Eugene Volokh:
I’ve recently heard some people argue that the Religious Freedom Restoration Act of 1993 — which the Supreme Court applied in Hobby Lobby — violates the separation of powers. Not long after RFRA was enacted, several scholars took the same view. But I think this is mistaken.
1. Congress disagreeing with the Supreme Court: One version of the argument is that (to oversimplify a bit) the Supreme Court is the ultimate interpreter of the Constitution, and Congress is not allowed to disagree with it. And indeed, in City of Boerne v. Flores (1997), the court rejected that RFRA applied to state and local governments. The federal government defended the law on the grounds that Congress could, under section 5 of the 14th Amendment, define the constitutional rights protected by the 14th Amendment against states and localities more broadly than the court has. The court — in an opinion agreed to in relevant part both by the five conservative justices and Justices John Paul Stevens and Ruth Bader Ginsburg — argued that:
Congress’ power under § 5 … extends only to “enforc[ing]” the provisions of the Fourteenth Amendment. The Court has described this power as “remedial.” The design of the Amendment and the text of § 5 are inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment’s restrictions on the States. Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is. It has been given the power “to enforce,” not the power to determine what constitutes a constitutional violation. Were it not so, what Congress would be enforcing would no longer be, in any meaningful sense, the “provisions of [the Fourteenth Amendment].”
But all this came up only because Congress was trying to control state and local government action in a vast range of fields, something that it has no express power to do except through Section 5 of the 14th Amendment; that section, the court held, doesn’t give Congress broad power to go beyond the protections that the court has recognized.
As to the federal government, RFRA is justified by very different powers — essentially, by the powers under which the original federal action (from which an exception is sought) is justified. Drug laws have been held to be justified under the Commerce Clause and the Necessary and Proper Clause; RFRA exemptions from drug laws, as in Gonzales v. O Centro (2006), would be limits on the exercise of those powers, justified under those powers (i.e., we don’t want to regulate commerce in drugs when that unnecessarily interferes with religious practice). The Affordable Care Act has been held to be justified under the power to regulate commerce and the power to tax and provide for the general welfare; RFRA exemptions from the regulations implemented under that act would be limits on the exercise of those powers, justified under those powers (i.e., we don’t want to regulate commerce in labor and compensation for the labor when that unnecessarily interferes with religious practice).
And the fact that Congress adopted by statute something that the court refused to adopt as a matter of constitutional command doesn’t matter. As the Eighth Circuit held in In re Young (8th Cir. 1998) (one of many circuit decisions that rejected separation-of-powers arguments against RFRA),
While Congress cannot, through ordinary legislation, amend the Court’s authoritative interpretation of the Constitution, “congressional disapproval of a Supreme Court decision does not impair the power of Congress to legislate a different result, as long as Congress had that power in the first place.” United States v. Marengo County Comm’n, 731 F.2d 1546, 1562 (11th Cir.1984); see also Flores, 117 S.Ct. at 2171 (“When Congress acts within its sphere of power and responsibilities, it has not just the right but the duty to make its own informed judgment on the meaning and force of the Constitution. This has been clear from the early days of the Republic.”). Congress has often provided statutory protection of individual liberties that exceed the Supreme Court’s interpretation of constitutional protection. See, e.g., Privacy Protection Act of 1980, 42 U.S.C. §§ 2000aa to 2000aa–12 (reacting to Zurcher v. Stanford Daily, 436 U.S. 547 (1978), and providing journalists with greater protection against searches and seizures); National Defense Authorization Act for Fiscal Years 1988 and 1989, § 508, 10 U.S.C. § 774 (reacting to Goldman v. Weinberger, 475 U.S. 503 (1986), and providing that members of military were entitled to wear religious headgear); cf Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) (reacting to Geduldig v. Aiello, 417 U.S. 484 (1974), and equating employment discrimination based on pregnancy with employment discrimination based on gender).
So after RFRA, the constitutional rule under the Free Exercise Clause remains as the court set it forth inEmployment Division v. Smith (1990): religious objectors generally have no Free Exercise Clause right to exemptions from generally applicable laws. But the statutory rule under RFRA is as Congress set it forth: religious objectors do have such a statutory right — just as people may lack constitutional protection from searches and seizures of newsrooms, from military rules restricting headgear, and from governmental discrimination based on pregnancy, but have such statutory protection.
2. Congress mandating a rule that the court has concluded is unadministrable: What about the fact that Employment Division v. Smith (1990) condemned the strict scrutiny test in religious exemption cases? Here is the language from Smith that is sometimes cited in connection with this (emphasis added):
