Issue.  Does Congress have the power, under Section 5 of the 14th Amendment, to invalidate State laws with respect to the Free Exercise of Religion in a manner different than the Supreme Court has interpreted the clause?

Background. In Employment Division, Department of Human Resources of Oregon v. Smith, ("Smith"), the Supreme Court held that a State law will not violate the First Amendment right to the Free Exercise of Religion if a law that effects religious practices is neutral and generally applicable, even if the law is not supported by a compelling governmental interest.  Past jurisprudence required a finding of a compelling governmental interest.

Congress decided that it wanted to return to the older interpretation of the Free Exercise Clause, so it passed the Religious Freedom Restoration Act ("RFRA").  RFRA required any State (and local) law must be justified by a compelling interest if it interferes or prevents individuals from practicing their religion.  Congress claimed it had the authority to pass such legislation under Section 5 of the 14th Amendment.

The Supreme Court disagreed.

Court's Analysis.  The Court recognized that Congress could pass legislation under Section 5 of the 14th Amendment to protect First Amendment rights because the Due Process Clause of the 14th Amendment embraces the rights in the first 8 Amendments.  Still, Section 5 only allows Congress to enforce the 14th Amendment, not give it "the power to decree the substance of the 14th Amendment restrictions on the States."  Legislation altering the meaning of the Free Exercise Clause cannot be said to be enforcing the clause.

While Congress has some latitude in legislating under Section 5, it is not unlimited.  "There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end."  (The "congruence and proportionality test").  RFRA fails this test.

Congress has not shown that there were State laws being passed that violated the Free Exercise Clause (or were passed based on religious animus) that required passage of RFRA.  Thus, there was no congruence between an alleged 14th Amendment violation and the ends used to remedy that violation.

More importantly, RFRA "is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.  It appears, instead, to attempt a substantive change in constitutional protections."  The sweeping nature of RFRA is far too burdensome on the States, especially in light of the fact that States are passing so few (to no) laws violating the Free Exercise Clause.  Congress cannot pass a law that pervasively prohibits constitutional State action to remedy or to prevent unconstitutional State action unless it limits itself to prevent the pervasive prohibition of constitutional action.  That is not so in this case.

RFRA is neither congruent nor proportional; and, thus, it is not a valid exercise of Congressional power under Section 5.  Besides, Congress's purpose in passing the RFRA undermines the concept of separation of powers.  Congress cannot circumvent a judicial branch interpretation of the Constitution through legislation.  Section 5 never intended such a result.