The Federal District Court and the Court of Appeals

Abstract

When Marci Hamilton, who had been engaged to represent the city, rose for her oral argument at the Supreme Court, she began by saying, “This case is not about religious liberty. This case is about Federal power.”¹ She was right, of course, and it had been so since the city had challenged the constitutionality of the Religious Freedom Restoration Act (RFRA) before Judge Bunton and he had set aside all other issues. To be sure, religious liberty issues occasionally surfaced in the arguments of opposing counsel, but only in the context of whether Congress had adduced enough evidence to justify a remedial statute based on section 5. It was, simply put, separation of powers and federalism that were now determinative.