The Religious Freedom Restoration Act: Letting the Fox Into the Henhouse Under Cover of Section 5 of the Fourteenth Amendment

The Religious Freedom Restoration Act ("RFRA") has now been in effect for over a year. RFRA is an understandable, but unconstitutional, attempt to supplement the contemporary Supreme Court's crabbed reading of the Free Exercise Clause. In a nutshell, RFRA sets the standard of review-the "compelling interest" test-to be applied to federal and state law burdening the free exercise of religious conduct. RFRA has already been employed to decide a series of cases, most of which were brought by prison inmates.

The time rapidly approaches when the courts of appeals, and even the Supreme Court, will be asked to pass on its constitutionality. This Essay focuses upon Congress's constitutional power to enact RFRA, or more properly, the lack thereof.