Sutton has also utilized his narrow theory of federal authority to advocate severely limiting Congress’ efforts to protect religious liberty. Led by Senators Kennedy and Hatch, Congress in 1993 enacted the Religious Freedom Restoration Act (RFRA), designed to help protect the free exercise of religion. In City of Boerne v. Flores, 521 U.S. 507 (1997), however, the Court struck down RFRA as exceeding Congress’ power under section 5 of the Fourteenth Amendment. Sutton voluntarily filed an amicus curiae brief on behalf of Ohio and other states and personally argued the case in the Court. See 1995 U.S. Briefs 2074 (LEXIS).
Sutton vigorously challenged RFRA outside the courtroom as well. He testified before Congress in support of the result in Boerne and, in an essay written for the Federalist Society, praised the decision as a “victory for federalism” and a “welcome blow for states’ rights.” 5
In fact, Sutton has argued for restrictions on Congress’s ability to protect religious freedoms that are even more severe than those imposed by Boerne. In his brief in that case, Sutton claimed that section 5 of the Fourteenth Amendment does not permit Congress to enact any law to enforce religious freedom, free speech, or any other provision of the Bill of Rights. According to Sutton, such a provision was not and “could not have been ratified in 1870” and “would not be ratified today.” See 1995 U.S. Briefs 2074 (LEXIS). The Court in Boerne did not accept this claim, and suggested that Congress could adopt some laws protecting religious liberty. 521 U.S. at 519. Had it been adopted, however, Sutton’s radical theory would have invalidated virtually all other congressional statutes designed to protect religious freedom and other provisions of the Bill of Rights. This would include key parts of the Religious Land Use and Institutionalized Persons Act (RLUIPA), cosponsored by Senators Hatch and Kennedy and enacted after Boerne to help protect religious liberty.
Sutton’s views on religious liberty issues most closely resemble the views of Justice Antonin Scalia, for whom he clerked, perhaps the most right-wing Justice on the current Supreme Court on these subjects. Sutton has praised Scalia for his efforts to restrict the Establishment Clause’s protection of religious liberty. In another article for the Federalist Society, Sutton criticized the majority decision in Board of Education of Kiryas Joel v. Grumet, 512 U.S. 687 (1994), in which the Court held that school district lines could not be drawn to permit one religious sect to predominate. Sutton lauded Scalia’s dissent in the case: according to Sutton, Scalia’s dissent “highlighted” each “flaw” in the decision. Jeffrey S. Sutton, “Supreme Court Highlights,” Federalist Paper (Nov. 1994) at 16. Sutton praised the fact that the decision did not utilize “the increasingly irrelevant Lemon test.” Id. at 16, 17. This again echoes Justice Scalia, who has frequently criticized the Lemon test, an important tool in protecting religious liberty. 6 Sutton’s extreme views on religious liberty and on Congress’ power to protect it raise troubling concerns about his nomination.
5. Sutton, “City of Boerne v. Flores: A Victory for Federalism.” 1 Federalism and Separation of Powers News 7 (Fall 1997). See Supreme Court Decision on Religious Issues: Hearing Before the House Comm. on the Judiciary, Subcomm. on the Constitution, 105th Cong. (July 14, 1997) (statement of Jeffrey Sutton).
6. The Lemon test is a 3-pronged review that the Court has often used to determine whether a law violates the Establishment Clause. “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, finally, the statute must not foster an excessive government entanglement with religion.” Lemon v. Kurtzman 403 U.S. 602, 612-613 (1971) (internal citation omitted). For an example of Justice Scalia’s disdain for the Lemon test, see Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 399 (1993) (Scalia, J., concurring).