A Response to Professor Rubenfeld

Professor Jed Rubenfeld has offered in these pages an ingenious explanation for why the Supreme Court was right to strike down the Religious Freedom Restoration Act (RFRA) in City of Boerne v. Flores. Rubenfeld finds in the First Amendment's Establishment Clause a historical and inherent principle he calls "antidisestablishmentarianism": a prohibition on acts of Congress that "disestablish" religion in the several states. Rubenfeld reads the Establishment Clause as proscribing not only congressional acts that "establish" religion but also all congressional acts that "dictate a position on religion for states," including laws designed to ensure that states abide by the requirements of the Free Exercise Clause. RFRA was unconstitutional, Rubenfeld argues, because it transgressed this principle.

As the title of his Article suggests, Rubenfeld's explanation is so ingenious, in fact, that it did not even occur to the Justices who signed the Boerne majority opinion.