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stricter Sherbert standard, providing broader protection than the federal First Amendment
after Smith, and eliminating the need for any state-level RFRA.40
Yet the legal battle continued. In 1997, in City of Boerne v. Flores, the Supreme Court
struck down RFRA as applied to state and local governments, on the theory that it
exceeded the federal government’s power under the Fourteenth Amendment to enforce
civil rights protections. The court faulted RFRA for two main reasons. First, it was too
broad in application, covering every area of law rather than targeting certain problem
areas. Second, RFRA was unsupported by any legislative record that might indicate a need
for heightened protection of religious exercise. (Importantly, the rationale of Boerne did
not prevent RFRA from being applied to the federal government, and in 2006 the
Supreme Court applied RFRA with force to block a federal drug prosecution
in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal.)
Congress went back to the drawing board with these principles in mind, and the result was
the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). The statute
was narrower in scope—covering only zoning and prison regulations that burdened
religious exercise—and was supported by a substantial legislative record indicating that
religious discrimination and excessive burdens on religious exercise were widespread in
those areas of law.

RLUIPA elicited a series of constitutional challenges, none of which have succeeded to
date. In 2005, in a unanimous decision written by Justice Ruth Bader Ginsburg, the
Supreme Court in Cutter v. Wilkinson resoundingly rejected an Establishment Clause
challenge to the prison provisions of RLUIPA. The theory of the challenge was that laws
specially deregulating religion and religion alone represent an impermissible benefit to
religion. But as the court explained, if this understanding of the Establishment Clause
prevailed, “all manner of religious accommodations would fall.” And as Justice William O.
Douglas wrote in Zorach v. Clauson (1952), not only are such accommodations
permissible, but the government in providing them “follows the best of our traditions,”
because it “respects the religious nature of our people and accommodates the public
service to their spiritual needs.”
The ability of citizens to secure religious accommodations through the political branches
thus remains secure, and continues to serve as an indispensable bulwark of religious
freedom in the United States. But this is not a complete solution to the problem. Due to
the nature of the political process, only those religious accommodations that earn the
support of a majority will be enacted by the political branches. So in practice, the
substantial withdrawal of the judiciary from the business of religious accommodation
operates to the disadvantage of religious minorities, i.e., those who are both more likely to
have idiosyncratic needs and less likely to have the political muscle necessary to secure a
legislative or executive accommodation.
Moreover, the minorities that suffer for lack of judicial intervention are not only national
minorities, but local ones. Of course, religious groups that are minorities both nationally
and locally are worst off under Smith. But religious groups that are well-represented
nationally routinely find themselves unable to secure political exceptions to religiously
burdensome state or local laws because they are politically weak in those particular places.
In this way, Smith hurts religious minorities all of the time and larger groups some of the
time.

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