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Conditional Federal Spending: A Back Door to Enhanced Free Exercise Protection |
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Kimberly Sayers-Fay |
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| The Supreme Court’s decision in
Employment Division v. Smith eroded free exercise
protection by announcing that neutral, generally
applicable laws burdening free exercise do not
have to meet the compelling interest test.
Rather, rational basis scrutiny applies to all
but "hybrid rights." Intent on restoring the stricter standard, Congress passed the Religious Freedom Restoration Act of 1993 (RFRA). After it failed to pass constitutional muster, Congress has continued to search for other ways to enhance free exercise protection. This Comment suggests a spending-based strategy to do exactly that. It argues that by attaching carefully crafted conditions to a host of fed-eral spending programs, Congress could accomplish some, but not all, of RFRA’s objectives. Pre-cisely because conditioning federal funds is not novel, this inherently inefficient approach may ultimately prove to be the most effective. |
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Copyright
© 2000 by California Law Review, Inc. |
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