Justice O’Connor’s Dilemma: The Baseline Question

JUSTICE O’CONNOR’S DILEMMA: THE BASELINE QUESTION

SUZANNA SHERRY•

Many commentators view City of Boerne v. Flores,1 in which a divided Supreme Court struck down the Religious Freedom Res toration Act of 1993 (RFRA),2 as a major defeat in the battle for religious freedom in the United St ates.3 Be that as it may, Flores is also an opportunity to begin a discussion on another issue entirely: the appropriate relationship between dissenting Justic es and majority opinions. Should a Justice who disagrees with a majority of the Court nevertheless accept the majority’s holding as defining the law for purposes of establishing a baseline for subsequent questions?

THE BASELINE DILEMMA

In order to understand the question I will address, some brief background on Flores is necessary. Prior to 1990, the Supreme Court interpreted the Free Exercise Clause of the Constitu tion-applicable to the states through the Fourteenth Amend ment-to require the government to accommodate religious beliefs by granting exemptions to those with religious objections to generally applicable laws, unless the government could show

Earl R. Larson Professor of Civil Rights and Civil Liberties Law, University of Minnesota. I would like to thank Jim Chen, Jack Cound, Paul Edelman, Dan Farber, Phil Frickey, and Barry Friedman for helpful comments on earlier drafts, and Betsey Buckheit, Minnesota J.D., 1999, for research assistance.

1. 117 S. Ct. 2157 (1997).

2. 42 U.S.C. §§ 2000bb to 2000bb-4 (1994).

3. A few,