabazz(224) held that alleged deprivations of an inmate's free exercise of religion likewise would not be evaluated under the compelling interest/no less restrictive alternatives standard. Islamic prisoners in the Leesburg State Prison challenged the policy that prohibited inmates assigned to outside work details from returning to the prison during the day except in the event of an emergency. The effect of the policy was to preclude Muslims ordered to work outside the prison from attending the weekly Muslim congregational service known as Jumu'ah, which in accordance with the Koran was required to be held after the sun reached its zenith but before the afternoon prayer.(225)

The district court concluded that the policy did not violate the Constitution because the ban on returning to the prison from work detail "plausibly advanced" the interest of security, order, and rehabilitation.(226) The United States Court of Appeals for the Third Circuit reversed, holding that the district court had applied an unduly lenient standard in evaluating the government's justification for limiting the prisoners' religious rites. The court of appeals remanded the case to the district court to consider whether the state could demonstrate that the regulations were

   intended to serve, and do serve, the important penological goal of
   security, and that no reasonable method exists by which [prisoners']
   religious rights can be accommodated without creating bona fide security
   problems.... Where it is found that reasonable methods of accommodation can
   be adopted without sacrificing either the state's interest in security or
   the prisoners' interest in freely exercising their religious rights, the
   state's refusal to allow the observation of a central religious practice
   cannot be justified and violates the prisoner's first amendment
   rights.(227)

The Supreme Court held that the court of appeals had erred by mandating more exacting scrutiny than the test the Court adopted in Turner. The Court ruled that burdens on an inmate's religious liberty do not trammel federal constitutional rights if the limitation is "`reasonably related to legitimate penological interests.'"(228) This more deferential test applies even where a prison regulation has the effect not only of limiting a religious practice, but of prohibiting that practice.(229) Under the appropriate test, the Court concluded, the policies challenged in O'Lone passed constitutional muster.

State religious freedom acts that, through findings, statement of purpose, or other means incorporate pre-Smith case law while promulgating the compelling interest test are ambiguous when applied to prisoner claims. If the goal of the legislature is to mandate the compelling interest/no less restrictive alternatives test to justify limitations on religious liberty of prisoners, the legislature must intend that courts utilize a more rigorous level of scrutiny than prescribed by the Supreme Court's pre-Smith prisoner free exercise cases. On the other hand, if the intent of the legislature is not to disturb the Turner-O'Lone standard of review for prison cases, but to restore strict scrutiny for burdens on non-prisoners created by rules of general applicability, the establishment of an across-the-board compelling interest/no less restrictive alternatives test improperly posits a higher level of scrutiny than is intended to be applied to prisoner cases.

Congress' failure to particularize the standard that was to govern prisoner suits under RFRA spawned significant litigation over the issue. The courts ultimately concluded that Congress meant to expand the religious liberty of prisoners and to apply the compelling interest test to prisoner claims under RFRA.(230) The courts' analysis was aided by the fact that even though the language of the statute did not specifically state whether RFRA was to apply to prisons,(231) the legislative history made plain that Congress intended to resurrect the compelling interest test for prisoner claims. The Senate Report expressly noted that the intent of the legislation was "to restore the traditional protection afforded to prisoners to observe their religions which was weakened by the decision in O'Lone v. Estate of Shabazz."(232) The House Committee likewise accepted that RFRA would govern prisoner claims.(233) Furthermore, Congress debated and rejected a proposed Senate amendment that would have exempted inmate claims from RFRA.(234)

Regrettably most of the state religious freedom acts incorporate pre-Smith cases without resolving the ambiguity over whether the legislature intends to restore the compelling interest test abandoned for prisoner claims in Turner and O'Lone.(235) To preempt litigation over whether state religious freedom acts mandate the compelling interest test for inmate claims, state legislatures are well advised to answer the issue in the text of the statute.

The dispute over whether a state religious freedom act endorses the compelling interest/no less restrictive alternatives test for inmate suits may be resolved in one of three ways. First, the state may elect to wholly exempt prisoners from the ambit of the act, thus affording no additional rights to prisoners as a matter of state statutory law. For example, the Illinois Religious Freedom Restoration Act expressly "does not apply to any person who is incarcerated in a penal institution or who is in custody of an employee of a penal institution."(236) Alternatively, the act may accomplish the same result by prescribing the deferential O'Lone standard to govern prisoner free exercise claims. The proposed amendment to the Connecticut Religious Freedom Act provides that "[t]he Department of Correction may burden the exercise of religion of a person in the custody of the Commissioner of Correction unless such person demonstrates that the application of the burden to such person bears no reasonable relationship to the furtherance of a legitimate penological interest."(237)

Secondly, the statute may make clear that the compelling interest/no less restrictive alternatives test is to apply equally to claims brought by prisoners and non-prisoners. The South Carolina Religious Freedom Act elaborates on how the compelling interest/no less restrictive alternatives test is to be applied to state and local prisons:

   (A) A state or local correctional facility's regulation must be considered
   "in furtherance of a compelling state interest" if the facility
   demonstrates that the religious activity:

   (1) sought to be engaged by a prisoner is presumptively dangerous to the
   health or safety of that prisoner; or

   (2) poses a direct threat to the health, safety, or security of other
   prisoners, correctional staff, or the public;

   (B) A state or local correctional facility regulation may not be considered
   the "least restrictive means" of furthering a compelling state interest if
   a reasonable accommodation can be made to protect the safety or security of
   prisoners, correctional staff, or the public.(238)

Under this approach, burdens on religious liberty of prisoners will be subjected to strict scrutiny if challenged under the state religious freedom act while the more deferential standard will be employed to assess alleged infringements of religious liberty brought under the First Amendment of the United States Constitution.

Third, the state may opt to define a standard for prison cases that is less rigorous than strict scrutiny but more demanding than the reasonableness standard currently applied to prisoner challenges based upon the Free Exercise Clause of the First Amendment. For example, the Texas Religious Freedom Act provides:

   [A]n ordinance, rule, order, decision, or practice that applies to a person
   in the custody of a municipal or county jail or other correctional facility
   operated by or under a contract with a county or municipality is presumed
   to be in furtherance of a compelling governmental interest and the least
   restrictive means of furthering that interest. The presumption may be
   rebutted.(239)

The choice of standard is a political judgment based upon the preferred balance between religious liberty, penological objectives, and the degree to which the legislature desires the courts to oversee or to defer to the judgment of prison administrators.(240) The failure to unambiguously express the will of the legislature as to what level of scrutiny is to be applied to invasions of religious freedom of prison inmates, however, will generate unnecessary litigation and may lead the courts to construe the religious freedom act in a way that the legislature did not intend.

4. State Religious Freedom Acts Should Not Prescribe How the State Constitution Is to Be Construed.

Beyond taking pains to avoid trammeling upon the province of the United States Supreme Court, state legislatures also must avoid infringements upon the power of the state judiciary that statutory provisions declaring how courts are to interpret the state constitution may cause. The Connecticut Act Concerning Religious Freedom unwisely purports "to reiterate the compelling interest test for freedom of religion claims under the state constitution."(241) The Act bars the state and its subdivisions from burdening "a person's exercise of religion under section 3 of article first of the state constitution, even if the burden results from a rule of general applicability" unless the government demonstrates that the burden imposed is the least restrictive means of furthering a compelling governmental interest.(242)

State religious freedom statutes that dictate that the compelling interest test be used to evaluate burdens on religious rights under the state constitution spawn an unnecessary constitutional conflict between the legislative and judicial branches of the state government. At least one court has repudiated the legislature's power to mandate by statute how the courts are to construe the state constitution.(243) In Juhnkins v. Branstad,(244) the Iowa legislature passed a bill that defined the phrase "appropriation bill" for purposes of construing the state constitutional provision regarding the governor's veto power. Much as the United States Supreme Court castigated Congress for attempting to tread upon the powers of the federal judicial branch, the Iowa Supreme Court condemned the Iowa legislature's arrogation of the state court's power to interpret the state constitution:

   Whatever purposes the legislative definition of "appropriation bill" may
   serve, it does not settle the constitutional question. In this case,
   determination of the scope of the governor's authority granted by Article
   III, section 16, as amended, will require a decision whether the bill
   involved here was an "appropriation bill" as that term is used in our
   constitution. This determination, notwithstanding the legislative
   definition, is for the courts.(245)

Thus a state religious freedom act that instructs courts to apply strict scrutiny to religious claims under the state constitution risks suffering the same fate as Congress's mandate in RFRA.(246)

Rather than insisting upon a construction of the state constitution, a state legislature striving to protect minority faiths should disassociate its newly-created statutory rights from independent rights of religious liberty that may be guaranteed by the state constitution. Several of the state religious liberty acts include provisions clarifying that the legislation does not pretend to guide interpretation of the establishment of religion aspects of the state constitution.(247) Only Texas, however, created the same institutional separation between its religious freedom act and free exercise provisions of the state constitution. The Texas legislature specified that its religious freedom act "may not be construed to affect or interpret [the religious liberty provisions of] Article I, Texas Constitution."(248) Every state religious protection act should include a comparable provision to ensure that the legislation is not plagued by an unconstitutional incursion on the power of the state judiciary.

5. State Religious Freedom Acts Do Not Contravene the Establishment Clause

Beyond the two constitutional defects that haunted RFRA, there is an additional constitutional hurdle that state religious freedom acts must surmount. In his concurring opinion in Boerne, Justice Stevens offered that RFRA violated the First Amendment's Establishment Clause(249) by codifying a "governmental preference for religion."(250) The Court's precedents, however, offer ample support for accommodation of religious practices that do not offend the Establishment Clause. Careful drafting of state religious freedom acts may further shield the legislation from constitutional attack by making plain that the act does not authorize exemptions from general laws in circumstances that would contravene the Establishment Clause.

Although the Court's Establishment Clause jurisprudence is no model of consistency,(251) the Court has been unwavering in proclaiming that the attitude of the government toward religion must be one of neutrality in order for a regulation to pass constitutional muster.(252) Only where the government has exhibited hostility toward a specific religious group or has favored or promoted religion have the courts been intolerant.(253) More than fifty years ago, the Supreme Court articulated its view that the Establishment Clause precludes the federal government from passing laws "which aid one religion, which aid all religions, or prefer one religion over another."(254)

At no time, however, have the courts indicated that statutes that give special consideration to religious groups are per se invalid.(255) As the Court stated in Zorach v. Clauson:(256)

   Government may not finance religious groups nor undertake religious
   instruction nor blend secular and sectarian education nor use secular
   institutions to force one or some religion on any person. But we find no
   constitutional requirement which makes it necessary for government to be
   hostile to religion and to throw its weight against efforts to widen the
   effective scope of religious influence.(257)

The Supreme Court "has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause."(258) Indeed, religious accommodations are written into the United States Constitution,(259) Congress has enacted federal statutes accommodating religion,(260) and state legislatures have commonly provided exemptions to religious objectors from neutral, generally applicable laws.(261) In at least four decisions, the Court has held that exempting religious organizations from the sweep of neutral laws does not violate the Constitution.(262)

The leading authority supporting the allowance of religious accommodation is the Supreme Court's decision in Corporation of the Presiding Bishop v. Amos.(263) In Amos, a gymnasium employee brought suit against his religious employer after he was discharged for failure to prove membership in the Church of Jesus Christ of Latter-Day Saints.(264) The Church defended its conduct under [sections] 702 of the Civil Rights Act of 1964, which exempts religious organizations from Title VII's prohibition of religious discrimination in employment.(265) In upholding the constitutionality of the exemption under the Establishment Clause, the Court applied the well-known three-pronged test for neutrality enunciated in Lemon v. Kurtzman.(266) Under Lemon, in order to satisfy the Establishment Clause a statute: (1) must have a secular legislative purpose; (2) must have a principal or primary effect that neither advances nor inhibits religion; and (3) must not foster excessive entanglement with religion.(267) Noting that "it is a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions," the Amos Court indicated that Lemon would prevent religious accommodation only where the government itself advances religion through its own activities and influence.(268) As long as the "government acts with the proper purpose of lifting a regulation that burdens the exercise of religion," the Court ruled, there is "no reason to require that the exemption come packaged with benefits to secular entities."(269)

The Supreme Court has supported other laws of accommodation under similar reasoning. In Zorach v. Clauson,(2700 the Court upheld a statutory program that authorized the release of public school children to attend religious classes.(271) Since the program was neither financed through public funds nor held in public classrooms, the Court found no impermissible fostering of religion on the part of the school district.(272) Rather, the Court emphasized that:

   When the state encourages religious instruction or cooperates with
   religious authorities by adjusting the schedule of public events to
   sectarian needs, it follows the best of our traditions. For it then
   respects the religious nature of our people and accommodates the public
   service to their spiritual needs.(273)

While it is true that religion may profit from exemption from a neutral law of general applicability, the Court on numerous occasions has confirmed that a law does not violate the Establishment Clause merely because it has the net result of benefiting religion.(274) The Court has "consistently held that government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated financial benefit."(275) In Everson v. Board of Education,(276) the Court approved the expenditure of tax-raised monies to pay for the bus fares of parochial school children where the same funding was being given to public school pupils, even though the challenged regulation undoubtedly helped children get to church schools.(277) Likewise, in Board of Education v. Allen,(278) the Court permitted the state to loan secular textbooks to all children in accredited schools despite the fact that free books made it more likely that some children would choose to attend a sectarian school.(279) The Court emphasized that no funds or books [were] furnished to parochial schools," and that therefore "the financial benefit [was] to parents and children, not to schools."(280)

Also, in Mueller v. Allen,(281) the Court rejected an Establishment Clause challenge to a law allowing taxpayers to deduct certain educational expenses in computing state income tax, even though a majority of the deductions went to parents whose children attended sectarian schools.(282) Because the provision applied to all parents and the public funds became available to the religious institutions only as a result of the private choices of the individual parents, the Court reasoned this was not the type of direct transmission of assistance forbidden under the Establishment Clause.(283) Following virtually identical reasoning, the Court allowed a blind person to use a state grant to attend a Christian college,(284) and mandated that a school district allow a sign-language interpreter to accompany a deaf child to classes at a Catholic high school.(285) As the reasoning of these cases suggest, a regulation does not offend the Establishment Clause merely because it benefits religion as long as the government aid provided does not result in a direct and substantial advancement of a sectarian enterprise.(286)

While the Court has sustained various accommodations and government aid programs, it never assessed whether RFRA violated the Establishment Clause.(287) At least four courts of appeal, however, sustained the constitutionality of RFRA under the Establishment Clause.(288) In In re Young,(289) a debtor's trustee appealed a federal court's decision denying her recovery of religious tithes, contending that the enforcement of RFRA violated the Establishment Clause.(290) Applying Lemon, the court found that RFRA (1) had a secular purpose, in that it was enacted to protect freedom of religion and did not benefit a particular religious sect, (2) did not advance or inhibit religion by "only protect[ing] individuals from laws which `substantially burden a person's exercise of religion,'" and (3) sought to prevent, rather than foster, excessive government entanglement with religion by limiting the impact of neutral laws on religion.(291) Under virtually identical reasoning, courts have rejected Establishment Clause challenges to RFRA when used to protect a murder suspect's confession to a priest from disclosure(292) and to obtain a building permit to enlarge a church.(293)

There is no question that like RFRA, state religious freedom acts constitute a substantial accommodation to religious institutions and beliefs. The acts, however, do not cross the boundary into an impermissible fostering of religion that is forbidden under the Establishment Clause, but instead maintain the benevolent neutrality that the Supreme Court requires.(294)

Beyond a certain outer limit, accommodation may become an establishment of religion. When a purported accommodation irrebuttably gives preferential treatment to religious commitments without considering the cost to competing secular concerns, the Court has been understandably uneasy. In Thornton v. Caldor,(295) the Supreme Court struck down a statute giving all religious employees the absolute and unqualified right not to work on their chosen Sabbath.(296) The Court found that the statute commanded that "Sabbath religious concerns automatically control over all secular interests at the workplace."(297) Under the statute, the employer could not refuse to accommodate the employee's Sabbath, even where excusing him from working would impose substantial economic burdens on the employer or cause hardship to other employees who were required to work in the stead of the Sabbath worshiper. Because of the "unyielding weighting in favor of Sabbath observers over all other interests,"(298) the Court determined that the law crossed from constitutional neutrality to unconstitutional favoritism.

Some commentators have grasped onto Thornton to argue that all accommodation statutes would violate the Establishment Clause because the acts undeniably privilege religion over other interests in society.(299) This reading of Thornton, however, cannot be reconciled with the substantial Establishment Clause jurisprudence allowing for such accommodation.(300) Furthermore, unlike the statute the Court struck down in Thornton, state religious freedom acts do not confer an unlimited preference to religion over all competing secular interests. Quite to the contrary, where the government has a compelling interest that cannot be satisfied by alternatives less restrictive of the religious practice in issue, concerns of civil society trump the free exercise of religion. In short, state religious freedom acts do not codify "absolute and unqualified" rights of religious exercise that the Thornton Court found violative of the Establishment Clause.(301)

The Court also has invalidated exemptions where the government has directed a subsidy exclusively to religious organizations that is not required by the Free Exercise Clause. In Texas Monthly v. Bullock,(302) the Court declared unconstitutional a statute that singled out for exemption from state sales and use tax periodicals that consisted solely of writings promulgating the teachings of a religious faith.(303) Unlike state religious freedom acts, the tax exemption directly "`provide[d] unjustifiable awards of assistance to religious organizations'" and "`convey[ed] a message of endorsement' to slighted members of the community."(304) The Bullock Court noted further, employing a Lemon-like analysis, that the exemption lacked any secular objective "that would justify its preference along with similar benefits for nonreligious publications or groups" and produced a greater state entanglement with religion than would the denial of an exemption.(305) Under these findings, the Court concluded that a tax exemption that solely targeted religious writings was clearly state sponsorship of religion and thus violated the Establishment Clause.(306)

As these cases suggest, the Establishment Clause does not bar accommodation unless government inalterably exempts religious objectors regardless of the impact on secular interests or supplies direct affirmative assistance to a religious organization or institution. While state religious freedom acts do not on their face transcend these limits, as a drafting precaution, state legislatures should make clear that they do not intend to exceed the bounds of the Establishment Clause in enabling religious persons or organizations to claim exemptions from generally applicable laws. When it enacted RFRA, Congress included the following safety net:

   Nothing in this chapter shall be construed to affect, interpret, or in any
   way address that portion of the First Amendment prohibiting laws respecting
   the establishment of religion (referred to in this section as the
   "Establishment Clause"). Granting government funding, benefits, or
   exemptions, to the extent permissible under the Establishment Clause, shall
   not constitute a violation of this chapter.(307)

Many state religious freedom acts have properly expanded this language to make clear that the act not only is subordinate to the Establishment Clause limits of the United States Constitution, but also is not meant to trump separation of church and state provisions of the applicable state constitution.(308)

In sum, the constitutional problems that impelled the Supreme Court to void RFRA do not inhere in state religious freedom acts. To avoid injecting constitutional faults into state religious liberty acts, the legislature should: 1) affirmatively proclaim that the state is relying upon its police power to protect religious freedom as a matter of state statutory law and is not tampering with the Free Exercise guarantees of the United States Constitution; 2) refrain from characterizing the act as one "restoring" religious liberty; 3) abnegate reference to pre-Smith decisions of the United States Supreme Court; 4) declare that the legislation does not purport to affect or interpret wholly independent and separate rights of religious liberty guaranteed by the state constitution; and 5) state that the act should not be construed to permit exemptions in circumstances that would violate the Establishment Clause of the United States Constitution or any state constitutional counterpart. While these drafting precautions should suffice to vanquish constitutional challenges, in order that the acts fulfill their true promise, state religious freedom statutes must go further to address a variety of issues relating to the civil action necessary to vindicate religious liberty.

D. State Religious Freedom Acts Should Prescribe the Elements of the Prima Facie Case, Defenses, and Remedies Applicable to the Civil Cause of Action

Apart from the previously analyzed constitutional and drafting considerations, state religious liberty acts must resolve several issues relating to the civil cause of action that will be utilized to affirmatively assert rights under the statute. Most of the state religious liberty acts parrot the very general remedial language that Congress adopted when it enacted RFRA.(309) In the section entitled "Judicial Relief," RFRA provides that "A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government."(310) The only other provision concerning the civil cause of action to enforce RFRA is Section 4 of the Act, which amends the Attorney's Fees Award Act of 1976 to authorize an award of reasonable attorney's fees to a plaintiff who prevails in an action to enforce rights created by RFRA.(311)

By providing a "claim in a judicial proceeding" for "appropriate relief," RFRA and its state clones fail to answer several critical questions that arise when parties whose religious exercise has been burdened lodge a civil action against an individual official or governmental entity. The generic language does not resolve what standard of culpability the plaintiff must prove to establish a prima facie case and whether, as a defense, individual officials sued under the act may assert absolute or qualified immunity. The language is equally unhelpful in determining whether a state or local governmental entity may be held vicariously liable for violations of the religious freedom act by governmental employees acting in the scope of their employment or whether the entity may assert any immunity from liability. Finally, the text does not resolve whether punitive damages are embraced within the "appropriate relief" recoverable against the named individual or entity defendant.

All of these issues regarding the prima facie case, defenses, and remedies have arisen when persons filed civil actions to redress violations of rights protected by the Free Exercise Clause of the First and Fourteenth Amendments to the United States Constitution. Like RFRA, the Constitution does not specify the elements of the prima facie case, defenses, and remedies governing a civil action brought to enforce its guarantees. However, plaintiffs may obtain relief for deprivations of their constitutional rights at the hands of state actors by filing an action in federal court under 42 U.S.C. [sections] 1983, which provides in pertinent part:

   Every person who, under color of any statute, ordinance, regulation,
   custom, or usage, of any State or Territory or the District of Columbia,
   subjects, or causes to be subjected, any citizen of the United States or
   other person within the jurisdiction thereof to the deprivation of any
   rights, privileges, or immunities secured by the Constitution and laws,
   shall be liable to the party injured in an action at law, suit in equity,
   or other proper proceeding for redress....(312)

While the language of [sections] 1983 is equally general as RFRA and its state analogs, a body of judicial decisions interpreting [sections] 1983 has largely settled the elements of the cause of action, defenses and available remedies. It is now clear that a state or local official sued under [sections] 1983 may be held individually liable for violations of the Constitution, even where his conduct also contravenes state and local law.(313) To establish a prima facie case under [sections] 1983, the plaintiff does not have to prove any additional culpability beyond violation of the Constitution,(314) although the plaintiff may need to prove a level of culpability to establish a deprivation of the particular constitutional right allegedly invaded.(315) However, the individual state or local official may raise an immunity defense.(316) Whether the immunity is absolute or qualified depends upon the function that the official performs. Government employees who are executing legislative,(317) judicial,(318) and prosecutorial(319) functions are absolutely immune from suit. All other officials engaged in discretionary functions are generously shielded by qualified immunity.(320) Qualified immunity exonerates the officer from damages(321) whenever a) the constitutional right violated was not clearly established, or b) the official did not know and should not have known of the right, or c) the official did not know and should not have known that her actions contravened the right.(322) If found liable, however, the individual officer may be held to pay compensatory damages for any actual harm the plaintiff proves that was suffered(323) as well as punitive damages where the officer is found to have acted in reckless disregard of the plaintiff's constitutional right.(324)

The rules governing entity liability under [sections] 1983 differ depending on whether the defendant is an arm of the local or state government. Under [sections] 1983, state governmental entities may be sued for prospective equitable relief;(325) however, because Congress did not expressly abrogate the states' Eleventh Amendment immunity(326) from suit in federal court, states who violate the Constitution may not be required to pay damages for the harms caused by their unconstitutional actions.(327) Local governmental entities, on the other hand, are not sheltered by the Eleventh Amendment(328) and thus may be sued for both compensatory damages(329) and equitable relief should they invade liberties guaranteed by the Constitution. However, a plaintiff may not recover against a municipality simply by proving that one of its employees violated constitutional norms while acting in the scope of employment; instead, a plaintiff must further prove that the violation was visited pursuant to the governmental entity's policy or custom.(330) If the plaintiff has proven the prima facie case, the local governmental entity may not assert the absolute or qualified immunity of its employee as a defense to damages.(331)

In construing the contours of the civil action authorized by RFRA, the lower federal courts explicitly or implicitly relied upon [sections] 1983 doctrine. Governmental officials sued for violation of RFRA were permitted to assert the same absolute(332) and qualified(333) immunity defenses available in [sections] 1983 actions. Local governmental entities were shielded from liability absent proof of governmental custom or policy.(334) State governmental entities remained immune from actions for damages.(335)

The borrowing of [sections] 1983 case law for actions for violation of RFRA may be well-founded. By its terms, [sections] 1983 not only authorizes a civil action for deprivations of rights protected by the Federal Constitution, but also may be invoked to redress violation of rights enshrined in federal statutes.(336) In many cases, litigants seeking to take advantage of the enhanced protection of religious liberty created by RFRA brought their action for violation of RFRA under [sections] 1983.(337) In such instances, the courts were on sound footing in looking to settled [sections] 1983 doctrine in ascertaining the elements, defenses and remedies available in the cause of action.(338)

While [sections] 1983 may be employed to redress violations of federal statutes, the Act does not provide a cause of action against state and local officials and entities that violate state statutes.(339) Thus, absent a general state civil rights act analogous to [sections] 1983, courts adjudicating claims under state religious liberty statutes will not have at their disposal a body of law that identifies the elements of the prima facie case, defenses, and available remedies in a civil action to enforce the rights created by the state religious liberty act. Rather, the courts will be left only with the text of the religious liberty act to inform the civil action. Hence, it is imperative that state legislatures interested in exerting their constitutional authority to protect religious liberty of minority faiths against burdens imposed by neutral laws of general applicability go beyond the general remedial language of RFRA and detail the contours of the civil cause of action to enforce the statutory right.(340)

V. CONCLUSION

In his 1785 "Memorial and Remonstrance Against Religious Assessments" in Virginia, reprinted as an appendix to Justice Rutledge's dissenting opinion in Everson v. Board of Education,(341) James Madison wrote:

   It is the duty of every man to render to the Creator such homage, and such
   only, as he believes to be acceptable to him. This duty is precedent both
   in order of time and degree of obligation, to the claims of Civil
   Society.... [I]n matters of religion, no man's right is abridged by the
   institution of Civil Society, and that religion is wholly exempt from its
   cognizance.

   Because if religion be exempt from the authority of the Society at large,
   still less can it be subject to that of the Legislative Body. The latter
   are but the creatures and vicegerents of the former.(342)

The United States Supreme Court has looked to the Virginia experience with religious freedom as "particularly relevant in the search for the First Amendment's meaning."343 Consistent with Madison's weighting of competing demands of religion and civil society, the Court's pre-Smith decisions required that government prove a compelling interest and no alternatives less restrictive of religion before upholding a burden on religious exercise. In Smith, however, the Court reversed the ranking, subjugating minority faiths to the wishes of civil society whenever expressed in neutral rules of general applicability.

The Court has thwarted federal legislative efforts to restore the eroded protection of religious liberty. Properly drafted, state religious freedom non-restoration acts offer Virginia and every other state the realization of Madison's vision of the primacy of the individual's relation to his or her Creator.

(1.) See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 523 (1993) ("The principle that government may not enact laws that suppress religious belief or practice is so well understood that few violations are recorded in our opinions."); .Employment Div. v. Smith, 494 U.S. 872, 894 (1990) (O'Connor, J., concurring) ("[F]ew states would be so naive as to enact a law directly prohibiting or burdening religious practice[s] as such.").

(2.) 494 U.S. 872 (1990).

(3.) 521 U.S. 507 (1997).

(4.) U.S. CONST. amend I. ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....") In Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), the Court held the rights guaranteed by the Free Exercise Clause of the First Amendment to be fundamental and thus applicable to the states as part of the Due Process Clause of the Fourteenth Amendment.

(5.) See Wisconsin v. Yoder, 406 U.S. 205 (1972); Sherbert v. Verner, 374 U.S. 398 (1963).

(6.) See Hernandez v. Commissioner, 490 U.S. 680 (1989).

(7.) See Frazee v. Illinois Dep't of Employment Sec., 489 U.S. 829, 834 (1989).

(8.) United States v. Ballard, 322 U.S. 78, 86 (1944); see also Thomas v. Review Bd. of the Ind. Employment Sec. Div., 450 U.S. 707, 715-16 (1981).

(9.) See, e.g., Hernandez, 490 U.S. at 689; Frazee, 489 U.S. at 835; Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 141 (1987); Bowen v. Roy, 476 U.S. 693, 732 (1986) (O'Connor, J., concurring in part and dissenting in part); Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983); United States v. Lee, 455 U.S. 252, 257-58 (1982); Thomas, 450 U.S. at 718; Yoder, 406 U.S. at 213-14; Sherbert, 374 U.S. at 406-07.

(10.) 494 U.S. 872 (1990).

(11.) See id. at 874-76.

(12.) Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 533 (1993); see also Smith, 494 U.S. at 877.

(13.) See Smith, 494 U.S. at 881-82. In Smith, the Court described hybrid rights as claims involving free exercise "in conjunction with or "connected with" other provisions of the Constitution. Id. 494 U.S. at 881. in Boerne, the Court described hybrid cases as ones that "implicated" rights beyond free exercise. City of Boerne v. Flores, 521 U.S. 507, 514 (1997). Absent more particularized guidance, the lower federal courts have taken divergent approaches to gauge whether a hybrid rights situation is presented meriting application of the compelling interest/no less restrictive alternatives test. Some courts have interpreted Smith to mandate the actual existence of an "independently viable" right other than free exercise before strict scrutiny will be applied. See, e.g., EEOC v. Catholic Univ. of America, 83 F.3d 455, 467 (D.C. Cir. 1996); Brown v. Hot, Sexy and Safer Prods., 68 F.3d 525, 539 (1st Cir. 1995). On the other hand, the Tenth Circuit does not require proof of a companion right; it merely demands a "colorable" claim of infringement of a right other than free exercise. See Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694, 700 (10th Cir. 1998). The Sixth Circuit, finding the hybrid rights exception "completely illogical," has elected to apply the deferential Smith standard to all generally applicable laws and regulations. See Kissinger v. Board of Trustees of Ohio State Univ., 5 F.3d 177, 180 (6th Cir. 1993) ("[U]ntil the Supreme Court holds that legal standards under the Free Exercise Clause vary depending on whether other constitutional rights are implicated, we will not use a stricter legal standard than that used in Smith to evaluate a generally applicable, exceptionless state regulation under the Free Exercise Clause.").

(14.) See Smith, 494 U.S. at 883-84; see also Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999) (applying heightened scrutiny to police department's refusal to exempt Sunni Muslim officers from policy prohibiting wearing of beards where exemptions were made for medical reasons).

The lower courts have refused to limit application of the reduced level of scrutiny to requests for exemption from criminal laws. See Miller v. Reed, 176 F.3d 1202, 1207 (9th Cir. 1999); Fraternal Order of Police, 170 F.3d at 363.

(15.) See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938); see also Timothy L. Hall, Omnibus Protections of Religious Liberty and the Establishment Clause, 21 CARDOZO L. REV. 539 (1999):

   Especially when a religious belief is held by a small minority of
   individuals, legislators may simply be unaware of the crisis of religious
   conscience a neutral law may occasion. Moreover, indifference is not the
   only attitude experienced by minority religious believers. Prejudice
   against discrete and insular religious minorities is alive and well in
   American politics.

Id at 553.

(16.) Smith, 494 U.S. at 890.

(17.) Id. at 891 (O'Connor, J., concurring). Justice Blackmun likewise inveighed against the majority for "effectuat[ing] a wholesale overturning of settled law concerning the Religion Clauses." Id. at 908 (Blackmun, J., dissenting). While advocating strict scrutiny, Justice O'Connor found that the government had met its burden of establishing a compelling interest that would be undermined if the First Amendment afforded exemptions from laws criminalizing possession of peyote. Id. at 904-07 (O'Connor, J., concurring).

(18.) Id. at 902 (O'Connor, J., concurring) (quoting majority at 889).

(19.) 508 U.S. 520 (1993).

(20.) See id at 523-30.

(21.) See id. at 531.

(22.) See id. at 532-42. For example, the ordinance exempted the slaughtering of Kosher meat within the city limits. The Court found no need to consider whether the differential treatment of two religions was itself unconstitutional but relied upon the exemption as evidence of the legislature's intent to repress the Santeria religion. See id.

(23.) See id. at 542-46.

(24.) See id. at 546-47.

(25.) See id. at 564 (Souter, J., concurring).

(26.) See id. at 564-71 (Souter, J., concurring) (relying primarily on Wisconsin v. Yoder, 406 U.S. 205, 220 (1972)(noting that some conduct protected by the Free Exercise clause lies beyond the ability of the government to regulate and that a facially neutral law may still be unconstitutional if it unduly burdens religion).

(27.) See id. at 571-72 (Souter, J., concurring).

(28.) Id. at 572.

(29.) See id.

(30.) Id. at 573 (quoting Humphrey's Ex'r v. United States, 295 U.S. 602, 627 (1935)).

(31.) See id. (Souter, J., concurring).

(32.) Id. at 573-74.

(33.) See id. at 574-77. In her dissenting opinion in City of Boerne v. Flores, 521 U.S. 507, 549-65 (1997), Justice O'Connor detailed the historical evidence and concluded that it supported protecting believers against unintended burdens on religion created by neutral laws of general applicability. See also Michael McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV. 1409 (1990).

(34.) See Boerne, 521 U.S. at 566 (Breyer, J., dissenting).

(35.) Church of Lukumi Babalu Aye, 508 U.S. 520.

(36.) 521 U.S. 507 (1997).

(37.) See S. REP. NO. 103-111, at 1 (1993), reprinted in U.S.C.C.A.N. 1892, 1903. Section 5 of the Fourteenth Amendment states: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." U.S. CONST. amend XIV, [sections] 5.

(38.) See 42 U.S.C. [sections] 2000bb-1 to -4 (1994). RFRA passed the House of Representatives without opposition, and only three senators voted against the Act. 139 CONG. REC. 2356-03, 2363; 139 CONG. REC. 8713-04, 8715; 139 CONG. REC. S14461-01, S14471.

(39.) 42 U.S.C. [sections] 2000bb(a)(4).

(40.) 42 U.S.C. [sections] 2000bb(b)(1).

(41.) See 42 U.S.C. [sections] 2000bb-1.

(42.) 42 U.S.C. [sections] 2000bb-1(c); see infra Part IV(D).

(43.) See 42 U.S.C. [sections] 2000bb-1(b).

(44.) S. REP. NO. 103-111, at 1 (1993), reprinted in U.S.C.C.A.N. 1892,1897.

(45.) 42 U.S.C. [sections] 2000bb(a)(2).

(46.) 521 U.S. 507 (1997).

(47.) See id. at 512.

(48.) See id. at 520-35.

(49.) See id. at 536.

(50.) See id. at 520. Section 1 of the Fourteenth Amendment states in relevant part: "... nor shall any State deprive any person of life, liberty, or property, without due process of law ...". U.S. Const. amend. XIV, [sections] 1.

(51.) See id. at 518.

(52.) See id. at 519.

(53.) The Court found a stark absence in the legislative record of historic evidence that religious intolerance was intentionally promoted through the Trojan horse of laws of general applicability. See City of Boerne v. Flores, 521 U.S. 507, 530-31 (1997). Even were there such evidence in the record, the Court reasoned, the scope of RFRA extended far beyond laws likely to be motivated by religious bigotry. See id. at 532-35.

(54.) Id. at 520.

(55.) See id. at 520-21.

(56.) Id. at 534.

(57.) 5 U.S. (1 Cranch) 137 (1803).

(58.) Boerne, 521 U.S. at 536 (quoting Marbury, 5 U.S. at 177).

(59.) Id.

(60.) The lower federal courts have divided over whether RFRA is unconstitutional when applied to actions of the federal, as opposed to state and local government. See In re Grand Jury Empaneling of Special Grand Jury, 171 F.3d 826 (3d Cir. 1999).

   Courts have since disagreed over whether RFRA is constitutional as applied
   to the federal government .... Here ... we need not decide whether any part
   of RFRA survives [City of Boerne v.] Flores, because we conclude that the
   federal government's action in this case would survive strict scrutiny even
   under the rigorous RFRA standard.

Id. at 829; Sutton v. Providence St. Joseph Medical Center, 192 F.3d 826, 830 (9th Cir. 1999) ("[M]ost courts that have considered the issue have concluded that the Supreme Court invalidated RFRA only as applied to state and local law."); United States v. Muhammad, 165 F.3d 327, 336-37 (5th Cir. 1999) (noting that courts disagree as to the constitutionality of RFRA as applied to federal governmental action); McNair-Bey v. Bledsoe, unpublished opinion, No. 97-1701, 1998 WL 879503, at n.2 (7th Cir. 1998) (stating that the Supreme Court's decision in Boerne "arguably casts some doubt on the continued viability of that legislation in the federal context"); Browne v. United States, 22 F. Supp. 2d 309, 312 (D. Vt. 1998) (doubting that RFRA is constitutional as applied to federal law, but noting that, "even assuming the constitutionality of RFRA and accepting as true the plaintiffs allegation that voluntary compliance substantially burdens their practice of religion, the plaintiff's complaint fails as a matter of law. Here, voluntary compliance with federal income tax laws is the least restrictive means of furthering a compelling governmental interest."); In re Gates Community Chapel, Inc., 212 B.R. 220, 225-26 (Bankr. W.D.N.Y. 1997) (construing Boerne as mooting debtor's argument that payment of post-confirmation United States trustee fees violates RFRA); see also cases collected in Edward J.W. Blatnik, No RFRA Allowed: The Status of the Religious Freedom Restoration Act's Federal Application in the Wake of City of Boerne v. Flores, 98 COLUM. L. REV. 1410, 1412 nn.10-11 (1998); Eugene Gressman, The Necessary and Proper Downfall of RFRA,I, 2 NEXUS J. OP. 73, 81 (1997) [hereinafter Downfall] ("Boerne had no occasion to assess RFRA's constitutionality with respect to its application to federal statutes and regulations...."); Eugene Gressman, RFRA: A Comedy of Necessary and Proper Errors, 21 CARDOZO L. REV. 507, 529 (1999) [hereinafter Comedy] ("Since RFRA still contains all the elements of a separation of powers violation, RFRA cannot be considered a valid or proper amendment to ... any ... federal law enacted in execution of an Article I power of Congress.").

The House of Representatives apparently believed that RFRA remained in effect as against the federal government when it approved The Religious Liberty Protection Act of 1999, H.R. 1691, 106th Cong. (1999). The Act amends RFRA to confine its reach to the federal government without altering the extant substantive limitations RFRA imposed. See H.R. 1691, 106th Cong. [sections] 7 (1999).

(61.) See U.S. CONST. art. I, [sections] 8, cl. 1 ("The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States....").

(62.) See id. [sections] 8, cl. 3 ("The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States....").

(63.) See id. [sections] 8, cl. 18 ("The Congress shall have Power ... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States....").

(64.) See. e.g., Daniel O. Conkle, Congressional Alternatives in the Wake of City of Boerne v. Flores: The (Limited) Role of Congress in Protecting Religious Freedom From State and Local Infringement, 20 U. ARK. LITTLE ROCK L.J. 633 (1998); Thomas C. Berg, The Constitutional Failure of Religious Freedom Legislation, 20 U. ARK. LITTLE ROCK L.J. 715 (1998); Yehuda M. Braunstein, Will Jewish Prisoners Be Boerne Again? Legislative Responses to City of Boerne v. Flores, 66 FORDHAM L. REV. 2333 (1998); Rodney K. Smith, Responding to the Supreme Court's Effort to End the Conversation about Religious Exemptions and Welcoming Professor Sullivan to the Debate, 81 MARQ. L. REV. 487 (1998).

(65.) H.R. 1691, 106th Cong. (1999).

(66.) See H.R. REP. NO. 106-219 (1999).

(67.) H.R. 1691, [sections] 2(a). To state a prima facie case under this section, the plaintiff must prove as an element of the cause of action that the burden on religious exercise affects commerce within the meaning of the Court's interpretations of the Commerce Clause. See H.R. REP. NO. 106-219.

(68.) See H.R. 1691, [sections] 2(b).

(69.) Id. [sections] 3(b)(1)(A).

(70.) See id. [sections] 3(b)(1)(B).

(71.) See id. [sections] 3(b)(1)(C).

(72.) See id. [sections] 3(b)(1)(D). The House averred that Congress has the power under Section 5 of the Fourteenth Amendment to remedy land use regulations by imposing a more rigorous standard of scrutiny than generally required under the Free Exercise Clause because, as demanded by Boerne, hearings established sufficient statistical as well as anecdotal evidence of "a widespread pattern of religious discrimination in land use regulation." H.R. REP. NO. 106-291 (1999); see also Boerne, 521 U.S. at 526, 531. Moreover, the House asserted, strict scrutiny was consonant with the portion of the Court's opinion in Smith insisting upon continued proof of a compelling governmental interest and no less restrictive alternatives to justify inadvertent burdens on religious liberty where governmental bodies have authority to make individualized assessments of the justification for official actions. See Boerne, 521 U.S. at 531; see also H.R. Rep. No. 106-291 (1999); Employment Div. v. Smith, 494 U.S. 872, 884 (1990).

(73.) See House Passes Bill to Limit States' and Localities' Power to Curb Religious Activities, CONG. Q. WKLY., July 17, 1999, at 1730. The Senate Judiciary Committee did hold a hearing on RLPA on September 9, 1999. See 68 U.S.L.W. 2157 (Sept. 21, 1999). One of the four scholars testifying, Jay S. Bybee, opined that RLPA is not constitutional. See id.

(74.) It is not a foregone conclusion that the Senate and President would support RLPA in its present form. The American Civil Liberties Union, Human Rights Campaign, and NAACP Legal Defense and Education Fund opposed RLPA because of its potential use as a justification for discrimination. See House Passes Bill to Limit States' and Localities' Power to Curb Religious Activities, CONG. Q. WKLY., July 17, 1999, at 1730; see also infra Part IV(C)(3)(b).

(75.) Since Boerne, the Court has continued to closely examine remedial legislation premised upon Congress' power under Section 5 of the Fourteenth Amendment. In Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank, 119 S. Ct. 2199, 2207-10 (1999), the Court held that Congress did not have the power under the Fourteenth Amendment to abrogate the states' Eleventh Amendment immunity when it enacted the Patent and Plant Variety Protection Remedy Clarification Act, 35 U.S.C. [sections] 296(a) (1994), because the legislative record had not identified any pattern of unremedied patent infringement or constitutional violations by the states. In Kimel v. Florida Board of Regents, 120 S. Ct. 631 (2000), the Court struck down the 1974 Amendment to the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. [sections] 630(B), that extended the Act's substantive requirements to the states. While accepting that Congress intended to abrogate the states' Eleventh Amendment immunity, the Court held that Congress exceeded its Section 5 power by imposing substantive proscriptions against age discrimination that surpassed the prohibitions of the Equal Protection Clause of Section 1 of the Fourteenth Amendment. Because there was little evidence in the legislative record that state governments were engaged in widespread unconstitutional discrimination, the Court concluded that the amendment to the ADEA was not an effort to design an appropriate remedy for violations of the Equal Protection Clause but instead was "merely an attempt to substantively redefine the States' legal obligations with respect to age discrimination." Kimel, 120 S. Ct. at 648. The Court has granted certiorari to consider whether the provision of the 1994 Violence Against Women Act, 42 U.S.C. [sections] 13981, creating a private right of action for victims of crimes of violence motivated by gender exceeds Congress's power under the Enforcement Clause of the Fourteenth Amendment. See Brzonkala v. Virginia Polytechnic Inst. & State Univ., 169 F.3d 820 (4th Cir. 1999) (en banc), cert. granted, U.S. v. Morrison, 120 S. Ct. 11 (1999) (Mem.).

(76.) See Gressman, Comedy, supra note 60, at 534 ("[N]o matter what Article I power Congress seeks to employ, there is no way to insulate any federal statute ... from the constitutional limitations built into the Necessary and Proper Clause.").

(77.) See H.R. REP. NO. 106-291, at 32-40 (1999). The Department of Justice agreed that "RLPA raises important and difficult constitutional questions," but concluded that the act was constitutional. 145 CONG. REC. 5594 (daily ed. July 15, 1999); see also Steven D. Smith, Mother May We?, 21 CARDOZO L. REV. 501, 506 (3999).

   Whether Congress has the power to enact RFRA-type legislation is ultimately
   within the discretion of the Supreme Court. There is no way to tell how the
   Court will exercise this discretion, no way to compel the Court to exercise
   its discretion in any particular way, and no way to demonstrate that in its
   exercise of discretion the Court got the right answer or the wrong answer.

Id.

(78.) See H.R. REP. NO. 106-219. To the extent that RLPA rests upon the Commerce and Spending Clauses, Congress does not have the power to override the states' immunity from suit under the Eleventh Amendment. See Seminole Tribe v. Florida, 517 U.S. 44 (1996).

(79.) 119 S. Ct. 2240 (1999).

(80.) See id.

(81.) RLPA provides a cause of action to "obtain appropriate relief against a government." H.R. 1691, 106th Cong. [sections] 4(a) (1999). The text of the statute does not prescribe whether individual state officials are suable for violating the act. However, a state official who is sued for enforcing a rule of general applicability that burdened religion would likely be protected by qualified immunity in any action for damages under RLPA. See infra note 320 and accompanying text.

(82.) Professor Lupu submits, however, that any attempt to capture religious freedom generally through legislative means ultimately stultifies advancement of religious liberty. See Ira C. Lupu, The Case Against Legislative Codification of Religious Liberty, 21 CARDOZO L. REV. 565 (1999).

(83.) See supra notes 50-56 and accompanying text.

(84.) City of Boerne v. Flores, 521 U.S. 507, 534 (1997).

(85.) S. 1391, 44th Leg., 1st Reg. Sess. [sections] 2 (Ariz. 1999). The Arizona legislature was relying upon its power to supplement rights founded in the Arizona, rather than the federal, constitution. Nonetheless, the source of that police power remains the same. See also Lupu, supra note 82, at 588 ("[W]ith respect to the states, each of their legislatures possesses the police power, which encompasses all matters of health, welfare, safety, and morals. Surely the enhancement of religious freedom falls within a power grant as capacious as this.")

(86.) THE FEDERALIST No. 45, at 303 (James Madison) (Edward Mead Earle ed., 1976) (emphasis added).

(87.) See Barron v. The Mayor and City Council of Baltimore, 32 U.S. (7 Pet.) 243 (1833).

(88.) See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).

(89.) States have allowed religious exemptions in the following areas: civil duties, see HAW. REV. STAT. [sections] 612-6 (1993) (a person may claim exemption from service as a juror if the person is a minister or priest); 51 PA. CONS. STAT. ANN. [sections] 2101(b) (West 1976) (all persons who because of religious belief claim exemption from militia service shall be exempted in combatant capacity); criminal prosecution, see CONN. GEN. STAT. ANN. [sections] 22-272a (West 1995) (anyone who engages in the ritual slaughter of animals is exempt from criminal prosecution); IDAHO CODE [sections] 37-2732A (1994) (persons of Native American descent are exempt from criminal sanctions for the sacramental use of peyote); N.H. REV. STAT. ANN. [sections] 639.3 (1996) ("a person who, pursuant to the tenets of a recognized religion, fails to conform to the existing duty of care or protection he owes to a child or incompetent is not guilty of child endangerment"); OHIO REV. CODE ANN. [sections] 2331.11 (West 1994 & Supp. 1999) ("persons who, on their traditional day of worship are within, going to or returning from their place of worship, are worshiping at service, or are going to or returning from service, are privileged from arrest"); education, see S.D. CODIFIED LAWS [sections] 13-27-1.1 (Michie 1991) (a child of compulsory school age who has successfully completed the first eight grades is excused from compulsory school attendance if child or parents of child are members of recognized church that objects to regular public high school attendance and if that church provides a supervised program of instruction for that child); employment, see N.D. CENT. CODE [sections] 34-06-05.1 (Supp. 1997) (an employer must provide an employee with at least one period of twenty-four hours of time off for rest or worship in each seven-day period); OR. REV. STAT. [sections] 653.010 (1997) (individuals employed on a seasonal basis at an organized religious camp are exempt from minimum wage standard); licensing requirements and building regulations, see ARIZ. REV. STAT. ANN. [sections] 32-1421A (West 1992 & Supp. 1998) (medical licensing requirements do not apply to any person engaged in the practice of religion, treatment by prayer, or the laying on of hands as a religious rite or ordinance); IOWA CODE ANN. [sections] 595.17 (West 1996) (marriage provisions on procuring licenses and solemnization are not applicable to members of a denomination having an unusual mode of entering into the marriage relation); KAN. STAT ANN. [sections] 66-1,109 (1992 & Supp. 1998) (any motor carrier owned by religious organizations or institutions are not required to obtain license, certificate, or permit from State Corporation Commission or file rates, tariffs annual reports, or provide proof of insurance with Commission); MD. CODE ANN., BUS. REG. [sections] 5-102 (1998) (any person who owns and operates a bona fide religious, nonprofit cemetery is exempt from registration and permitting provisions for cemeteries); MINN. STAT. ANN. [sections] 171.071 (West 1986 & Supp. 1999) (where licensee has religious objections to the use of electronically produced images, he is exempt from photo identification requirement on driver's license); N.C. GEN. STAT. [sections] 116-15(d) (1994) (no institution offering post-secondary degree in theology, divinity, or religious education shall be subject to licensure); OKLA. STAT. ANN. tit. 2, [sections] 6-265 (West 1993) (persons slaughtering, processing, or handling poultry products that are processed as required by recognized religious dietary laws are exempt from inspection, sanitation, and shipping requirements); S.C. CODE ANN. [sections] 12-21-660 (Law Co-op. 1976 & Supp. 1998) (churches are exempt from licensing requirements for engaging in the tobacco business); VA. CODE ANN. [sections] 63.1-196.3 (Michie 1995) (hospices established or operated for the practice of religious tenets of any recognized church that provide care for the sick by spiritual means without the use of any drug or material remedy are exempt from licensure); WIS. STAT. ANN. [sections] 101.05 (West 1997) (school buildings are exempt from building codes if the teachings and beliefs of the religious denomination that operates the school prohibit the use of certain products, devices, or designs that are necessary to comply with building regulations); WYO. STAT. ANN. [sections] 33-13-104 (Michie 1999) (all religious organizations or institutions are exempt from dance hall licensure); medical testing and health regulations, see ALA. CODE [sections] 16-30-3 (1995) (school children are exempt from immunization if parent or guardian objects in writing that the immunization or testing conflicts with religious tenets); ARK. CODE ANN. [sections] 20-15-303 (Michie 1991) ("[N]ewborn infants are exempt from tests for phenylketonuria, hypothyroidism, and sickle-cell anemia if parents object on the grounds that they conflict with tenets and practices of a recognized church or religious faith of which the parent is a member or adherent."); CAL. GOV'T CODE [sections] 27491.43 (West 1988) (a coroner may not perform an autopsy or remove tissue, glands, or organs of decedent if he has received a certificate that the procedure would be contrary to decedent's religious beliefs); MISS. CODE ANN. [sections] 37-11-17 (1999) (school children whose parents object on religious grounds are exempt from required spinal curvature screening); N.Y. PUB. HEALTH LAW [sections] 2500-e (McKinney 1993) (infants born to a mother who tests positive for hepatitis B are exempt from immunization if the parents hold a genuine and sincere religious belief which prohibits such immunization); and taxation, see ALASKA STAT. [sections] 29.45.030 (Michie 1998) (property used exclusively for nonprofit religious purposes, including residence of bishop, priest, rabbi, or minister and structures used solely for public worship, is exempt from general taxation); IND. CODE ANN. [sections] 7.1-4-3-5 (Michie 1996) (liquor excise tax does not apply to the sale or withdrawal for sale of wine to pastor, rabbi, or priest for sacramental or religious purposes only); LA. REV. STAT. ANN. [sections] 4:43 (West 1987) ("No amusement tax shall be levied with respect to any admission to any church fair, church card or lotto party, church lecture, church picnic, or religious festival, all of the proceeds of which inure to the benefit of religious institutions."); MASS. GEN. LAWS ANN. ch. 64H, [sections] 6 (West 1988 & Supp. 1999) (books used for religious worship are exempt from sales tax).

(90.) See Boerne, 521 U.S. at 557-65 (O'Connor, J., dissenting) (concluding that at the time the Bill of Rights was ratified, the colonies and early states accepted that government should exempt religious objectors from general laws).

(91.) Boerne, 521 U.S. at 559 (O'Connor, J., dissenting).

(92.) U.S. CONST., amend. I; see infra Part IV(C)(5).

(93.) Zorach v. Clauson, 343 U.S. 306, 314 (1951).

(94.) H.R. 1691, 106th Cong. [sections] 3(b)(3) (1999).

(95.) See R.I. GEN. LAWS [sections] 42-80.1-3 (1998).

(96.) See CONN. GEN. STAT. [sections] 52-571(b) (1997).

(97.) See H.R. 2370, 90th Leg. (Ill. 1998).

(98.) See FLA. STAT. ANN. [sections] 761.01 (West 1998).

(99.) See H.R. 3158, 113th Reg. Sess. (S.C. 1999).

(100.) See S. 1056, 44th Leg., 1st Reg. Sess. (Ariz. 1999).

(101.) See TEX. CIV. PRAC. & REM. CODE ANN. [sections] 110 (West 1999).

(102.) See S.B. 1394, 55th Leg., 2d Sess. (Idaho 2000).

(103.) Many other states have considered religious freedom acts. On March 24, 1998, Louisiana legislators introduced the Louisiana Religious Freedom Restoration Act, H.R. 167, 1998 First Extraordinary Sess. (La. 1998). Supporters of the act dropped efforts to pass it after the House Committee on Civil Law voted 6-4 to adopt an amendment that would preclude prisoners from asserting the broadened protections for religious liberty afforded by the act. See Joanna Weiss, Religious Freedom Measure Pulled, NEW ORLEANS TIMES-PICAYUNE, Apr. 1, 1998, at A3. The bill resurfaced in 1999 without the prisoner's exemption. See H.R. 1522, 1999 Reg. Sess. (La. 1999). On June 10, 1999, the sponsor of the bill withdrew the legislation from consideration because he believed the Department of Correction would dramatically alter the bill. Telephone Interview with Robert Singletary, counsel for the Louisiana House of Representatives (June 11, 1999). On June 17, 1999, Representative Long introduced a resolution that requested the Louisiana House Committee on Civil Law and Procedure to discuss the ramifications of enacting state protection of religious liberty and to report the findings to the House of Representatives prior to the convening of the 2000 Regular Session. See H.R. 111, 1999 Reg. Sess. (La. 1999). The measure passed the House of Representatives and was enrolled and signed by the speaker on June 21, 1999.

Two weeks after Boerne, New York legislators introduced a religious freedom bill to restore the compelling interest test. See S. 5673, 220th Annual Leg. Sess. (N.Y. 1997). After failing to pass both houses, the bill was reintroduced in 1999. See S. A05139, 1999 Reg. Leg. Sess. (N.Y. 1999). On June 17, 1999, the bill passed the New York Assembly and was referred to the New York Senate Rules Committee. The bill died in the Senate and returned to the New York Assembly on January 5, 2000. On January 11, 2000, the bill was discharged by the Rules Committee and committed to Governmental Operations. See <http://assembly.state.ny.us/cgi-bin/showbill?billnum=A05139>.

In 1998 and 1999, Maryland legislators proposed and then withdrew the Maryland Religious Freedom Act. See S. 674, 1999 Reg. Sess. (Md. 1999), <http://mlis.state.md.us/1999rs/billfile/SB0674.htm>; H.R. 1041, 1998 Reg. Sess. (Md. 1998); S. 515, 1998 Reg. Sess. (Md. 1998). On January 13, 1998, New Jersey legislators introduced the New Jersey Religious Freedom Act. See A. 903, S. 321, 208th Leg. (N.J. 1998). The bill died after the Office of Legislative Services issued an opinion concluding that the Act would violate the Free Exercise and Establishment Clauses of the First Amendment to the United States Constitution. See Ellen Friedland, New Grounds for RFRA Attach in Nd Senate, N.J. JEWISH NEWS, Apr. 2, 1999. On January 11, 2000, A.B. 412, 209th Leg. (N.J. 2000), creating the New Jersey Religious Freedom Act, was introduced and referred to the Assembly Judiciary Committee. See <http://www.njleg.state.nj.us/2000/Bills/a0500/ 412_il.htm>. In the summer of 1997, Michigan legislators introduced the Michigan Religious Freedom Act. See H.R. 4376, 89th Leg., 1997 Reg. Sess. (Mich. 1997); S. 678, 89th Leg., 1997 Reg. Sess. (Mich. 1997). The Act never emerged from the Senate Judiciary Committee and was reintroduced in the Michigan Senate on February 3, 1999. See S. 235, 1999 Reg. Sess. (Mich. 1999). Senate Bill 235 is not scheduled to be heard in committee. See Telephone Interview with Joe O'Reilly, aide to the bill's sponsor (June 8, 1999). Because the Supreme Court of Michigan, in Kerr v. Hoffus, 586 N.W.2d 723 (Mich. 1998), construed the state constitution to demand strict scrutiny of inadvertent burdens on religious exercise, some legislators have questioned the utility of a state religious freedom act. See S. 235, 1999 Reg. Sess. (Mich. 1999). On January 14, 1998, Virginia legislators offered a bill to preserve religious freedom by mandating strict scrutiny of all substantial burdens on religious liberty. See H.R. 1, 1998 Reg. Sess. (Va. 1998). The bill was referred to the House Courts of Justice Committee, which took no action on the bill. See <http://leg.1.state.va.us/cgi-bin/legp504.ex?991+sum+HB1>. S.B. 448 was offered on January 24, 2000 but was defeated in the Courts of Justice on February 13, 2000. See <http://leg.1.state.va.us/cgi-bin/legp504.exe?ses=001+typ =bills+val=hb1255>. Religious Freedom Acts also have been introduced in Georgia, H.R. 1123, 20th Leg. (Ga. 1999), S. 1447, 20th Leg. (Ga. 1999); Missouri, H.R. 1799, 2000 Reg. Sess. (Mo. 2000); Oregon, H.R. 3469, 70th Leg., 1999 Reg. Sess. (Or. 1999); Hawaii, H.B. 1696, 20th Leg. Reg. Sess. (Ha. 1999); Indiana, H.B. 1264, 111th Gen. Ass., 2d Reg. Sess. (Ind. 2000); and Oklahoma, S.B. 1162, 47th Leg., 2d Reg. Sess. (Ok. 2000).

Alabama voters approved an amendment to the state constitution prohibiting burdening of the free exercise of religion unless government proves a compelling interest that cannot be satisfied by alternatives less restrictive of the religious exercise. See S. 604, 1998 Reg. Sess. (Ala. 1998) (approved by voters in the Nov. 1998 election).

104. See A. 1617, 1997-98 Reg. Sess. (Cal. 1998) (vetoed); S. 644, 44th Leg., 1st Sess. (N.M. 1999) (vetoed). New Mexico Governor Johnson vetoed his state's bill because of his belief that "[c]aution must be shown in the adoption of such legislation due to the excessive litigation that may ensue, the costs that may be incurred and the exceedingly personal conflicts over one's religion that may result from the enactment of `little RFRAs' rather than reliance upon existing first amendment case law." Senate Executive Message No. 52, Apr. 8, 1999. The New Mexico Religious Freedom Restoration Act was reintroduced on February 2, 2000. H.B. 458, 44th Leg., 2d Sess. (N.M. 2000). California Governor Wilson vetoed the California measure for several reasons. First he believed that the bill was unnecessary because the California Constitution already had been construed to require strict scrutiny for burdens on religious liberty imposed by neutral laws of general applicability. See Smith v. Fair Employment and Hous. Comm'n, 913 P.2d 909 (Cal. 1996). Secondly, the Governor asserted that the least restrictive alternative test was not mandated by the United States Supreme Court's pre-Smith Free Exercise precedents and thus the legislation went beyond the constitutional protections that its sponsors sought to restore. Third, Governor Wilson alleged that the Act would have untold and undesired consequences when relied upon by prisoners and persons accused of crimes. Finally, Governor Wilson claimed that the Act violated the state constitution by empowering the courts to amend statutes by carving exceptions to later-enacted statutes. Governor Wilson urged the California legislature instead to "decide on a bill-by-bill basis whether and how to accommodate conduct motivated by religious concerns." Assembly Bill 1617 Veto, September 28,1998.

(105.) See Pruneyard Shopping Ctr. v. Robbins, 447 U.S. 74 (1980).

(106.) See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973).

(107.) See New State Ice. Co., v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).

(108.) See, e.g., Kerr v. Hoffus, 586 N.W.2d 723 (Mich. 1998); State v. Bontrager, 683 N.E.2d 126 (Ohio App. Ct. 1996); State v. Miller, 549 N.W.2d 235 (Wis. 1996); Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274 (Alaska 1994); First Covenant Church v. City of Seattle, 840 P.2d 174 (Wash. 1992); Rupert v. City of Portland, 605 A.2d 63 (Me. 1992); State v. Hershberger, 462 N.W.2d 393 (Minn. 1990); Society of Jesus v. Boston Landmarks Comm'n, 564 N.E.2d 571 (Mass. 1990).

(109.) 521 U.S. 702 (1997).

(110.) Id. at 720.

(111.) Id. at 735.

(112.) Employment Div. v. Smith, 494 U.S. 872, 890 (1990).

(113.) S. 1391, 44th Leg., 1st Reg. Sess. [sections] 2 (Ariz. 1999); S.B. 1394, 55th Leg., 2d Sess. [sections] 1(4) (Idaho 2000).

(114.) TEX. CIV. PRAC. & REM. CODE ANN. [sections] 110.009(b) (West 1999).

(115.) See, e.g., FLA. STAT. ANN. [sections] 761.05(7) (West 1998) ("Nothing in this act shall be construed to affect, interpret, or in any way address that portion of s. 3, Art. I of the State Constitution and the First Amendment to the Constitution of the United States respecting the establishment of religion.").

(116). 42 U.S.C. [sections] 2000bb(a)(4) (1997).

(117.) 42 U.S.C. [sections] 2000bb(b)(1) (emphasis added) (citations omitted).

(118.) The United States House of Representatives appears to have learned this lesson, as the Religious Liberty Protection Act of 1999 makes no reference to Smith and does not use the word "restoration" in the title or text of the Act. See H.R. 1691, 106th Cong. (1999). On the other hand, the House Report betrays that RLPA "was introduced, in part, in response to the Supreme Court's partial invalidation of the Religious Freedom Restoration Act (RFRA), which itself was enacted in 1993 in response to [Smith]." H.R. REP. NO. 106-219, at 4 (1999).

(119.) See supra note 103.

(120.) H.R. 2370, 90th Leg. [sections] 1 (Ill. 1998).

(121.)See Ill. H.B. 2370 [sections] 10(a)(4); H.R. 3158, 113th Reg. Sess. Finding 4 (S.C. 1999).

(122.) See Ill. H.B. 2370 [sections] 10(b)(1); S.C.H.R. 3158 [sections] 1.

(123.) S. 1391, 44th Leg., 1st Reg. Sess. (Ariz. 1999); H.R. 3201, 1998 Reg. Sess. [sections] 1 (Fla. 1998); R.I. GEN. LAWS, [sections] 42-80.1 (1998); S. 644, 44th Leg., 1st Sess. [sections] 1 (N.M. 1999) (vetoed). The Idaho act provides that its statement of purpose is "to reestablish" the compelling interest test that had been in effect before Smith. S.B. 1394, 55th Leg., 2d Reg. Sess. (Idaho 2000).

(124.) See CONN. GEN. STAT. ANN. [sections] 52-571(b) (1997); TEX. CIV. PRAC. & REM. CODE ANN. [sections] 110.009(b) (West 1999) (entitled "Religious Freedom Act"); A. 1617, 1997-98 Reg. Sess. (Cal. 1998) (vetoed) (entitled Religious Freedom Protection Act").

(125.) 42 U.S.C. [sections] 2000bb(b)(1) (1994) (citations omitted).

(126.) See Ill. H.R. 2370 at [sections] 10(a)(6); S.C.H.R. 3158 at Finding No. 6.

(127.) Ariz. S. 1391 [sections] 2(A)(6); S.B. 1394, 55th Leg., 2d Reg. Sess. [sections] 1(6) (Idaho 2000).

(128.) Fla. H.R. 3201 (preamble).

(129.) See CONN. GEN. STAT. ANN. [sections] 52-571b(b) (1997); R.I. GEN. LAWS, 42-80.1-3(b)(2) (1998); S. 644, 44th Leg., 1st Sess. [sections] 3(B) (N.M. 1999) (vetoed).

(130.) Professor Volokh suggests that legislatures should not attempt to constrain judicial discretion initially to strike a balance between religious liberty and governmental interests. See Eugene Volokh, A Common-Law Model for Religious Exemptions, 46 UCLA L. REV. 1465, 1494-1505 (1999). In fact, Professor Volokh advocates that state RFRAs should not even impose strict scrutiny but instead empower the courts to determine whether a burden on religious liberty is justified "under the principles of the traditional law of [religious/conscientious] exemptions as they may be developed, expanded, contracted, or modified by the courts of [the jurisdiction] in light of reason and experience." Id. at 1503-04. Professor Lupu similarly concludes that the prevailing judicial approach to exemption claims--"religion sometimes wins, but the grounds on which it will do so cannot be specified in advance"--will not be altered by any statutory formula prescribed by religious liberty legislation. Lupu, supra note 82, at 579.

(131.) TEX. CIV. PRAC. & REM. CODE ANN. [sections] 110.001(b) (West 1999).

(132.) A. 1617, 1997-98 Reg. Sess. [sections] 1(a) (Cal. 1998) (vetoed). While citing no specific cases in its findings, the California legislature stated the purpose of the statute was "[t]o codify the principle that government should not substantially burden religious exercise without compelling justification, and then only by the least restrictive means consistent with that compelling justification, as set forth in People v. Woody [61 Cal. 2d 716 (1964)]; Sherbert v. Verner [374 U.S. 398 (1963)]; and Wisconsin v. Yoder [406 U.S. 205 (1972)]." Id. [sections] (b)(1) (italics added).

(133.) See infra notes 136-48 and accompanying text. Professor Volokh offers that courts should be more inclined to grant exemptions under state RFRAs than under the Free Exercise Clause, because exemptions under the latter represent the court's own values and are not subject to legislative revision. See Eugene Volokh, Intermediate Questions of Religious Exemptions -- A Research Agenda with Test Suites, 21 CARDOZO L. REV. 595, 617-18 (1999).

(134.) In crafting a provision detailing which interests are and are not compelling, the legislature should not limit itself to the interests at issue in the Supreme Court's Free Exercise cases. As the California legislature recognized, the courts have had occasion to apply the compelling interest test "in case law relating to religious liberty and other fundamental rights." Cal. A. 1617 [sections] 1(a) (emphasis added). The compelling government interest standard also has been used in the area of equal protection to evaluate governmental regulations providing differential treatment based on racial classifications. See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 519 (1989) (Scalia, J., concurring) ("Strict scrutiny must be applied to all governmental classification by race, whether or not its asserted purpose is `remedial' or `benign.'"); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 274 (1986) (In the context of affirmative action, racial classifications must be "supported by a compelling state purpose[,] and ... the means chosen to accomplish that purpose [must be] ... narrowly tailored."); Palmore v. Sidoti, 466 U.S. 429, 432 (1984) (citation omitted) (Classifications of persons according to race "are subject to the most exacting scrutiny; to pass constitutional muster, they must be justified by a compelling governmental interest and must be `necessary to the accomplishment' of their legitimate purpose."). Additionally, strict scrutiny has been applied in the area of free speech to justify content-based regulations of speech. See, e.g., Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994) ("[T]he most exacting scrutiny [is applied] to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content."); International Soc'y for Krishna Consciousness v. Lee, 505 U.S. 672, 678 (1992) (holding that regulation of speech on government property that has traditionally been available for public expression is subject to highest scrutiny); Sable Comm. of Cal. v. FCC, 492 U.S. 115, 126 (1989) (holding that although sexual expression which is indecent but not obscene is protected by the free speech provision of the First Amendment, "[t]he Government may ... regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest"); United States v. O'Brien, 391 U.S. 367, 376 (1968) ("[W]hen `speech' and `nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.").

(135.) Cal. A. 1617 [sections] 3(a)(7).

(136.) See id. [sections] 3(a)(9).

(137.) See id. [sections] 3(a)(10).

(138.) See id. [sections] 3(a)(11).

(139.) S. 0532, 91st Leg. [sections] 5 (Ill. 1999). The proposed amendment, which has not moved beyond the Rules Committee, is part of a larger effort to dilute the protection of religious liberty created by the Illinois Religious Freedom Restoration Act. The amendment narrows the circumstances under which government may be deemed to have burdened the exercise of religion. See id. The proposal also substitutes a "not substantially broader than necessary" test for the no least restrictive alternative requirement of the act. Id. [sections] 15.

(140.) Analysis of free speech jurisprudence reveals an additional contradiction with respect to the proposed compelling interest of preserving the character of communities and neighborhoods. See City of Ladue v. Gilleo, 512 U.S. 43, 54 (1994) (city's interest in minimizing visible clutter held insufficient to justify ban on residential signs because such an ordinance "totally foreclosed that medium to political, religious, or personal messages"); Kirkeby v. Furness, 92 F.3d 655 (8th Cir. 1996) (city's interest in protecting residential privacy and tranquility held not compelling to uphold residential picketing ordinance).

(141.) See Sherbert v. Verner, 374 U.S. 398 (1963); Thomas v. Review Bd. of the Ind. Employment Sec. Div., 450 U.S. 707 (1981); Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136 (1987); Frazee v. Illinois Dep't. of Employment Sec., 489 U.S. 829 (1989).

(142.) 374 U.S. 398 (1963).

(143.) See id. at 399-401.

(144.) See id. at 403-04.

(145.) See id. at 407.

(146.) See id. at 399 n.2.

(147.) See id. at 407.

(148.) 450 U.S. 707 (1981).

(149.) See id. at 709.

(150.) Id. at 719.

(151.) See id.

(152.) See Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 647 (1974) ("[A]dministrative convenience alone is insufficient to make valid what otherwise is a violation of due process of law."); Frontiero v. Richardson, 411 U.S. 677, 690 (1973) ("`[A]dministrative convenience' is not a shibboleth, the mere recitation of which dictates constitutionality."); Schneider v. New Jersey, 308 U.S. 147, 164 (1939) (holding that an ordinance barring distribution of handbills, though an efficient and convenient way of preventing fraud, violates individual's free speech rights); Nadeau v. Helgemoe, 561 F.2d 411, 417 (1st Cir. 1977) ("[T]he denial of a fundamental right or use of a suspect category cannot be justified by reference to cost or convenience.").

Notably in Bowen v. Roy, the Court found that a social security number requirement was essential for the smooth running of the welfare program, but it did not go as far as to hold that such efficiency was a compelling concern. See Bowen v. Roy, 476 U.S. 693, 709 (1986) ("The social security number requirement clearly promotes a legitimate and important public interest [in detecting and preventing welfare fraud]." (emphasis added)).

(153.) 366 U.S. 599 (1961).

(154.) See id. at 615-16 (Brennan, J., dissenting) ("[T]he Court, in my view, has exalted administrative convenience to a constitutional level high enough to justify making one religion economically disadvantageous.").

(155.) See Sherbert v. Verner, 374 U.S. 398, 407 (1963).

(156.) In addition to tax cases, the Court has consistently found military interests sufficiently compelling to justify governmental impingement on an individual's free exercise interests. In Gillette v. United States, 401 U.S. 437 (1971), the Court upheld a conscription law denying exemptions for those opposed to a particular war for religious reasons. In Goldman v. Weinberger, 475 U.S. 503 (1986), the Court upheld an Air Force regulation that barred an ordained rabbi from wearing a yarmulke while on duty because of the military's interest in maintaining obedience and uniformity. Interestingly, Goldman was later overruled by a federal statute, 10 U.S.C. [sections] 774 (1988), which provided an exemption for religious apparel.

(157.) 455 U.S. 252 (1982).

(158.) See id. at 258-59.

(159.) Id. at 260.

(160.) See id. at 261. A long line of cases following Lee reaffirm the government's compelling interest in ensuring a sound tax system. See Hernandez v. Commissioner, 490 U.S. 680 (1989) (adopting Lee's rationale to uphold the disallowance of income tax deductions for payments made to the Church of Scientology for auditing and training sessions); South Ridge Baptist Church v. Industrial Comm'n of Ohio, 911 F.2d 1203 (6th Cir. 1990) (applying Lee to support state requirement of mandatory participation in workers' compensation program); Droz v. Commissioner, 48 F.3d 1120 (9th Cir. 1995) (refusing to exempt religious objector from self-employment social security taxes on the grounds that such an allowance would threaten the integrity of the tax system).

(161.) 406 U.S. 205 (1972).

(162.) See id. at 234. Cf. Pierce v. Society of Sisters, 268 U.S. 510 (1925) (holding that state compulsory education law was an unreasonable interference with the liberty of the parents to direct the upbringing of their children).

(163.) See Yoder, 406 U.S. at 211.

(164.) See id. at 229.

(165.) See. at 235.

(166.) See id.

(167.) See Fleischfresser v. Directors. of Sch. Dist. 200, 15 F.3d 680 (7th Cir. 1994); Murphy v. Arkansas, 852 F.2d 1039 (8th Cir. 1988) (upholding standardized test requirement for home school students because government had compelling interest in educating all of its citizens); St. Agnes v. Riddick, 748 F. Supp. 319 (D. Md. 1990) (holding that satisfactory physician education was a compelling interest to justify the requirement that religious hospitals teach all residents how to perform abortions). But see Rader v. Johnson, 924 F. Supp. 1540 (D. Neb. 1996) (holding that a college's interest in promoting tolerance among students, fostering diversity, and enhancing students' education with parietal rule of mandatory on-campus housing for freshmen was legitimate, but not sufficiently compelling to justify infringement of student's right to live in an off-campus Christian housing facility).

(168.) 15 F.3d 680.

(169.) See id. at 689.

(170.) See id. at 690.

(171.) See id.

(172.) Even assuming the government has a compelling interest in a particular area of public welfare, the Court will not uphold a law where the government restricts only religious conduct. For example, in Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546-47 (1993), the Court invalidated a ritual slaughter statute despite the government's interest in protecting public health and preventing cruelty to animals because the government failed to "enact feasible measures to restrict other conduct producing substantial harm of the same sort."

(173.) 98 U.S. 145 (1878).

(174.) See id. at 166.

(175.) See id. at 165.

(176.) 321 U.S. 158 (1944).

(177.) See id. at 168-70.

(178.) 366 U.S. 599 (1961).

(179.) See id. at 601-02.

(180.) See id. at 608-09.

(181.) Reynolds, 98 U.S. at 164.

(182.) 319 U.S. 624 (1943).

(183.) See id. at 629-30.

(184.) See id. at 626 n.2. The statute was passed "`for the purpose of teaching, fostering and perpetuating the ideals, principles and spirit of Americanism, and increasing the knowledge of the organization and machinery of the government." Id. at 625 (quoting W. VA. CODE [sections] 174 (1941 Supp.)).

(185.) See id. at 642.

(186.) 367 U.S. 488 (1961).

(187.) See id. at 490.

(188.) See id. at 495.

(189.) Additional support for this proposition can be found beyond the scope of the Free Exercise Clause. What constitutes a compelling state interest in the area of public health, welfare, and safety remains an unsettled issue among the courts under the Free Speech Clause as well. Compare Schenck v. Pro-Choice Network, 519 U.S. 357 (1997) (holding that the government's interest in ensuring public safety and order, promoting the free flow of traffic, and protecting property rights were significant enough to uphold injunction against protestors' activities outside abortion clinics), and Denver Area Educ. Telecomm. Consortium v. FCC, 518 U.S. 727 (1996) (holding that the government's interest in protecting children from exposure to indecent material justified a federal provision permitting cable television operators to prohibit indecent programming on leased channels), with Texas v. Johnson, 491 U.S. 397 (1989) (holding that the State's interest in preserving the American flag as symbol of nationhood and national unity could not justify defendant's conviction for violation of the Texas flag desecration statute), and Riley v. National Fed'n of the Blind of N.C., Inc., 487 U.S. 781 (1988) (holding that the State's interest in protecting charities and the public from fraud was not compelling to justify requirement that professional fundraisers obtain license to solicit funds).

(190.) See Volokh, Intermediate Questions, supra note 133, at 618.

   It would be nice if someone could define what makes an interest
   `compelling.'" But this is a tall order. The Court has never precisely
   defined this term in any of the contexts in which strict scrutiny has been
   applied, and the word might be too complex for any nontautological
   definition to be created.

Id.

(191.) 461 U.S. 574 (1982).

(192.) See id. at 604. In an accompanying footnote, the Court made clear that its holding was limited to the government's goal of eradicating race discrimination in religious schools, but did not extend to churches or other purely religious institutions not engaged in the enterprise of education. See id. at 604 n.29.

(193.) 468 U.S. 609 (1984).

(194.) See id. at 623.

(195.) Id. at 624.

(196.) See id. at 626-27.

(197.) 165 F.3d 692 (9th Cir. 1999).

(198.) The landlords believed that cohabitation between individuals who are not married was the sin of fornication. Were the landlords to rent to unmarried individuals, they would be enabling cohabitation and thereby facilitating sin. See id. at 696.

(199.) See supra note 13 and accompanying text.

(200.) Thomas, 165 F.3d at 692.

(201.) See id. at 715. By contrast, the court noted, the Supreme Court has applied more than rational basis review to Equal Protection claims based upon race and gender. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995); United States v. Virginia, 518 U.S. 515 (1996).

(202.) See Thomas, 165 F.3d at 715 (citing Moore v. City of East Cleveland, 431 U.S. 494 (1977)).

(203.) See id. at 716. The court refused to find that Alaska statutes outlawing such discrimination establish a compelling governmental interest of federal constitutional magnitude. To do so, the court argued, would permit states by statute to opt out of federal constitutional rules. See id. In any event, Alaska law permitted discrimination against unmarried persons in other contexts.

(204.) The handful of state courts that have considered whether prevention of marital-status discrimination is compelling have divided over the issue. Compare State v. French, 460 N.W.2d 2 (Minn. 1990) (plurality opinion) (holding that because the state's interest in eradicating discrimination in rental housing on the basis of marital status was not compelling under the Minnesota Constitution, a landlord could not be found in violation of the state Human Rights Act on account of his religiously based refusal to rent to an unmarried couple) and Attorney General v. Desilets, 636 N.E.2d 233, 240 (Mass. 1994) ("Without supporting facts in the record or in legislative findings, we are unwilling to conclude that simple enactment of the prohibition against discrimination based on marital status establishes that the State has such a substantial interest in eliminatintg that form of housing discrimination that, on a balancing test, the substantial burden on the defendant's free exercise of religion must be disregarded.") with McCready v. Hoffus, 586 N.W.2d 723 (Mich. 1998) (holding that equal access to housing regardless of marital status is a compelling governmental interest) and Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274, 282 (Alaska 1994), cert. denied, 513 U.S. 979 (1994) (holding that the government's interests in providing access to housing for all and preventing acts of discrimination were "of the highest order"). See also Smith v. Fair Employment and Hous. Comm'n, 913 P.2d 909 (Cal. 1966) (finding it unnecessary to resolve whether interest in preventing discrimination on the basis of marital status was compelling because requiring compliance with anti-discrimination act does not burden exercise of religion under RFRA).

The Swanner court applied the less rigorous Smith test in rejecting the landlord's claim under the Free Exercise Clause of the United States Constitution. See Swanner, 874 P.2d at 279-80. In a footnote, the Alaska Supreme Court noted that just before publication of its opinion, Congress passed RFRA. Assuming that RFRA was constitutional and applied to the case, the court observed, the outcome would not be affected because of the court's holding that under the state constitution the government's interest is compelling and there are no less restrictive alternatives to meeting the desired ends. See id. at 280 n.9. Justice Thomas dissented from the Supreme Court's denial of a writ of certiorari in Swanner. See Swanner v. Anchorage Equal Rights Comm'n, 513 U.S. 979 (1994) (Thomas, J., dissenting). Justice Thomas stated that the government s interest in protecting against discrimination on the basis of marital status was not compelling under RFRA because of the absence of any firm national policy barring such discrimination in housing. See Swanner, 513 U.S. at 981.

(205.) The Thomas court found state statutes protecting the class to be irrelevant to the determination of whether there is a national policy barring discrimination against the class of persons protected by that state law. See Thomas, 165 F.3d at 716. It may be argued that the Thomas analysis should not apply to state, as opposed to federal, statutes legislating the compelling interest test. The Thomas court rejected consideration of state statutes because states are not empowered to opt out of federal rights. See id. Obviously this Supremacy Clause issue is not presented where state anti-discrimination statutes are consulted to aid in interpretation of other state, as opposed to federal statutes. On the other hand, where the state religious freedom act incorporates pre-Smith federal constitutional cases, the analysis becomes cloudier, lending further support to the proposition that the legislature should resolve the stature to be afforded anti-discrimination laws on the face of the religion freedom act.

(206.) See Romer v. Evans, 517 U.S. 620 (1996) (applying rational basis to Equal Protection challenge to amendment to Colorado Constitution prohibiting protected status based upon homosexual, lesbian, or bisexual orientation and finding that the amendment failed that standard); Bowers v. Hardwick, 478 U.S. 186 (1986) (holding that a Georgia statute criminalizing sodomy does not violate the fundamental right of homosexuals under the federal Constitution).

(207.) See Protecting Religious Liberty: Hearings on H.R. 1691 Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 106th Cong. (1999) (statement of Christopher E. Anders, Legislative Counsel, ACLU).

(208.) Id. at 7.

(209.) H.R. REP. No. 106-219, at 40 (1999). See also 145 CONG. REC. H5589 (daily ed. July 15, 1999) (statement of Rep. Nadler):

   The bill as drafted would enable the CEO of a large corporation to say, my
   religion prohibits me from letting my corporation hire a divorced person or
   a disabled person or a mother who should be at home with her children and
   not at work or a gay or lesbian person and my religion prohibits me from
   letting my hotel rent a room to any such people.

Id.

The NAACP Legal Defense and Education Fund likewise opposed RLPA because it "would require individuals and groups proceeding under ... state and local anti-discrimination laws to prove that the law they wish to utilize is a least restrictive means of furthering a compelling governmental interest." Id. at H5590 (letter of Elaine R. Jones, Director-Counsel, NAACP Legal Defense and Education Fund, Inc. to Rep. Conyers).

(210.) See Christopher E. Anders & Rose A. Saxe, Effect of a Statutory Religious Freedom Strict Scrutiny Standard on the Enforcement of State and Local Civil Rights Laws, 21 CARDOZO L. REV. 663, 666 (1999) ("[W]ithout any further amendments, RLPA could potentially jeopardize certain civil rights claims in at least some states, and will increase the litigation costs for civil rights plaintiffs even for those claims where a RLPA defense would be unsuccessful."). But see Robert M. O'Neil, Religious Freedom and Nondiscrimination: State RFRA Laws Versus Civil Rights, 23 U.C. DAVIS L. REV. 785 (1999) (arguing that exemptions from state RFRAs for anti-bias laws are unnecessary and unwise).

(211.) A. 1617, 1997-98 Reg. Sess. [sections] 3 (Cal. 1998) (vetoed). Later in the Act, however, the legislature muddied the waters by prescribing that "Nothing in this chapter shall be construed to require that religious liberty claims always prevail over, or always be subordinate to, other civil or constitutional rights." Id.

(212.) TEX. CIV. PRAC. & REM. CODE ANN. [sections] 110.011(a) (West 1999).

(213.) Id. [sections] 110.011(b).

(214.) See 145 CONG. REC. H5597 (daily ed. July 15, 1999). "A person who may raise a claim or defense ... is (1) an owner of a dwelling described in section 803(b) of the Fair Housing Act (42 U.S.C. 3603(b)), with respect to a prohibition relating to discrimination in housing." Id.

(215.) RLPA affords rights "with respect to a prohibition against discrimination in employment" to

   (A) a religious corporation, association, educational institution (as
   described in 42 U.S.C. 2000e-2(e)), or society, with respect to the
   employment of individuals who perform duties such as spreading or teaching
   faith, other instructional functions, performing or assisting in devotional
   services, or activities relating to the internal governance of such
   corporation, association, educational institution, or society in the
   carrying on of its activities; or (B) an entity employing 5 or fewer
   individuals.

Id.

(216.) See id. at H5607.

(217.) The state religious liberty act also may have to resolve whether denying religious exemptions from anti-discrimination laws is the least restrictive means of satisfying the compelling interest. See Anders & Saxe, supra note 210, at 673-75.

(218.) See Turner v. Safley, 482 U.S. 78 (1987); O'Lone v. Shabazz, 482 U.S. 342 (1987).

(219.) 482 U.S. 78 (1987).

(220.) See Safley v. Turner, 586 F. Supp. 589 (W.D. Mo. 1984).

(221.) See Safley v. Turner, 777 F.2d 1307 (8th Cir. 1985).

(222.) Turner, 482 U.S. at 89.

(223.) Id. (quoting Procunier v. Martinez, 416 U.S. 396, 407 (1974)).

(224.) 482 U.S. 342 (1987).

(225.) See id. at 345.

(226.) Shabazz v. O'Lone, 595 F. Supp. 928, 934 (D.N.J. 1984).

(227.) Shabazz v. O'Lone, 782 F.2d 416, 420 (3d Cir. 1986).

(228.) O'Lone, 482 U.S. at 349 (quoting Turner, 482 U.S. at 89).

(229.) See id. at 349 n.2. The Supreme Court identified four factors that are to be considered in assessing whether a prison regulation satisfies the reasonableness test: 1) whether there is a "`valid, rational connection' between the prison regulation and the legitimate governmental interest put forth to justify it."; 2) whether "there are alternative means of exercising the right that remain open" to the inmate; 3) the impact that accommodating the constitutional right will have on guards, other inmates and the allocation of prison resources in general; and 4) whether there are alternatives that accommodate the prisoner's religious liberty at de minimus cost to penological goals. Turner, 482 U.S. at 90-91. The Court made clear that the "absence of ready alternatives" factor is not the same as the "least restrictive alternatives" test that controls where strict scrutiny is employed by the courts. Id. These four factors continue to be applied by lower federal courts entertaining a claim that a prison policy or regulation invades the religious freedom of inmates under the United States Constitution. See In re Long Term Admin. Segregation of Inmates Designated as Five Percenters, 174 F.3d 464, 469-70 (4th Cir. 1999); Spies v. Voinovich, 173 F.3d 398, 403 (6th Cir. 1999); Chirceol v. Phillips, 169 F.3d 313, 316 (5th Cir. 1999).

(230.) See Jolly v. Coughlin, 76 F.3d 468, 475 (2d Cir. 1996); Hamilton v. Schiro, 74 F.3d 1545, 1551-52 (8th Cir. 1996); Hicks v. Garner, 69 F.3d 22, 25-26 (5th Cir. 1995); Werner v. McCotter, 49 F.3d 1476, 1479 (10th Cir. 1995); Bryant v. Gomez, 46 F.3d 948, 949 (9th Cir. 1995) (per curiam).

(231.) The courts, however, did rely upon the absence of any distinction between prisoner and non-prisoner claims in the plain language of RFRA to conclude that the compelling interest test is to apply to prisoner suits under the act. See Jolly, 76 F.3d at 475; Werner, 49 F.3d at 1479; Luckette v. Lewis, 883 F. Supp. 471, 477 (D. Ariz. 1995); Campos v. Coughlin, 854 F. Supp. 194, 205-06 (S.D.N.Y. 1994).

(232.) S. REP. NO. 103-111, at 9 (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1899 (footnote omitted).

(233.) See H.R. REP. NO. 103-88 (1993).

(234.) See S. REP. NO. 103-111, at 9-11, 18-24, reprinted in 1993 U.S.C.C.A.N. at 1898-1901, 1906-12; 139 CONG. REC. S14,468 (1993). Although declining to exempt prisoners from RFRA, the Senate Committee did "expect[] that the courts will continue the tradition of giving due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources." S. REP. NO. 103-111, at 10, reprinted in 1993 U.S.C.C.A.N. at 1898-1900. Courts relied upon this instruction when applying the compelling interest test in the prison context. See Jolly, 76 F.3d at 476; Werner, 49 F.3d at 1476.

RLPA does not exempt prisoners from the Act. However, prisoner litigation under RLPA is subject to the Prison Litigation Reform Act of 1995. See H.R. 1691, 106th Cong. [sections] 4(c) (1999). The Prison Litigation Reform Act requires exhaustion of administrative remedies, 42 U.S.C. [sections] 1997e(a) (1994 & Supp. II 1996); provides for pretrial dismissal of prisoner suits, 42 U.S.C. [sections] 1997e(c) (1994 & Supp. II 1996); limits prospective relief, 18 U.S.C. [sections] 3626(a)(1) (1994 & Supp. II 1998); precludes recovery for mental and emotional injury suffered in custody without a prior showing of physical, injury, 42 U.S.C. [sections] 1997e(e) (1994 & Supp. II 1996); and limits recovery of attorney s fees, 42 U.S.C. [sections] 1997e(d) (1994 & Supp. II. 1996).

(235.) See, e.g., S. 1056, 44th Leg., 1st Reg. Sess. (Ariz. 1999); CONN. GEN. STAT. ANN. [sections] 52-571(b) (1997); FLA. STAT. ANN. [sections] 761.03 (West Supp. 2000); R.I. GEN. LAWS [sections] 42-80.1-3; S. 644, 44th Leg., 1st Sess. (N.M. 1999) (vetoed); A. 1617, 1997-98 Reg. Sess. (Cal. 1998) (vetoed); S.B. 1394, 55th Leg., 2d Reg. Sess. (Idaho 2000).

(236.) H.R. 2370, 90th Leg. [sections] 25(a) (Ill. 1998).

(237.) S. 983, 1999 Reg. Sess. (Conn. 1999). The bill was referred to the Joint Committee on the Judiciary and a public hearing was held on February 4, 1999. The bill went no further and the legislative session ended June 9, 1999.

(238.) H.R. 3158, 113th Reg. Sess. [sections] 2 (S.C. 1999).

(239.) TEX. LOC. GOV'T CODE ANN. [sections] 361.101 (West 1999).

(240.) Compare Lee Boothby & Nicholas P. Miller, Prisoner Claims for Religious Freedom and State RFRAs, 32 U.C. DAVIS L. REV. 573 (1999) and Isaac M. Jaroskiwiz, How the Grinch Stole Chanukah, 21 CARDOZO L. REV. 707 (1999) (state RFRAs should adopt strict scrutiny for prisoner claims of religious freedom) with David Schwarz, Religious Liberty Protection Act: Impact on Religious Services in Prison, 21 CARDOZO L. REV. 795, 796 (1999) ("[I]f enacted, the Religious Liberty Protection Act of 1998 (`RLPA') will produce a negative impact on the proper management, equitable treatment, and good order of religious practices in prisons.").

(241.) 1993 Conn. Public Act No. 93-252.

(242.) CONN. GEN. STAT. ANN. [sections] 52-571b(a) and (b) (West 1999). The statute could be construed as using the state constitution to define when a person's exercise of religion is burdened and as requiring compelling interest as a matter of statutory rather than state constitutional right. The statement of purpose, however, suggests that the aim of the statute was to mandate the compelling interest test as a matter of state constitutional law.

(243.) See Juhnkins v. Branstad, 421 N.W.2d 130 (Iowa 1988); see also Symposium, Separation of Powers in State Constitutional Law, 4 ROGER WILLIAMS U. L. REV. 1 (Fall 1998).

(244.) 421 N.W.2d 130 (Iowa 1988).

(245.) Id. at 135.

(246.) See Gressman, Comedy, supra note 60, at 534-36 (outlining the risk that state RFRAs will contravene state separation of powers doctrine). Somewhat more muddled in their relation to state constitutions are the religious freedom acts passed in Florida, Illinois and South Carolina. As part of the express findings underlying the acts, the legislatures observe that free exercise of religion is an "inalienable right" secured by the state constitution. Unlike the Connecticut statute, however, these acts do not expressly prescribe that the compelling interest test adopted in the statute is to be employed in evaluating religious freedom claims under the state constitution. See H.B. 3201, 1998 Leg. Sess., 100th Reg. Sess. (Fl. 1998); H.B. 2370, 89th Reg. Leg. Sess. (Ill. 1997); H.B. 3158, 113th Reg. Sess. (S.C. 1999). The Arizona and Idaho Acts also are ambiguous as to their impact on interpretation of the state constitution. The legislatures specified that they were exercising the police power "to establish statutory protections that codify and supplement rights guaranteed by the [State] constitutions." S.B. 1391-441R-1 VER, Section 2(A)(5), 44th Leg., 1st Reg. Sess. (Ariz. 1999); S.B. 1394, 55th Leg., 2d Reg. Sess. (Idaho 2000); see also A.B. 1617, [sections] 3, Finding 4, 1997-98 Reg. Sess. (Cal. 1998) (vetoed). The legislature creates no conflict with the state judiciary when it "supplements" rights provided by the state constitution; the effort to "codify" those rights, however, could be viewed as trespassing upon the judiciary's role in interpreting the constitution. See Mary Jean Dolan, The Constitutional Flaws in the New Illinois Religious Freedom Act: Why RFRAs Don't Work, 31 LOYOLA U. CHIC. L.J. 153 (2000).

(247.) See CONN. GEN. STAT. ANN. [sections] 52-571b(b) (West 1999); FLA. STAT. ANN. [sections] 761.05(5) (West 1998); H.B. 2370, [sections] 25(c), 89th Reg. Leg. Sess. (Ill. 1997); H.B. 3158, [sections] 2, 113th Reg. Sess. (S.C. 1999).

(248.) TEX. CIV. PRAC. & REM. CODE ANN. [sections] 110.009(b) (West 1999).

(249.) U.S. CONST. amend. I ("Congress shall make no law respecting an establishment of religion....").

(250.) See City of Boerne v. Flores, 521 U.S. 507, 536-37 (1999) (Stevens, J., concurring).

(251.) The test for neutrality under the Establishment Clause has been in constant flux. See Rebecca Redwood French, From Yoder to Yoda: Models of Traditional, Modern, and Postmodern Religion in U.S. Constitutional Law, 41 ARIZ. L. REV. 49, 50 n.6 (1999) (providing an overview of various tests used for Establishment Clause analysis).

(252.) See Corporation of the Presiding Bishop v. Amos, 483 U.S. 327, 334 (1987) (citing Walz v. Tax Comm'n., 397 U.S. 664, 669 (1970) ("There is ample room under the Establishment Clause for`benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.'") In permitting religious accommodations under the Free Exercise Clause, the Court also has recognized that extending an exemption from a general law "reflects no more than the governmental obligation of neutrality, and does not represent that involvement of religious with secular institutions which is the object of the Establishment Clause to forestall." Thomas v. Review Bd. of the Ind. Employment Sec. Div., 450 U.S. 707, 720 (1981) (citing Sherbert v. Verner, 374 U.S. 398 (1963)); see also Wisconsin v. Yoder, 406 U.S. 205, 220-221 (1971).

(253.) See, e.g., Widmar v. Vincent, 454 U.S. 263 (1981); Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993) (requiring that where the government makes its property available for meetings of nonreligious private groups, it must make property equally available to religious groups).

(254.) See Everson v. Board of Educ., 330 U.S. 1, 15 (1947).

(255.) Although religious accommodations are permissible, numerous state courts have held that a statutory exemption violates the Establishment Clause when it singles out members of a "recognized religion or a religious body. See Davis v. State, 451 A.2d 107, 113 (Md. 1982) (holding that immunization exception for members of "recognized" religion "contravenes ... principle of governmental neutrality regarding different religious beliefs."); Dali v. Board of Educ., 267 N.E.2d 219, 223 (Mass. 1971) (holding that a statute exempting from vaccination requirements those objectors who subscribed to tenets and practices of a recognized church or religious denomination" violates First and Fourteenth Amendments of United States Constitution and state constitution in extending preferential treatment to members of some faiths while denying exemption to others objecting to vaccination on religious grounds). As a drafting measure, state legislatures should avoid using such restrictive language in their religious freedom acts. Wisely, none of the state RFRAs that have passed constitutional scrutiny limited their coverage to just "recognized" religions.

(256.) 343 U.S. 306 (1951).

(257.) Id. at 314.

(258.) Hobbie v. Unemployment Appeals Comm'n., 480 U.S. 136,144-45 (1987).

(259.) See U.S. CONST. art. VI, cl. 3 (requiring all executive, judicial, and legislative officers to support the Constitution "by Oath or Affirmation"). The option of affirmation was added to accommodate adherents of minority faiths that refused to take oaths for religious reasons.

(260.) See 10 U.S.C. [sections] 774 (1994) (allowing accommodation for religious apparel in armed forces); 42 U.S.C. [sections] 1996a(b)(1) (1994) (assuring members of Native American Church the ability to use peyote).

(261.) See statutes cited, supra note 89.

(262.) See Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987) (allowing exemption from federal antidiscrimination laws for religious organizations does not violate Establishment Clause); Gillette v. United States, 401 U.S. 437 (1971) (holding that exemption from military draft for religious conscientious objectors does not violate the Establishment Clause); Walz v. Tax Comm'n, 397 U.S. 664 (1970) (holding that state property tax exemption for religious organizations does not violate the Establishment Clause); Zorach, 343 U.S. 306 (1952) (holding that student exemption from public school to attend daily religious instruction does not violate the Establishment Clause).

(263.) 483 U.S. 327 (1987).

(264.) See id. at 330.

(265.) See id. at 331.

(266.) 403 U.S. 602 (1971).

(267.) See Lemon v. Kurtzman, 403 U.S. 602 (1971). Although Lemon has never been overruled, this test has been heavily criticized and ignored in later opinions, leaving the future of the Lemon test uncertain. See, e.g., Church of Lukumi Babalu Aye, Inc., v. City of Hialeah, 508 U.S. 520 (1993); Lee v. Weisman, 505 U.S. 577 (1992); Edwards v. Aguillard, 482 U.S. 578 (1987); Roemer v. Board of Pub. Works, 426 u.s. 736 (1976). Various members of the Court have proposed modifications to the test and some have questioned the adequacy of the test to govern the entire spectrum of Establishment Clause cases. See Board of Educ. v. Grumet, 512 U.S. 687, 718 (1994) (O'Connor, J., concurring) (holding that "a single test, a Grand Unified Theory that would resolve all the cases that may arise under a particular Clause" should not be the approach of the Court). Recently, in fact, the Court has applied the Lemon test so that its third prong collapses into its second. Thus, it appears that in the future, whether a statute produces excessive government entanglement with religion will be part of the inquiry into its effect. See Agostini v. Felton, 521 U.S. 203 (1997). The Court will have the next opportunity to announce the Establishment Clause test during its review of Helms v. Picard, 151 F.3d 347 (5th Cir. 1998), cert. granted sub nom. Mitchell v. Helms, 119 S. Ct. 2336 (1999); and Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d 806 (5th Cir. 1999), cert. granted, 120 S. Ct. 494 (1999).

(268.) Amos, 483 U.S. at 335.

(269.) Id. at 338.

(270.) 343 U.S. 306 (1951).

(271.) See id.

(272.) See id. at 308-09. Compare with Illinois ex. rel. McCollum v. Board of Educ., 333 U.S. 203 (1948) (invalidating released time program where public classrooms were turned over to religious instructors).

(273.) Zorach, 343 U.S. at 313-14.

(274.) See, e.g., Agostini v. Felton, 521 U.S. 203 (1997); Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993); Witters v. Washington Dep't of Serv., 474 U.S. 481 (1986); Mueller v. Allen, 463 U.S. 388 (1983); Board of Educ. v. Allen, 392 U.S. 236 (1968); Everson v. Board of Educ., 330 U.S. 1 (1946). Cf. Wolman v. Walter, 433 U.S. 229 (1977) (state may constitutionally supply nonpublic schools with books, standardized tests, diagnostic, and remedial services but may not provide funds for instructional material and equipment or field trips); Committee For Pub. Educ. and Religious Liberty v. Nyquist, 413 U.S. 756 (1973) (state funds for maintenance and repair and tuition reimbursement for sectarian schools violates the Establishment Clause).

(275.) Zobrest, 509 U.S. at 8.

(276.) 330 U.S. 1 (1946).

(277.) See id. at 17.

(278.) 392 U.S. 236 (1968).

(279.) See id. at 244.

(280.) Id. at 243-44.

(281.) 463 U.S. 388 (1983).

(282.) See id. at 401.

(283.) See id. at 399.

(284.) See Witters v. Washington Dep't of Serv., 474 U.S. 481, 487-88 (1986). The program, which provided vocational assistance directly to the student, was "in no way skewed towards religion" and "create[d] no financial incentive for students to undertake sectarian education." Id.

(285.) See Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 10 (1993). The service was "part of a general government program that distributes benefits neutrally to any child qualifying as `disabled'" and was available in sectarian schools "only as a result of the private decision of individual parents." Id.

(286.) The Supreme Court has struck down various programs that gave direct grants of government aid, like instructional equipment and materials and maintenance and repair subsidies, because the assistance relieved sectarian schools of costs they otherwise would have borne in educating their students. See Wolman v. Walter, 433 U.S. 229 (1977); Meek v. Pittenger, 421 U.S. 349 (1975); Committee for Pub. Educ. and Religious Liberty v. Nyquist. 413 U.S. 756 (1973). Interestingly, the Court recently overruled two direct aid cases in Agostini v. Felton, 521 U.S. 203 (1997), by allowing public school teachers into parochial schools to provide remedial education to disadvantaged children. But see Board of Educ. v. Grumet, 512 U.S. 687 (1994) (refusing to uphold a law that created a special school district contiguous with a religious community so that the village's handicapped children could receive special education services by public employees). The Agostini Court directly overruled the line of reasoning set out in Aguilar v. Felton, 473 U.S. 402 (1985), and School District of Grand Rapids v. Ball, 473 U.S. 373 (1985), finding no evidence that placing full-time employees on parochial school campuses had an impermissible effect of advancing religion through government inculcation or financial incentives. The Court then reaffirmed its position in Zobrest and Witters that such government assistance was not barred by the Establishment Clause. The Court recently granted review in Mitchell v. Helms, 119 S. Ct. 2336 (1999) (No. 98-1648), to decide whether a program that provides funds to state and local education agencies to purchase and lend neutral, secular materials such as computers, software, and library books to public and nonpublic schools, violates the Establishment Clause.

(287.) Justice Stevens has been the only Justice to suggest that RFRA is a "law respecting an establishment of religion" that violates the First Amendment of the Constitution. City of Boerne v. Flores, 521 U.S. 507, 536 (1997) (Stevens, J., concurring in part).

(288.) See Flores v. City of Boerne, 73 F.3d 1352 (5th Cir. 1996); EEOC v. Catholic Univ., 83 F.3d 455 (D.C. Cir. 1996); Sasnett v. Sullivan, 91 F.3d 1018 (7th Cir. 1996); Mockaitis v. Harcleroad, 104 F.3d 1522 (9th Cir. 1997).

(289.) 141 F.3d 854 (8th Cir. 1998).

(290.) See id. at 857.

(291.) Id. at 862-63. Under analogous facts and analysis, an Idaho court also held that RFRA did not violate the Establishment Clause. See In re Hodge, 220 B.R. 386 (D. Idaho 1998) (emphasizing "the weight of authority arrayed in support of the proposition that RFRA does not violate the Establishment Clause"). But see In re Saunders, 215 B.R. 800, 806 (D. Mass. 1997) (holding that RFRA, as applied to permit tithing in the context of a Chapter 13 plan, violated the Establishment Clause because it favored religion over nonreligion and imposed "a necessity for `continuing surveillance leading to an impermissible degree of entanglement' into the mind and soul of the debtor").

(292.) See Mockaitis, 104 F.3d at 1530.

(293.) See Flores v. City of Boerne, 73 F.3d 1352, 1364 (5th Cir. 1996), rev'd on other grounds, 521 U.S. 507 (1997).

(294.) For detailed arguments for and against the constitutionality of RFRA, see Christopher L. Eisgruber & Lawrence G. Sager, Why the Religious Freedom Restoration Act is Unconstitutional, 69 N.Y.U. L. REV. 437 (1994); Erwin Chemerinsky, Do State Religious Freedom Restoration Acts Violate the Establishment Clause or Separation of Powers?, 32 U.C. DAVIS L. REV. 645 (1999); Thomas C. Berg, The New Attacks on Religious Freedom Legislation and Why They Are Wrong, 21 CARDOZO L. REV. 415, 43343 (1999); Timothy L. Hall, Omnibus Protections of Religious Liberty and the Establishment Clause, 21 CARDOZO L. REV. 539 (1999); Jed Rubendall, Antidisestablishmentarianism: Why RFRA Really Was Unconstitutional, 95 MICH. L. REV. 234 (1997); William Marshall, The Religious Freedom Restoration Act: Establishment, Equal Protection, and Free Speech Concerns, 56 MONT. L. REV. 227 (1995); Scott C. Idelman, The Religious Freedom Restoration Act: Pushing the Limits of Legislative Power, 73 TEX. L. REV. 247, 294 (1994).

(295.) 472 U.S. 703 (1985).

(296.) Id. at 709.

(297.) Id.

(298.) Id. at 710.

(299.) See Eisgruber & Sager, supra note 294.

(300.) See supra notes 255-86 and accompanying text.

(301.) In her concurring opinion in Thornton, Justice O'Connor further observed that the Connecticut statute unconstitutionally singled out adherents to a particular religious belief -- observance of the Sabbath -- for protection and thus signaled government endorsement only of those who share in that belief. See Thornton, 472 U.S. at 711 (O'Connor, J., concurring). Justice O'Connor also noted that the Sabbath law relieved burdens on religion imposed by private, rather than governmental, employers and thus "is not the sort of accommodation statute specifically contemplated by the Free Exercise Clause." Id. at 712.

(302.) 489 U.S. 1 (1988).

(303.) See id. at 5.

(304.) Id. at 17 (citing Corporation of the Presiding Bishop v. Amos, 483 U.S. 327, 348 (1987) (O'Connor, J., concurring in judgment)).

(305.) Id.

(306.) See id. Cf. Walz v. Tax Comm'n, 397 U.S. 664 (1970). The Walz Court upheld a property tax exemption that applied equally to religious properties and real estate owned by a wide array of other nonprofit organizations, despite the sizable tax savings it accorded religious groups. The breadth of the tax exemption in the Walz case was essential to the Court's holding that it was not aimed at establishing, sponsoring, or supporting religion, but rather possessed the legitimate secular purpose and effect of contributing to the community's cultural, intellectual, and moral betterment. See Walz, 397 U.S. at 673. Additionally, the Court found no "sponsorship" or "genuine nexus" between the tax exemption and establishment of religion, because the exemption "restrict[ed] the fiscal relationship between church and state, and tend[ed] to complement and reinforce the desired separation insulating each from the other. Id. at 676.

(307.) Religious Freedom Restoration Act, 42 U.S.C.A. [sections] 2000bb-4 (1994). The House of Representatives mirrored this language when it approved the Religious Liberty Protection Act of 1999, H.R. 1691, 106th Cong. [sections] 6.

(308.) See CONN. GEN. STAT. ANN. [sections] 52-571b(e) (1997); FLA. STAT. ANN. [sections] 761.05(5) (West 1999); H.B. 2370, [sections] 25(c), 89th Reg. Sess. (Ill. 1997); H.B. 3158, [sections] 1-32-60(c)(2) (S.C. 1999); TEX. CIV. PRAC. & REM. CODE ANN. [sections] 110.009(b) (West 1999).

(309.) See S.B. 1391, 44th Leg., 1st Sess. [sections] 41-1493.01(D) (Ariz. 1999); CONN. GEN. STAT. ANN. [sections] 52-571b(c); FLA. STAT. ANN. [sections] 761.03(2) (West 1999); A.B. 1617, 1997-98 Regular Session, [sections] 6402(d) (Cal. 1998) (vetoed); H.B. 2370, 89th Reg. Leg. Sess. [sections] 20 (Ill. 1997); S.C. CODE ANN. [sections] 1-32-50 (S.C. 1999); S.B. 1394, 55th Leg., 2d Reg. Sess. (Idaho 2000).

(310.) 42 U.S.C. [sections] 2000bb-1(c) (1994). The House of Representatives' proposed federal RLPA similarly prescribes the cause of action in general terms, providing that "[a] person may assert a violation of this Act as a claim or defense in a judicial proceeding and obtain appropriate relief against a government." H.R. 1691, [sections] 4(a).

(311.) See 42 U.S.C. [sections] 1988 (1994). The proposed federal RLPA likewise amends 42 U.S.C. [sections] 1988 to include RLPA among the list of civil statutes under which the prevailing plaintiff may be awarded attorney's fees. See H.R. 1691, [sections] 4(b).

(312.) 42 U.S.C. [sections] 1983 (1994).

(313.) See Monroe v. Pape, 365 U.S. 167 (1961).

(314.) See Daniels v. Williams, 474 U.S. 327 (1986); Parratt v. Taylor, 451 U.S. 527 (1981).

(315.) See Baker v. McCollan, 443 U.S. 137, 140 n.1 (1979) ("[T]he state of mind of the defendant may be relevant on the issue of whether a constitutional violation has occurred in the first place, quite apart from the issue of whether [sections] 1983 contains some additional qualification of that nature before a defendant may be held to respond in damages."); Daniels, 474 U.S. 327 (1986) (holding that negligent conduct does not constitute a deprivation within the meaning of the Due Process Clause); Mobile v. Bolden, 446 U.S. 55, 66 (1980) (holding that only purposeful discrimination violated Equal Protection Clause of the Fourteenth Amendment); Estelle v. Gamble, 429 U.S. 97, 106 (1977) (holding the proof of negligence in administering medical care to a prisoner insufficient to state a claim for violation of the Eighth Amendment, and that the prisoner must demonstrate "deliberate indifference to serious medical needs.").

(316.) See Pierson v. Ray, 386 U.S. 547 (1967).

(317.) See Bogan v. Scott-Harris, 523 U.S. 44 (1998) (holding local legislators absolutely immune for legislative activities); Lake Country Estates, Inc. v. Tahoe Reg'l Planning Agency, 440 U.S. 391, 402-06 (1979); Tenney v. Brandhove, 341 U.S. 367 (1954) (holding that state and regional legislators are absolutely immune for legislative acts, whether the relief sought is legal or equitable); see also Supreme Court of Virginia v. Consumers Union of the U.S., 446 U.S. 719, 731-32 (1980) (holding judges immune when performing legislative functions).

(318.) See Mireles v. Waco, 502 U.S. 9 (1991) (per curiam) (holding judge absolutely immune for ordering police to use excessive force to bring defense counsel to courtroom); Stump v. Sparkman, 435 U.S. 349, 359-60 (1978) (holding judges absolutely immune for ordering sterilization of unrepresented minor); Pierson v. Ray, 386 U.S. 547 (1967) (holding judge was absolutely immune for adjudicating Freedom Riders guilty under unconstitutional law). While absolutely immune from suit for all judicial acts within their jurisdiction, absolute immunity may be denied where judges act in a non-judicial capacity. See Forrester v. White, 484 U.S. 219 (1988) (holding no absolute immunity for discriminatory dismissal of probation officer taken in judge's administrative capacity); Supreme Court of Virginia v. Consumers Union of the U.S., 446 U.S. 719 (1980) (holding Virginia Supreme Court not absolutely immune from initiation of disciplinary proceedings taken in court's enforcement capacity).

The Supreme Court held that although absolute immunity extends to suits for damages, it does not shield judges from actions for equitable relief. See Pulliam v. Allen, 466 U.S. 522 (1984). Congress later amended [sections] 1983 to provide "that in any action brought against a judicial officer for any act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable." 42 U.S.C. [sections] 1983 (1994).

Court reporters may not avail themselves of absolute judicial immunity. See Antoine v. Byers, 508 U.S. 429 (1993). On the other hand, police officers are absolutely immune from [sections] 1983 liability founded upon their allegedly perjured testimony in judicial proceedings. See Briscoe v. Lahue, 460 U.S. 325 (1983). But see Malley v. Briggs, 475 U.S. 335 (1986) (holding that police officers are not absolutely immune for causing an unconstitutional arrest by presenting judge with affidavit that fails to establish probable cause).

(319.) See Imbler v. Pachtman, 424 U.S. 409 (1976). Absolute prosecutorial immunity is limited to suits for damages and does not bar [sections] 1983 actions seeking declaratory or injunctive relief. See Supreme Court of Virginia, 446 U.S. at 736-37. Prosecutorial immunity extends to the prosecutor's role as an advocate but does not protect prosecutors in some other situations. See Burns v. Reed, 500 U.S. 478 (1991) (holding that prosecutorial immunity does not shield prosecutors from liability stemming from legal advice given to police officers); Buckley v. Fitzsimmons, 509 U.S. 259 (1993) (holding that prosecutors may be liable for fabricating evidence later presented to the grand jury and for making false statements at a press conference); Kalina v. Fletcher, 522 U.S. 118 (1997) (holding that prosecutors may be liable for including untrue information in a certification for determination of probable cause).

(320.) See Wilson v. Layne, 526 U.S. 603 (1999) (police officers); Procunier v. Navarette, 434 U.S. 555 (1978) (prison officials); Wood v. Strickland, 420 U.S. 308 (1975) (school board members); Scheuer v. Rhodes, 416 U.S. 232 (1974) (governors and other state executive officers); Pierson v. Ray, 386 U.S. 547 (1967) (police officers). But see Richardson v. McKnight, 521 U.S. 399 (1997) (holding that private prison guards are not entitled to assert qualified immunity); Wyatt v. Cole, 504 U.S. 158 (1992) (denying qualified immunity defense to private business partner and his attorney); Tower v. Glover, 467 U.S. 914 (1984) (holding that public defenders have no immunity under [sections] 1983).

(321.) Qualified immunity may not be asserted in actions for equitable relief. See Wood v. Strickland, 420 U.S. 308, 314 n.6 (1975).

(322.) See Wilson, 526 U.S. at 617-18; Anderson v. Creighton, 483 U.S. 635 (1987); Harlow v. Fitzgerald, 457 U.S. 800 (1982). Before 1982, qualified immunity was denied to officials who acted "with malicious intention to cause a deprivation of constitutional rights or other injury." See Wood, 420 U.S. at 322. In Harlow v. Fitzgerald, 457 U.S. 800 (1982), however, the Court abrogated the subjective prong of the immunity defense.

(323.) See Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299 (1986); Carey v. Piphus, 435 U.S. 247 (1978).

(324.) See Smith v. Wade, 461 U.S. 30 (1983).

(325.) See Quern v. Jordan, 440 U.S. 332 (1979); Edelman v. Jordan, 415 U.S. 651 (1974); Ex parte Young, 209 U.S. 123 (1908). To secure prospective relief against a state entity without contravening the Eleventh Amendment, however, the suit must not name the entity as a defendant but instead be filed against a state officer in his official, as opposed to individual, capacity. See Alabama v. Pugh, 438 U.S. 781 (1978) (per curiam).

(326.) "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State...." U.S. CONST. amend. XI. In Hans v. Louisiana, 134 U.S. 1 (1890), the Court held that the Eleventh Amendment bars a suit filed in federal court against a state by its own citizen.

(327.) See Quern v. Jordan, 440 U.S. 332 (1979); Edelman v. Jordan, 415 U.S. 651 (1979). Victims of constitutional wrongs may not recover damages against state entities by bringing their action in state court. While this tactic avoids the bar of the Eleventh Amendment, the Supreme Court held that states are not "persons" within the meaning of [sections] 1983 and thus are not amenable to suit. See Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989).

(328.) See Monell v. Dep't of Social Servs., 436 U.S. 658, 690 n.54 (1978).

(329.) Local governmental entities are not liable for punitive damages. See Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981).

(330.) See Board of County Comm'rs v. Brown, 520 U.S. 397 (1997); City of Canton v. Harris, 489 U.S. 378 (1989); City of St. Louis v. Praprotnik, 485 U.S. 112 (1988); Pembaur v. City of Cincinnati, 475 U.S. 469 (1986); Monell v. Dep't of Social Servs., 436 U.S. 658 (1978).

(331.) See Owen v. City of Independence, 445 U.S. 622 (1980).

(332.) See Abordo v. State of Hawaii, 902 F. Supp. 1220 (D. Haw. 1995).

(333.) See Craddick v. Duckworth, 113 F.3d 83, 85 (7th Cir. 1997); Werner v. McCotter, 49 F.3d 1476, 1481-82 (10th Cir. 1995); Show v. Patterson, 955 F. Supp. 182, 194 (S.D.N.Y. 1997); Tinsley v. Pittari, 952 F. Supp. 384, 389-92 (N.D. Tex. 1996); Jones-Bey v. Wright, 944 F. Supp. 723, 739 (N.D. Ind. 1996); Harless v. Darr, 937 F. Supp. 1339, 1351 (S.D. Ind. 1996); Gilmore-Bey v. Coughlin, 929 F. Supp. 146, 150-51 (S.D.N.Y. 1996); Haff v. Cooke, 923 F. Supp. 1104, 1116 (E.D. Wis. 1996); Abordo, 902 F. Supp. at 1229; Muslim v. Frame, 897 F. Supp. 215 (E.D. Pa. 1995).

(334.) See Harless, 937 F. Supp. at 1347-49; Abordo, 902 F. Supp. at 1228 n.6.

(335.) See Commack Self-Service Kosher Meats v. New York, 954 F. Supp. 65 (E.D.N.Y. 1997); Gilmore-Bey, 929 F. Supp. at 149-50; Abordo, 902 F. Supp. at 1228; Rust v. Clarke, 851 F. Supp. 377, 380-81 (D. Neb. 1994).

(336.) See Maine v. Thiboutot, 448 U.S. 1, 5 (1980). However, a plaintiff will not be allowed to redress a statutory violation by suing under [sections] 1983 if "(1) `the statute [does] not create enforceable rights, privileges, or immunities within the meaning of [sections] 1983,' or (2) `Congress has foreclosed such enforcement of the statute in the enactment itself.'" Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (alteration in original) (quoting Wright v. Roanoke Redevelopment & Hous. Auth., 479 U.S. 418, 423 (1987).

(337.) See Williams v. Norris, 176 F.3d 1089 (8th Cir. 1999); Craddick, 113 F.3d 83; Jones-Bey, 944 F. Supp. 723 (N.D. Ind. 1996); Abordo, 902 F. Supp. at 1223; Muslim, 897 F. Supp. 215.

(338.) In other instances, the plaintiffs did not expressly rely upon [sections] 1983 as the basis of the civil action but instead brought their civil claim directly under RFRA. See Show, 955 F. Supp. 182; Gilmore-Bey, 929 F. Supp. 146. In these cases, the courts never explained their rationale for borrowing standards of liability and defenses from [sections] 1983 for purposes of RFRA. It is arguable that Congress did not intend to incorporate the rules governing an 1871 statute when it enacted RFRA well over a century later. See Gary S. Gildin, Dis-Qualified Immunity for Discrimination Against the Disabled, 1999 U. ILL. L. REV. 897.

(339.) See Davis v. Scherer, 468 U.S. 183 (1984).

(340.) Three of the state religious freedom acts venture beyond the generic language of RFRA to offer guidance as to the elements of the claim, defenses, and remedies. The Rhode Island Religious Freedom Restoration Act specifies that in a civil action under the Act, "the court may (1) Afford injunctive and declaratory relief against any governmental authority which proposes to commit a violation of this chapter; and (2) Award a prevailing plaintiff damages." R.I. GEN. LAWS [sections] 42-80.1-4 (1993). This language does not clarify whether entity defendants may be held vicariously liable nor does the legislation specify what immunities may be asserted by individual officers or entities sued under the Act. Furthermore, the Act does not mention whether punitive damages and attorney's fees are recoverable by the prevailing plaintiff. The vetoed New Mexico Religious Freedom Restoration Act utilizes similar threshold language but includes provisions waiving entity and individual immunity and authorizing recovery of reasonable attorney's fees. See S.B. 644, 44th Leg., 1st Sess. [sections] 4 (N.M. 1999) (vetoed). The cause of action for damages and waiver of immunity, however, is limited by provisions of the New Mexico Tort Claims Act a) permitting a governmental entity and public employee to assert any defense available under New Mexico Law, N.M. STAT. ANN. [sections] 41-4-14 (Michie 1996); b) capping the amount of actual damages recoverable, [sections] 41-4-19(A) (Michie 1996); and c) barring recovery of exemplary damages, [sections] 41-4-19(B) (Michie 1996). The Texas act makes the entity the exclusive defendant and waives sovereign immunity. See TEX. CIV. PRAC. & REM. CODE ANN. [subsections] 110.005(d) and 110.008(a) (West 1999). The act authorizes an award of reasonable attorney's fees, limits compensatory damages to $10,000 for each controversy, regardless of the number of religious adherents injured, and precludes recovery of punitive damages. See id. [subsections] 100.005 (a)(3)-(4), (b). No civil action for damages may be brought unless the aggrieved party gives notice of the alleged violation of the Act and the government agency has not alleviated the burden on religion within sixty days. See id. [sections] 110.006.

(341.) 330 U.S. 1 (1947).

(342.) Id. at 64-65.

(343.) McGowan v. Maryland, 366 U.S. 420, 437 (1961); see also Committee for Pub. Educ. and Religious Liberty v. Nyquist, 413 U.S. 756, 770 n.28 (1973).

GARY S. GILDIN, Professor of Law, The Dickinson School of Law of the Pennsylvania State University. B.A., University of Wisconsin (1973); J.D., Stanford Law School (1976). The author thanks Shannon Chase and Lisa Wampler for their invaluable research assistance.