Actually, the Establishment Clause arguments were live in Boerne. We briefed them and several of the Justices expressed concerns at oral argument. What happened is that now-Judge Jeff Sutton, arguing for the state of Ohio, urged the Justices not to reach the Establishment Clause issue on the ground that the states might want to enact state religious liberty statutes. My interpretation of the decision(s) is that he succeeded in persuading all of the other Justices but Stevens, that it was not necessary and potentially problematic to reach an Establishment Clause holding; such a ruling would clearly be dictum in light of the federalism, separation of powers, and Article V defects in RFRA. Marci In a message dated 4/11/2011 8:35:58 A.M. Eastern Daylight Time, stevenja...@gmail.com writes:
Boerne is not an establishment case. Nor is it an equal protection case. It is a federalism case protecting state power from federal interference under section 5 of the 14th amendment -- congress must make findings that the state is engaging in serious misbehavior (I know -- too loose a word choice here) before the federal government can act against the state to enforce the substantive provisions of the 14th Amendment -- and even if it makes the requisite findings, the action taken must be congruent and proportional to the harm exposed. In Boerne, RFRA was a sledge hammer to solve either a non-existent problem or on that should have been swatted with a fly swatter instead. So Boerne is not an establishment clause case. Of course Stevens' concurrence is just that -- a concurrence -- and does not create the rule of the case. Can I reconcile the reasoning of the concurrence with the decision in O Centro --yes, but only because one (Boerne) had protected activity (free exercise) and the other (O Centro) did not (drug use).
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