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ARTICLE CONTENTS
[Pages 723-759]
TOP OF ARTICLE
Introduction
I. Legislative History and Context
A. Sherbert and Smith: A Supreme Court Free Exercise Doctrine in Tension
B. The Religious Freedom Restoration Act and City of Boerne: A Fight for the Last Word with Federalism Implications
II. Is the Act Constitutional?
A. Congressional Authority Under the Spending Clause
B. Congressional Authority Under the Commerce Clause
C. Congressional Authority Under Section Five of the Fourteenth Amendment
D. A Record of Avoidance: How Have Lower Courts Handled the
Question of the RLUIPA’s Constitutionality?
III. Analysis: Even If the RLUIPA Can Pass Constitutional Muster, Is the Statute Beneficial?
A. The Risk of “Constitutional Atrophy” to Free Exercise Jurisprudence
B. After Smith, Is There Room for Judicial Creativity?
C. Hybrid Rights Theory: The Exception That Threatens to
Swallow the Smith Rule
D. Does the RLUIPA Hinder or Enhance These Opportunities
for Judicial Creativity?
IV. Comment: RLUIPA’s Effect on the Struggle for and Attainment of Religious Freedom
A. Is Legislation the Correct Tool to Address the Problem
of Religious Intolerance?
B. Another Way in Which the Act May Be Unnecessary: Does the
Land Use Activity the RLUIPA Seeks to Protect Fall Within
One of the Many Exemptions of Smith?
Conclusion
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