Indiana Law Review Volume 29 1995 Number 1 ARTICLES "By What Right?": The Sources and Limits of Federal Court and Congressional Jurisdiction Over Matters "Touching Religion" Robert A. Destro* Table of Contents Table of Contents 1 Introduction 4 I. The Binding Nature of the Federal Vision 8 A. Introduction 8 B. The Nature of the Judicial Interest 11 II. A "Structural Evaluation of Texas Monthly, Inc. v. Bullock and Employment Division v. Smith 14 A. The Nature of the Legislative Interest 14 B. Texas Monthly, Inc. v. Bullock: Navigating the Space Between Scylla and Charybdis 16 1. Construing Constitutional Norms: Should the Analysis of First Amendment Issues be Categorical or Integral? 17 2. Characterization and Categorical Analysis: Which Clause Controls?. 19 a. Establishment or free exercise? 19 b. Religion or speech and press? 22 3. The Structural Implications of Categorical Analysis 22 a. What is the judicial role? 22 b. What is the legislative role? 26 c. Employment Division v. Smith: Whither free exercise? ... 27 (i) Characterization and the facts of Smith 28 (ii) Characterizing the constitutional issues presented in Smith 29 (iii) Relating norm to structure: the limits of legislative power after Smith 32 III. Liberty, Democracy and the Mechanics of Incorporation 36 A. Which Clause?: Due Process or Privileges and Immunities? 36 1. Due Process or Privileges and Immunities? The Structural Implications 37 * Associate Professor of Law and Director of the Interdisciplinary Program in Law & Religion, Columbus School of Law, The Catholic University of America, Washington, D.C. Commissioner, United States Commission on Civil Rights, 1983-89; B.A., Miami University, 1972; J.D., University of California, Berkeley, 1975. .. 1 INDIANA LAW REVIEW [Vol. 29: 2. Due Process or Privileges and Immunities? The Substantive Implications 42 B. "Structural Incorporation" : Weighing the Impact of the Text and Structure of the Fourteenth Amendment on the Religious Liberty Norms Incorporatedfrom the First Amendment 48 1 Relating the Religious Liberty Norms of the First Amendment to the Equal Citizenship and Protection Norms of the Fourteenth .... 49 2. "Neutrality" or Non-Discrimination: Importing the Debate Over "Intent" vs. "Effects" into the Jurisprudence of the Religion Clause . 53 3. Relating Norm to Structure: The Power to Relieve Governmentally-Imposed Burdens on Religious Practice 54 4. Structuralism and the Debate within the Rehnquist Court 57 IV. State and Federal Legislative Efforts to Protect and Define the Scope of Religious Liberty 59 A. Limiting the Role of State Legislatures: The Curious Case of Kiryas Joel 60 1 Accommodating Religious and Cultural Differences via Legislation: Distinguishing Neutrality, Non-Discrimination, and Equal Protection 62 a. "Neutrality toward religion" 62 b. Equal protection: is Kiryas Joel segregated or is it a religious gerrymander? 64 (i) Is Kiryas Joel a religious gerrymander? 64 (ii) Was there a legislative intent to segregate? 65 2. Taking a Structural Approach: Do Courts Have Exclusive Jurisdiction to Accommodate? 66 B. Statutory Protection for Religious Liberty: What is the Role of Congress 68 1. Introduction: The "Religious Freedom Restoration Act" 68 2. The Power of Congress to Define and Enforce the Fourteenth Amendment: The Relationship Between Section Five and Section One 68 a. Katzenbach v. Morgan: The Fourteenth Amendment and separation of powers 72 (i) Equal Protection or Privileges and Immunities? 75 (ii) The power to define the equal protection norm 77 b. Oregon v. Mitchell 79 (i) Justice Harlan: The Fourteenth Amendment as defined by the intent of its framers 81 (ii) Justice Black: The Fourteenth Amendment and "structural" federalism 82 (iii) Justice Stewart, Chief Justice Burger, and Justice Blackmun: The Fourteenth Amendment and the legislative jurisdiction of Congress 84 .. " 1995] JURISDICTION OVER RELIGION (iv) Justices Brennan, White, Marshall, and Douglas: The Fourteenth Amendment as a grant of plenary federal authority 85 C. Congress and the Power to Make Laws "Respecting an Establishment of Religion or Prohibiting the Free Exercise thereof. 88 1 Does the Text of the Constitution Expressly Reserve for the States Legislative Jurisdiction over Matters "Respecting" Religion and Religious Establishments? 90 2. Does the Constitution, Read Without Regard to the Fourteenth Amendment, Grant Congress Power to Legislate with Respect to Establishments of Religion and the Permissible Scope of Free Exercise by Individuals and Groups, thus Requiring that the Express Powers of Congress be Read Together with the Reserved Powers of the States in Order to Define the Appropriate Spheres of Federal and State Power? 91 3. Does the Amended Constitution Contain Other, More Generalized, Authorizing or Prohibiting Norms Which Might Fairly be Construed to Limit Either the Power of the States, or that of the Federal Government, with Respect to "Establishments of Religion" and Laws "Prohibiting the Free Exercise Thereof? 91 4. Given that the Religion Clause has now been "Incorporated" by Judicial Decree, to what Extent Should the Fourteenth Amendment be Interpreted to Authorize Preemptive Federal Policy-Making, Either by Congress or the Court, with Respect to Religious Liberty? 92 D. What is the Role of the Court in Protecting Religious Liberty? 93 1 Evaluating Claims of Special Competence and Limited Judicial Supremacy 93 2. Judicial Power: The Relationship of a Structural Inquiry to the Working Definition of Religious Liberty 96 E. locating the Power to Preserve Religious Liberty: RFRA in Context ... 98 Conclusion 99 [T]he fact that the Court rules in a case . that a given program is constitutional, does not necessarily answer the question whether, in a broader sense, it actually is.' 1. Earl Warren, The Bill ofRights and the Military, 37 N.Y.U. L. Rev. 181, 193 (1962). Many thanks to Louis Fisher, Ph.D., of the Library of Congress Congressional Research Service, whose helpful comments, and reference to this quotation, were instrumental in bringing this phase of my research into the structure of the religious liberty guarantee to a close. This point is discussed at length in Mr. Fisher's book, American Constitutional Law (2d ed. 1995). I would also like to acknowledge all those others including my research assistants, who will remain nameless for fear of forgetting one or another, whose comments, criticisms and encouragement led me to conclude that the question: "Who left the Court in charge?" was not only a legitimate 1 INDIANA LAW REVIEW [Vol. 29: Introduction For nearly fifty years it has been apparent that, for all practical purposes, federal judges claim a de facto "revisory" power over both federal and state policy on the subject of religious freedom, including the sensitive topic of church-state relations. Until the United States Supreme Court rendered its 1990 decision Employment Division v. Smith,^ it seems largely to have been assumed that this is simply the "way it is" or, perhaps more accurately, "the way it should be." The Court's decision in Smith, however, changed all this—at least insofar as the Free Exercise Clause^ was involved. Almost immediately, it became an article of faith among most advocates of religious liberty that Smith was wrongly decided and that the rule announced in the case should not be followed."* State courts were urged to read the religious liberty provisions of their respective state constitutions more broadly than the Court had read the Free Exercise Clause in Smith.^ More importantly. Congress was urged to "restore" the constitutional status quo that prevailed prior to Smith by enacting legislation pursuant to its power under Section Five of the Fourteenth Amendment.^ The Religious Freedom Restoration Act of 1993 (RFRA)' was the result of that effort. RFRA contains explicit congressional "findings" to the effect that the Supreme Court's Free Exercise Clause jurisprudence is no longer adequate to protect religious liberty, and that its prior case law provided "a workable test for striking sensible balances between religious liberty and competing prior governmental interests."* The Supreme one, but an under-appreciated one as well. 2. 494 U.S. 872 (1990). 3. U.S. Const, amend. I. 4. See, e.g., Steven D. Smith, The Rise and Fall ofReligious Freedom in Constitutional Discourse, 140 U. Pa. L. Rev. 149, 231-33 (1991) (referring to Smith as "the virtual abandonment of the Free Exercise Clause," "reach[ing] a low point in modem constitutional protection under the Free Exercise Clause," and "leav[ing] the Free Exercise Clause without independent constitutional content and thus, for practical purposes, largely meaningless"); Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. Chi. L. Rev. 115, 140 (1992) ("Smith converts a constitutionally explicit liberty into a nondiscrimination requirement, in violation of the most straightforward interpretation of the First Amendment text."); Douglas Laycock, Summary and Synthesis: The Crisis in Religious Liberty, 60 Geo. Wash. L. Rev. 841, 841 (1992) (summarizing a symposium of ten articles and finding that "[n]o one in this symposium takes seriously the possibility that Employment Division v. Srhith might be defensible."). 5. See, e.g.. People v. DeJonge, 501 N.W.2d 127 (Mich. 1993); Forth v. Roman Catholic Diocese, 532 N.W.2d 195, 199 (Mich. Ct. App. 1995) (declining to do so, but stating that the Michigan view was more in accordance with Justice O'Connor's concurring opinion in Smith); State v. Hershberger, 462 N.W.2d 393, 397 (Minn. 1990); First Covenant Church v. City of Seattle, 840 P.2d 174 (Wash. 1992) (Utter, J., concurring). See generally James A. Gardner, The Failed Discourse of State Constitutionalism, 90 Mich. L. Rev. 761 (1992) (arguing that state courts have not developed an independent jurisprudence of state constitutional law). 6. U.S. Const, amend. XIV, § 5. 7. 42 U.S.C. §§ 2000bb to 2000bb-4 (Supp. V 1993). 8. Id. § 2000bb(a)(5). The fmdings state that: (a) Findings — — 1995] JURISDICTION OVER RELIGION Court, however, remains unmoved by these findings.^ These are important developments, both legally and politically.