Jennifer Dorton


Although the Religious Liberty Protection Act appears, on its face, to be simple, there are many constitutional issues which call into question the validity of the proposed bill. This note will focus on the constitutional problems of using Congress' commerce and spending powers to protect religion. It will examine the problem of attaching religious conditions to the States' receipt of federal funds, and the potential problem that may result from using the spending power to protect religious exercise. The note then turns to the commerce clause justification for the RLPA. It will point out the major flaw in using the commerce clause to protect religious exercise, namely, that religions with little or no commercial component will not be protected by the RLPA. It will also look at the problem of reconciling the RLPA and the Establishment Clause, which prohibits Congress from passing laws "respecting religion." The note will examine a key case in the Establishment Clause area, Larson v. Valente. It will point out that by protecting those religions that affect commerce, and not those that do not, the RLPA is, in effect, a law respecting the establishment of religion. The note will then turn to the effect that the RLPA will have on civil rights laws, and the possible unintended consequences of the RLPA. Finally, this note will consider the RLPA's predecessor, the RFRA, as it relates to Congress' power to enforce constitutional rights under section five of the Fourteenth Amendment."