Smith v. Fair Employment & Housing Commission

MOSK, J., Concurring.

I generally concur in the opinion prepared by Justice Werdegar. I largely join in its analysis. I fully join in its disposition: except as to the vacation of the *1180 award of damages for emotional distress, the judgment of the Court of Appeal must be reversed.

I write separately to consider the Religious Freedom Restoration Act of 1993 (hereafter sometimes RFRA), which is codified as section 2000bb et seq. of title 42 of the United States Code, and its applicability to this cause. I would not reach the question whether petitioner’s defense under the statute is meritorious on its own terms. Rather, for the reasons stated below, I would simply hold that the statute itself is without effect as violative of the United States Constitution.

I

In pertinent part, the First Amendment declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” By their terms, these so-called “religion clauses”— individually the establishment and free exercise clauses—bind Congress and, by extension, the federal government generally—and bind them alone (see Barron v. Baltimore (1833) 32 U.S. (7 Pet.) 243, 247-250 [ 8 L.Ed. 672, 674-675 ]). They are made applicable against state legislatures and, by extension, state governments generally through incorporation in the due process clause of the Fourteenth Amendment. (Cantwell v. Connecticut (1940) 310 U.S. 296, 303 [ 84 L.Ed. 1213, 1218 , 60 S.Ct. 900 , 128 A.L.R 1352].) They do not so much grant the individual any rights in the religious sphere as limit government from even entering therein. In other words, they do not so much empower the individual as render government altogether “incompetent.” (Ibid.)

In Employment Div., Ore. Dept. of Human Res. v. Smith (1990) 494 U.S. 872 [ 108 L.Ed.2d 876 , 110 S.Ct. 1595 ] (hereafter sometimes Smith), the United States Supreme Court concluded that government action prohibits the free exercise of religion in violation of the First Amendment whenever it seeks to bar an individual from holding or professing whatever religious belief he chooses. It also concluded that government action imposes the same prohibition whenever it seeks to bar an individual from engaging in religious conduct, whether consisting of performance of religiously prescribed acts or abstention from religiously proscribed acts, solely because such conduct is religious. It concluded, however, that government action does not impose that prohibition if it is neutral and of general applicability and merely happens to prevent an individual from engaging in religious conduct.

Thus, under Smith , the First Amendment’s free exercise clause may be spoken of as effectively granting the individual an absolute right to hold and *1181 profess whatever religious belief he chooses. It may also be spoken of as effectively granting the individual an absolute right to engage in religious conduct immune from intentionally invidious government action. But in no sense does it grant the individual any right to engage in such conduct exempt from neutral and generally applicable government action.

In the course of its analysis, the Smith court, in deed if not in word, abandoned the so-called “compelling government interest” test, which had been used in decisions such as Sherbert v. Verner (1963) 374 U.S. 398 [ 10 L.Ed.2d 965 , 83 S.Ct. 1790 ] (hereafter Sherbert), and Wisconsin v. Yoder (1972) 406 U.S. 205 [ 32 L.Ed.2d 15 , 92 S.Ct. 1526 ] (hereafter Yoder), for determining claims and defenses relating to exemption from neutral and generally applicable government action based on the First Amendment’s free exercise clause. (See Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 U.S. at pp. 882-890 [108 L.Ed.2d at pp. 887-893].) That test “requir[ed] the government to justify any substantial burden on” the exercise of religion “by a compelling [government] interest and by means narrowly tailored to achieve that interest.” (Id. at p. 894 [ 108 L.Ed.2d at p. 896 ] (conc, opn. of O’Connor, J.); accord, id. at p. 883 [ 108 L.Ed.2d at p. 888 ].)

The Smith court all but declared the “compelling government interest” test to be “utterly unworkable” because its application would lead courts to attempt to go beyond their judicial powers in order to pass on questions that are ultimately religious. (Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 U.S. at p. 888, fn. 4 [ 108 L.Ed.2d at p. 891 ].)

The Smith court made plain that the threshold inquiry under the “compelling government interest” test into whether government action “substantially burdens” an individual’s exercise of religion required judges to look not only to the character of the particular action but also to the nature of the specific religious conduct. (See Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 U.S. at pp. 887-888, fn. 4 [108 L.Ed.2d at pp. 891-892].) The former they could do. The latter not. For they would be compelled to consider—explicitly or implicitly—the “centrality” of the conduct in question and/or the “centrality” of the underlying belief. (Ibid.) “There is” simply “no way out of the difficulty . . . .” (Id. at p. 888, fn. 4 [ 108 L.Ed.2d at p. 891 ].) But “[i]t is no more appropriate for judges to determine the ‘centrality’ of religious beliefs before applying a ‘compelling interest’ test in the free exercise field, than it would be for them to determine the ‘importance’ of ideas before applying the ‘compelling interest’ test in the free speech field. What principle of law or logic can be brought to bear to contradict a believer’s assertion that a particular act is ‘central’ to his personal faith? Judging the centrality of different religious practices is akin to the unacceptable ‘business of evaluating the relative merits of differing religious claims.’ *1182 [Citation.] . . . ‘[I]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.’ ” (Id. at pp. 886-887 [ 108 L.Ed.2d at p. 891 ].) “ ‘Constitutionally significant burden’ ”—a paraphrase of “substantial burden”—“would seem to be ‘centrality’ under another name.” (Id. at pp. 887-888, fn. 4 [ 108 L.Ed.2d at p. 891 ].) “[I]nquiry into ‘severe impact’ ”—another paraphrase of “substantial burden”—“is no different from inquiry into centrality. [It] . . . merely substitute^] for the question ‘How important is X to the religious adherent?’ the question ‘How great will be the harm to the religious adherent if X is taken away?’ There is no material difference.” (Id. at p. 888, fn. 4 [108 L.Ed.2d at pp. 891-892].) In a word, inquiry into whether government action “substantially burdens” an individual’s exercise of religion unavoidably entails an inquiry into religion.

Forgoing both praise of Smith and condemnation—each is available in sufficient amount, especially the latter (compare, e.g., Marshall, In Defense of Smith and Free Exercise Revisionism (1991) 58 U. Chi. L.Rev. 308 [defending Smith’s result], with, e.g., McConnell, Free Exercise Revisionism and the Smith Decision (1990) 57 U. Chi. L.Rev. 1109 [attacking Smith])— we would do well to isolate what is at the heart of its analysis.

Put simply, Smith speaks about the judiciary as an institution and its lack of competence in matters of religion, whether going to an individual’s religious belief or his religious conduct.

The Smith court did not deny the limitations the First Amendment’s free exercise clause imposes on government or the rights it effectively grants to individuals. It simply construed both more narrowly than it had previously. Neither did it bar claims or defenses arising from the limitations or rights in question. It merely abandoned a tool for use as to the claims and defenses at issue—a tool it had itself fabricated—namely, the “compelling government interest” test.

To repeat: Smith speaks about the judiciary as an institution and its lack of competence in matters of religion.

The word the Smith court uttered reaches back more than a century to the landmark church property decision in Watson v. Jones (1872) 80 U.S. (13 Wall.) 679 [ 20 L.Ed. 666 ] (hereafter sometimes Watson)—a federal common law decision that its progeny, including Presbyterian Church v. Hull Church (1969) 393 U.S. 440 [ 21 L.Ed.2d 658 , 89 S.Ct. 601 ] (hereafter sometimes Presbyterian Church), and Serbian Orthodox Diocese v. Milivojevich (1976) 426 U.S. 696 [ 49 L.Ed.2d 151 , 96 S.Ct. 2372 ] (hereafter sometimes Serbian *1183 Orthodox Diocese), recognize as declaring the law under the First Amendment. 1

It is simply this: “ ‘[CJivil courts,’ ” whether federal or state, “ ‘must be incompetent judges of matters of faith, discipline, and doctrine; and . . . , if they should be so unwise as to attempt to supervise their judgments on matters which come within their jurisdiction, would only involve themselves in a sea of uncertainty and doubt which would do anything but improve either religion or good morals.’ ” (Watson v. Jones, supra, 80 U.S. (13 Wall.) at p. 732 [20 L.Ed. at pp. 677-678].) This is surely true when they consider the lone man or woman who follows a path without any companions—and who is no less worthy of solicitude for that reason (see Thomas v. Review Bd., Ind. Empl. Sec. Div. (1981) 450 U.S. 707, 715-716 [ 67 L.Ed.2d 624, 632-633 , 101 S.Ct. 1425 ]). But it is true as well when they regard hierarchical communities. For “[i]t is not to be supposed that [they] can be as competent in the . . . religious faith of all these bodies as the ablest men in each are in reference to their own.” (Watson v. Jones, supra, 80 U.S. (13 Wall.) at p. 729 [ 20 L.Ed. at p. 677 ].)

To quote Presbyterian Church: “[T]he First Amendment forbids civil courts from” “determining] matters at the very core of a religion—the interpretation of particular church doctrines and the importance of those doctrines to the religion.” (Presbyterian Church v. Hull Church, supra, 393 U.S. at p. 450 [ 21 L.Ed.2d at p. 666 ].)

To quote Serbian Orthodox Diocese : “[T]he general rule” under the First Amendment is that “religious controversies”—and indeed, religious questions of any sort—“are not the proper subject of civil court inquiry . . . .” (Serbian Orthodox Diocese v. Milivojevich, supra, 426 U.S. at p. 713 [ 49 L.Ed.2d at p. 165 ].)

This is not to deny that a court might be tempted to believe itself competent in at least some religious matters and under at least some circumstances. Yet it must not yield. The essence of religion is to go beyond the *1184 bounds of reason. (See, e.g., Thomas v. Review Bd., Ind. Empl. Sec. Div., supra, 450 U.S. at p. 714 [ 67 L.Ed.2d at p. 631 ] [stating that “religious beliefs need not be . . . logical, consistent, or comprehensible ... in order to merit First Amendment protection”].) Judges in our polity may not follow.

II

Proceeding from the Constitution, we now turn to the Religious Freedom Restoration Act of 1993. A brief review of the statute is in order.

Section 1 of RFRA gives the statute’s short title, which of course is the “Religious Freedom Restoration Act of 1993.”

Section 2 of RFRA states Congress’s findings and declares the statute’s purposes. (42 U.S.C. § 2000bb.) Subsection (a) sets out the findings: “(1) the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution”; “(2) laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise”; “(3) governments should not substantially burden religious exercise without compelling justification”; “(4) in Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion”; and “(5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” (42 U.S.C. § 2000bb(a).) Subsection (b) announces the purposes: “(1) to restore the compelling interest test as set forth in Sherbert v. Vemer, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and [<JD (2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government.” (42 U.S.C. § 2000bb(b).)

Section 3 of RFRA contains the statute’s basic rule, the exception thereto, and the form of judicial relief. (42 U.S.C. § 2000bb-l.) Subsection (a) is the rule: “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability . . . .” (42 U.S.C. § 2000bb-l(a).) Subsection (b) is the exception: “Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person” “(1) is in furtherance of a compelling governmental interest,” and “(2) is the least restrictive means of furthering that compelling governmental interest.” (42 U.S.C. *1185 § 2000bb-l(b).) Subsection (c) concerns judicial relief: “A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. . . .” (42 U.S.C. § 2000bb-l(c).)

Section 4 of RFRA amends certain existing statutory provisions to authorize courts and administrative agencies to award attorney fees to the prevailing party, other than the United States, in any action or proceeding in enforcement.

Section 5 of RFRA provides the following definitions: “(1) the term ‘government’ includes a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, a State, or a subdivision of a State”; “(2) the term ‘State’ includes the District of Columbia, the Commonwealth of Puerto Rico, and each territory and possession of the United States”; “(3) the term ‘demonstrates’ means meets the burdens of going forward with the evidence and of persuasion”; and “(4) the term ‘exercise of religion’ means the exercise of religion under the First Amendment to the Constitution.” (42 U.S.C. § 2000bb-2.)

Section 6 of RFRA contains provisions relating to the statute’s coverage and meaning. Subsection (a) declares that the statute “applies to all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after” its enactment. (42 U.S.C. § 2000bb-3(a).) Subsection (b) lays down as a rule of construction that “[fjederal statutory law adopted after” the statute’s enactment “is subject to” the act “unless such law explicitly excludes such application by reference” thereto. (42 U.S.C. § 2000bb-3(b).) Subsection (c) states that “[n]othing in” the statute “shall be construed to authorize any government to burden any religious belief.” (42 U.S.C. § 2000bb-3(c).)

Lastly, section 7 of RFRA provides that “[n]othing in” the statute “shall be construed to affect, interpret, or in any way address that portion of the First Amendment prohibiting laws respecting the establishment of religion . . . .” (42 U.S.C. § 2000bb-4.)

When we construe RFRA, as we must, within its full context (e.g., People v. Swain (1996) 12 Cal.4th 593, 616-617 [ 49 Cal.Rptr.2d 390 , 909 P.2d 994 ] (conc. opn. of Mosk, J.); see, e.g., Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 673 [ 47 Cal.Rptr.2d 108 , 905 P.2d 1248 ] (conc. opn. of *1186 Mosk, J.)), which includes the First Amendment, Sherbert, Yoder, and Smith , 2 we arrive at the following conclusions.

First, RFRA recognizes the First Amendment’s absolute limitation against government’s “burden[ing]” (RFRA § 6(c), 42 U.S.C. § 2000bb-3(c)) an individual’s exercise of religion to the extent that it involves religious belief (Compare RFRA § 3(b), 42 U.S.C. § 2000bb-l(b) [stating that “government may substantially burden a person’s exercise of religion,” albeit only if it satisfies the “compelling government interest” test (italics added)], with RFRA § 6(c), 42 U.S.C. § 2000bb-3(c) [stating that “[n]othing in” the statute “shall be construed to authorize any government to burden any religious belief (italics added)].) It thereby recognizes the First Amendment’s effective grant to the individual of an absolute right to hold and profess whatever religious belief he chooses. 3

Second, RFRA imposes a limitation against government’s “substantially burdening]” (RFRA § 3(a), 42 U.S.C. § 2000bb-l(a)) an individual’s exercise of religion to the extent that it involves religious conduct. It thereby effectively grants the individual a right to engage in such conduct unencumbered with such a burden.

Third, RFRA creates an exception from the limitation it imposes on government and the right it effectively grants to the individual against any “substantial burden” on the latter’s exercise of religion. The exception requires government to “demonstrate!] that application of [such a] burden to the” specific religious conduct “(1) is in furtherance of a compelling governmental interest” and “(2) is the least restrictive means of furthering that compelling governmental interest.” (RFRA § 3(b), 42 U.S.C. § 2000bb-1(b).)

Fourth, the thus-qualified limitation RFRA imposes on government and the thus-qualified right it effectively grants to the individual against any *1187 “substantial burden” on the latter’s exercise of religion are statutory. (SenJRep. No. 103-111, 1st Sess., pp. 2 & 14, fn. 43, supra, reprinted in 1993 U.S. Code Cong. & Admin. News, at pp. 1893 & 1904, fn. 43 [speaking of a “statutory prohibition”]; H.R.Rep. No. 103-88, 1st Sess., p. _, supra] [speaking of a “statutory right”].) 4

Fifth, the terms whereby RFRA imposes a limitation on government and effectively grants a right to the individual as to the latter’s exercise of religion, and creates an exception to such limitation and right, are not defined by reference to the world at large, but are rather conduits for definition through the judicial process in light of pertinent pre-Smith federal court decisions. (See RFRA § 2(a)(5) & (b)(1), 42 U.S.C. § 2000bb(a)(5) & (b)(1).) 5

Sixth, RFRA applies to, and thereby displaces pro tanto, all other law and its implementation, whether federal or state, statutory or otherwise, coming before its enactment or after (RFRA § 6(a), 42 U.S.C. § 2000bb-3(a)), with the sole exception of any future federal statute explicitly excluding itself from its coverage (RFRA § 6(b), 42 U.S.C. § 2000bb-3(b)). 6

Seventh, and most fundamental, all that RFRA is and all that it does depend on a threshold inquiry by a court into whether government action “substantially burdens” an individual’s exercise of religion. (RFRA § 2(b)(1), 42 U.S.C. § 2000bb(b)(l); see RFRA § 3(a) & (b), 42 U.S.C. § 2000bb-l(a) & (b); see also RFRA § 2(a)(5), 42 U.S.C. § 2000bb(a)(5).) It simply adopts that inquiry from pertinent pre-Smith federal court decisions. *1188 (See RFRA § 2(b)(1), 42 U.S.C. § 2000bb(b)(l); RFRA § 2(a)(5), 42 U.S.C. § 2000bb(a)(5).)

III

We may presently address the question with which we are here concerned: Is RFRA violative of the United States Constitution and therefore without effect?

Our starting point is, as it must be, the Constitution itself and its fundamental principles. Through the organic law, as Chief Justice Marshall explained in Marbury v. Madison (1803) 5 U.S. (1 Cranch) 137, 176 [ 2 L.Ed. 60, 73 ] (hereafter sometimes Marbury), the people have ordained a government that is limited in its authority and, to that end, have delegated certain specified powers to each of its branches—legislative powers to the Congress, executive powers to the President, and judicial powers to the Supreme Court and any such inferior courts as Congress might establish.

What we call the principle of separation of powers, to quote the Supreme Court in INS v. Chadha (1983) 462 U.S. 919, 951 [ 77 L.Ed.2d 317, 345 , 103 S.Ct. 2764 ] (hereafter sometimes Chadha), seeks “to assure, as nearly as possible, that each Branch of government would confine itself to its assigned responsibility.” “[It] was not simply an abstract generalization in the minds of the Framers: it was woven into the document that they drafted . . . .” (Buckley v. Valeo (1976) 424 U.S. 1, 124 [ 46 L.Ed.2d 659, 747 , 96 S.Ct. 612 ] (per curiam).)

Clearly, the principle of separation of powers is violated if any of the branches of government “exceed[s] the outer limits of its [own] power . . . .” (INS v. Chadha, supra, 462 U.S. at p. 951 [ 77 L.Ed.2d at p. 345 ].) So held the Supreme Court in Chadha . There, Congress had, in effect, unconstitutionally attempted to empower each of its houses individually, by resolution, to invalidate a decision by the Attorney General, acting pursuant to authority it had delegated, to allow a particular deportable alien to remain in the United States. It could indeed invalidate such a decision. But it had to pass a bill by majority vote in each of its houses together, present it to the President, and, if he disapproved, repass it by two-thirds vote in each of its houses together.

The principle of separation of powers is also violated if any of the branches of government causes another to exceed the outer limits of its power. So held the Supreme Court in Marbury . There, through a provision of the Judiciary Act of 1789, Congress had, in effect, unconstitutionally attempted to empower the Supreme Court to issue writs of mandamus to *1189 federal officers. The issuance of such a writ would have amounted to the exercise of original jurisdiction. The Supreme Court’s original jurisdiction, however, extends under clause 2 of section 2 of article III of the United States Constitution only to “Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party . . . .” Similar is Lujan v. Defenders of Wildlife (1992) 504 U.S. 555 [ 119 L.Ed.2d 351 , 112 S.Ct. 2130 ] (hereafter sometimes Lujan). There, through a so-called “citizen-suit” provision in the Endangered Species Act of 1973, Congress had, in effect, unconstitutionally attempted to empower the federal courts to entertain actions by persons seeking to vindicate the public interest in the Secretary of the Interior’s compliance with the statute, without regard to whether such actions were “Cases” or “Controversies” as required by clause 1 of section 2 of article III, and without regard to whether such persons had standing as demanded by that provision. The “citizen-suit” provision would have given to the federal courts the power under section 3 of article II to “take Care that the Laws be faithfully executed”—which belongs only to the President. “It would [have] enable[d] the courts, with the permission of Congress, ‘to assume a position of authority over the governmental acts of another and co-equal department,’ [citation], and to become ‘ “virtually continuing monitors of the wisdom and soundness of Executive action.” ’ ” (Lujan v. Defenders of Wildlife, supra, 504 U.S. at p. 577 [ 119 L.Ed.2d at p. 375 ].)

In my view, the principle of separation of powers is violated here. Through RFRA, Congress has, in effect, unconstitutionally attempted to empower the courts, state as well as federal, to pass on religious questions.

In undertaking to apply RFRA and its “compelling government interest” test, a court would have to make a threshold inquiry into whether government action “substantially burdens” an individual’s exercise of religion.

To do so, the court would have to take each of the following three steps. If it omitted any one, it would fail in its analysis.

First, the court would have to identify the particular government action that is asserted to cause the “substantial burden.” It is surely fit to the task. It need do no more than look to the applicable official prescription or proscription.

Second, the court would have to ascertain the individual’s specific religious conduct that is asserted to suffer the “substantial burden.” Here, it would begin to experience difficulties. It would have to judge whether he is sincere: such protection as he may be due is based on his religion, not *1190 another’s (cf. Thomas v. Review Bd., Ind. Empl. Sec. Div., supra, 450 U.S. at pp. 715-716 [67 L.Ed.2d at pp. 632-633] [impliedly holding as much under the First Amendment’s free exercise clause]). It would also have to judge whether his conduct is religious: such protection as he may be due is based on his religion, nothing else (cf. id. at p. 713 [67 L.Ed.2d at pp. 630-631] [expressly holding as much under the First Amendment’s free exercise clause]). To assess his sincerity would be hard. (E.g., Lupu, Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion (1989) 102 Harv. L.Rev. 933, 954-957 (hereafter Lupu).) To assess the religiousness of his conduct would be harder still. Such a “determination”—to understate the matter—“is more often than not a difficult and delicate task . . . .” (Thomas v. Review Bd., Ind. Empl. Sec. Div., supra, 450 U.S. at p. 714 [ 67 L.Ed.2d at p. 631 ].) How could it be otherwise? The religious belief underlying such conduct “need not be . . . logical, consistent, or comprehensible . . . .” (Ibid.) Finally, the problems inherent in evaluating his sincerity are exacerbated because they must be resolved in the context of the religiousness of his conduct: the question is not whether he is sincere in the abstract, but whether he is sincere in his religion. (Lupu, supra, 102 Harv. L.Rev. at pp. 956-957.)

Third and last, the court would have to decide whether the particular government action “substantially burdens” the individual’s specific religious conduct.

The court could not simply accept either the individual’s assertion or the government’s denial of the requisite “substantial burden.” Otherwise, it would run the risk of either allowing the individual “to become a law unto himself’ (Reynolds v. United States (1879) 98 U.S. (8 Otto) 145, 167 [ 25 L.Ed. 244, 250 ]) or letting government act with impunity—results that are antithetical to the RFRA Congress’s stated purpose of “striking sensible balances” between the parties (RFRA § 2(a)(5), 42 U.S.C. § 2000bb(a)(5), italics added).

Rather, the court would have to determine whether the particular government action “substantially burdens” the individual’s specific religious conduct. To do so, as Smith makes plain, the judge would have to look not only to the character of the government action but also to the nature of the specific religious conduct. As Smith also makes plain, although he could do the former, he could not do the latter. For how could he even speak of a “substantial burden” unless he were to compare what we may call the “weight” of the government action in relation to the “bearing capacity” of the religious conduct? And how could he do that unless he were to pass on religious questions?

It could not persuasively be argued that a court’s inquiry into whether government action “substantially burdens” an individual’s exercise of religion does not entail an inquiry into religion. Whatever the appearances *1191 might have been before Smith—an inquiry into religion was deemed avoidable—the reality afterward is to the contrary—it is not. So held the very court that devised the inquiry: to determine “substantial burden”—whether under its own name or under such paraphrases as “constitutionally significant burden” or “severe impact”—implicates determining the “centrality” of religious conduct and/or the “centrality" of the underlying religious belief. (Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 U.S. at pp. 887-888, fn. 4 [108 L.Ed.2d at pp. 891-892].) But that is “‘not within the judicial ken. . . .’ ” (Id. at p. 887 [ 108 L.Ed.2d at p. 891 ].) On this point, of course, the Smith court is the final authority. The RFRA Congress simply adopted what it found in the pertinent pre-Smith federal court decisions. What it found, however, was an inquiry that extends—unavoidably—into religion. It did not even purport to limit that inquiry, as by renouncing “centrality,” in an effort to salvage its constitutionality. That is the end of the matter.

Neither could it persuasively be argued that the judiciary’s lack of competence in matters of religion has somehow been removed. The RFRA Congress took no steps in that direction. Had it done so, it would have faltered. For it is itself altogether “incompetent.” (Cantwell v. Connecticut, supra, 310 U.S. at p. 303 [ 84 L.Ed. at p. 1218 ].) To be sure, it evidently believed that the courts possessed whatever power they needed. But the Smith court was of the opposite view. In such a dispute, as Marbury and Lujan demonstrate, the court must prevail.

It may be noted that one commentator has argued that the “strongest reading of . . . Smith is that it may verge on unconstitutional for a court to inquire into the substantiality of an alleged burden on religious exercise.” (Idleman, The Religious Freedom Restoration Act: Pushing the Limits of Legislative Power (1994) 73 Tex. L.Rev. 247, 273.)

In light of the foregoing, I am compelled to conclude that the best reading of Smith is stronger still: for a court to so inquire is in fact unconstitutional. 7

*1192 IV

In sum, I am of the view that, except as to the vacation of the award of damages for emotional distress, the Court of Appeal’s judgment must be reversed.

In his dissenting opinion in Jones v. Wolf (1979) 443 U.S. 595 [ 61 L.Ed.2d 775 , 99 S.Ct. 3020 ], Justice Powell explained, without contradiction by the majority, that Watson had “announced” only “principles of general federal law,” since it had been “decided at a time when the First Amendment was not considered to be applicable to the States through the Fourteenth Amendment, and before Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) [ 82 L.Ed. 1188 , 58 S.Ct. 817 , 114 A.L.R. 1487 ], made state law applicable in diversity cases,” including Watson itself. (Jones v. Wolf, supra, 443 U.S. at p. 617, fn. 4 [ 61 L.Ed.2d at p. 793 ] (dis. opn. of Powell, J.).) Citing Presbyterian Church and Serbian Orthodox Diocese , he went on to state, again without contradiction by the majority, that those “principles” “are now regarded as rooted in the First Amendment, and are applicable to the States through the Fourteenth Amendment.” (Jones v. Wolf, supra, 443 U.S. at p. 617, fn. 4 [ 61 L.Ed.2d at p. 793 ] (dis. opn. of Powell, J.).)

As with all other statutes, RFRA’s full context includes its legislative history. (E.g., Sen.Rep. No. 103-111,1st Sess. (1993), reprinted in 1993 U.S. Code Cong. & Admin. News, at pp. 1892-1912; H.R.Rep. No. 103-88, 1st Sess. (1993).) And as with all others, such legislative history amounts only to context, and should never be treated as though it were text: “For a statute, as it were, is a complete integration. Within its scope, it is the final and exclusive statement by the legislative body of its intent, superseding all prior and contemporaneous expressions and implications, not only those that are directly contrary but even those that are altogether consistent. Perhaps more accurately, it is the legislative body’s final and exclusive enactment, displacing all terms and conditions of whatever sort that could, would, or might, have been passed.” (Kopp v. Fair Pol. Practices Com., supra, 11 Cal.4th at pp. 672-673, original italics (conc. opn. of Mosk, J.).)

RFRA does not purport to allow judicial relief from any “burden” on an individual’s exercise of religion to the extent that it involves religious belief. (See RFRA § 3(c), 42 U.S.C. § 2000bb-l(c).)

“A statute,” of course, “cannot amend the Constitution.” (Pennsylvania v. Union Gas Co. (1989) 491 U.S. 1, 24 [ 105 L.Ed.2d 1, 22 , 109 S.Ct. 2273 ] (conc. opn. of Stevens, J.).) RFRA does not even purport to do so. Certain language in its legislative history to the effect that Congress’s purpose was “to overturn the Supreme Court’s decision in Smith’’ (Sen.Rep. No. 103-111, 1st Sess., p. 12, supra, reprinted in 1993 U.S. Code Cong. & Admin. News, at p. 1902; accord, H.R.Rep. No. 103-88,1st Sess., p___ supra) need not, and should not, be taken literally. (See H.R.Rep. No. 103-88, 1st Sess., p___ fn. 3, supra] [“[T]he label ‘restoration’ in this context is inappropriate. Congress writes laws—it does not and cannot overrule the Supreme Court’s interpretation of the Constitution and thus it is unable to ‘restore’ a prior interpretation of the First Amendment.”].)

By contrast, the terms whereby the American Indian Religious Freedom Act Amendments of 1994 imposes a limitation on government and effectively grants a right to the individual as to the latter’s exercise of religion are in fact defined by reference to the world at large. (American Indian Religious Freedom Act Amendments of 1994, § 2(b)(1), 42 U.S.C. § 1996a(b)(l) [“Notwithstanding any other provision of law, the use, possession, or transportation of peyote by an Indian for bona fide traditional ceremonial purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or any State.”].)

As for RFRA’s potential effect on federal constitutional law, the reader should recall that a “statute cannot amend the Constitution.” (Pennsylvania v. Union Gas Co., supra, 491 U.S. at p. 24 [ 105 L.Ed.2d at p. 22 ] (conc. opn. of Stevens, J.).)

In accord are In re Tessier (Bankr.D.Mont. 1995) 190 B.R. 396, 405-407 , and Brant, Taking the Supreme Court at its Word: The Implications of RFRA and Separation of Powers (1995) 56 Mont. L.Rev. 5.

I recognize that, in Flores v. City of Boerne, Tex. (5th Cir. 1996) 73 F.3d 1352, 1363 , the court rejected a claim that “RFRA violates the separation of powers because it restores” the “compelling government interest” test after it was “rejected in Smith as beyond the judiciary’s competence to apply.” It asserted that the “test” was not in fact rejected on that basis. As shown in the text, it was.

I also recognize that, in State v. Miller (1995) 196 Wis.2d 238, 247-248 [ 538 N.W.2d 573, 576-577 ], review granted (Wis. 1995) 540 N.W.2d 200 , affirmed (1996) 202 Wis.2d 56 [ 549 N.W.2d 235 ]; Sasnett v. Department of Corrections (W.D.Wis. 1995) 891 F.Supp. 1305, *1192 1315-1321 ; and Belgard v. State of Hawai'i (D.Hawai'i 1995) 883 F.Supp. 510, 512-517 , the courts rejected claims that RFRA is unconstitutional. The Miller court did not even consider separation of powers. The Sasnett and Belgard courts did, but on a basis materially different from that on which I rest.

A final point: no section or subsection of RFRA that is pertinent here shows itself to be severable from the statute as a whole. Each falls with all.