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The RFRA Mistake

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I suspect my position that Oregon v. Smith was correctly decided and RFRA was a mistake will have a lot more takers than it did two years ago.

Lest people think I’ve become a Green Lanternite, I should say that the headline notwithstanding I don’t think Clinton should be the major figure of blame here. No president is going to veto a bill favored by virtually his entire party’s congressional caucus and most of the relevant prominent liberal groups. (And that goes double for a case where the veto would accomplish nothing in policy terms and the politics would be “Democrat Party President hates religious freedom.”) The problem was that the combination of a sympathetic litigant rejected by a Scalia opinion caused most liberals to not think clearly about what the legislation would accomplish.

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