In my opinion, the Religious Freedom Restoration Act of 1993 (RFRA) is a “law respecting an establishment of religion” that violates the First Amendment to the Constitution.
If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an enlargement of the structure. Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law. Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment. Wallace v. Jaffree, 472 U.S. 38, 52—55 (1985).
I haven’t thought about the matter before, but this argument seems legitimate.
Sasha points out that if so, “the solution isn’t necessarily to invalidate RFRA. It could be to extend RFRA to apply to deeply held secular convictions, as Justice Harlan suggested in his concurrence in the result in Welsh v. United States (1970).”
Here’s a position paper on the RFRA from the Secular Coalition For America.
- I say “from,” but technically, the quote isn’t “from” Stevens’ concurrence – it is his entire concurrence. [↩]