Last week, we discussed (https://wp.me/pecX6i-4CB) Sherbert (1963), Smith (1990), and the Religious Freedom Restoration Act (RFRA). States that violated RFRA could be sued in federal court. Congress used its 14th Am Sec 5 powers to abrogate state sovereign immunity. But in City of Boerne v Flores (1997), SCOTUS held Congress lacked the power to enact RFRA, saying Congress’ enforcement powers under Sec 5 could only “remedy” constitutional violations of Sec 1 (of 14th Am) *as Sec 1 had been interpreted by SCOTUS.* What does this mean? SCOTUS held it is their decision in Smith “and not RFRA which must control.” Meaning that Congress can’t give citizens real tools to fight back when states violate their rights. The only “win” for liberty in Flores is that although SCOTUS held RFRA could NOT be used against states, it could be used against Federal Gov’t action. Why? They held Congress could limit its own powers as a means to provide greater protection for the free exercise of religion.

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