St. Mary's Law Journal


David S. Stolle


In Employment Division, Department of Human Resources of Oregon v. Smith, the U.S. Supreme Court held the traditional compelling state interest standard for Free Exercise Clause jurisprudence should be replaced by a new test requiring a statute or government action to be facially neutral and generally applicable. In response to Smith, Congress, relying on its Enforcement Clause powers under the Fourteenth Amendment, attempted to resurrect the compelling state interest standard by passing the Religious Freedom of Restoration Act (RFRA). In June 1999, the Texas legislature passed the Texas Religious Freedom Restoration Act (TRFRA). This Comment argues the TRFRA is unnecessary legislation which violates the Establishment Clause of the First Amendment. Part II discusses the background and evolution of the principles dominating First Amendment jurisprudence concerning both the Establishment Clause and the Free Exercise Clause. Part III reviews the history of the RFRA from its inception in 1993 to its 1997 demise in City of Boerne v. Flores. Part III also presents the TRFRA of 1999. Part IV analyzes the Fifth Circuit’s decision in Doe v. Santa Fe Independent School District, which held invocations and benedictions at public high school graduation ceremonies must be nonsectarian and nonproselytizing in order to satisfy the First Amendment Establishment Clause separation between church and state. Part V discusses the conflict between the TRFRA of 1999 and the Fifth Circuit’s holding in Doe regarding school prayer at graduation ceremonies, concluding the Act is an unconstitutional infringement of the Establishment Clause. Part V also analyzes the TRFRA from a policy standpoint, concluding the Act is inappropriate and bad public policy. Finally, Part VI suggests both national and state governments should allow the U.S. Supreme Court’s Free Exercise doctrine to develop under Smith, as opposed to continuing attempts at reestablishing the compelling state interest standard.


St. Mary's University School of Law