The Federal District Court and the Court of Appeals



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.


Federal District District Court Fourteenth Amendment Free Exercise Legislative Branch 
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  1. 5.
    80 U.S. 128 (1871). It is discussed in J. Richard Doidge, “Is Purely Retroactive Legislation Limited by the Separation of Powers? Rethinking United States v. Klein,” Cornell Law Review 79 (1993): 910–74.Google Scholar
  2. 17.
    For more detail, see Matt Pawa, “When the Supreme Court Restricts Constitutional Rights Can Congress Save Us? An Examination of Section 5 of the Fourteenth Amendment,” University of Pennsylvania Law Review 141 (1993): 1029–01, esp. 1062–70; and Douglas Laycock, “RFRA, Congress, and the Ratchet,” Montana Law Review 56 (1995): 145–70.Google Scholar
  3. 21.
    The internal quotation is from Marci A. Hamilton, “The Religious Freedom Restoration Act: Letting the Fox into the Henhouse under Cover of Section 5 of the Fourteenth Amendment,” Cardozo Law Review 16 (1994): 366. Note that Hamilton refers only to federal power.Google Scholar

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© Jerold Waltman 2013

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