                United States Court of Appeals
                  FOR THE EIGHTH CIRCUIT
                       ___________

                       No. 93-2267
                       ___________

In re: Bruce Young; In re: Nancy Young, *
                                *
_________________________ *
                                *
Julia A. Christians,            *
                                *
             Appellee,          *
                                * Appeal from the United
States
      v.                        * District Court for the
                                * District of Minnesota.
Crystal Evangelical Free Church,                       *
                                *
             Appellant.         *
_________________________ *
                                *
United States of America, *
                                *
             Intervenor on Appeal,                     *
                                *
C h r i s t i a n Legal Society; The National          *

Association of Evangelicals; Americans             *
United for Separation of Church and                *
State; Concerned Women for America;                *
The Baptist Joint Committee on Public              *
Affairs; The Southern Baptist *
Convention; The General Conference of              *
Seventh-Day Adventists; The Evangelical*
Lutheran Church in America,   *
                            *
         Amici Curiae.      *
                            *
United States Senator Orrin G. Hatch;                           *
The Church of Jesus Christ of Latter-                           *
Day Saints; Catholic League for                                 *
Religious and Civil Rights; Traditional                         *
Values Coalition; Worldwide Church of                           *
God,                           *
                            *
         Amicus Curiae.     *
                            *
Coalition for the Free Exercise of                              *
Religion,                      *
                            *
     Amicus on Behalf of Appellant.                             *
                       ___________

                 Submitted:     December 8, 1997
                                            Filed:        April 13,
1998
                            ___________

Before McMILLIAN and MAGILL, Circuit Judges, and BOGUE,*
    District Judge.
                      ___________

MAGILL, Circuit Judge.

    In our earlier opinion in this matter we reversed the
district court and held that under the Religious Freedom
Restoration Act (RFRA), 42 U.S.C. §§ 2000bb to 2000bb-4,
bankruptcy debtors' religious tithes could not be
recovered from a church as avoidable transactions in
adversary proceedings.      See Christians v. Crystal
Evangelical Free Church (In re Young), 82 F.3d 1407, 1420
(8th Cir. 1996). In City of Boerne v. Flores, 117 S. Ct.
2157 (1997), the Supreme Court held that RFRA was
unconstitutional as applied to state law because Congress

       *
       THE HONORABLE ANDREW W. BOGUE, United States District Judge for
the District of South Dakota, sitting by designation.

                                 -2-
had exceeded its enforcement powers under § 5 of the
Fourteenth Amendment. The Supreme Court subsequently




                         -3-
summarily vacated and remanded our decision in Christians
for reconsideration in light of Flores. See Christians v.
Crystal Evangelical Free Church, 117 S. Ct. 2502, 2502
(1997). Upon reconsideration, we conclude that, under the
Bankruptcy Clause and the Necessary and Proper Clause of
Article I of the Constitution, RFRA is constitutional as
applied to federal law.    Accordingly, we reinstate our
previous decision, and again reverse the district court.

                           I.

    Bruce and Nancy Young are active members of the
Crystal Evangelical Free Church (the Church).           In
accordance with their religious beliefs, the Youngs tithed
ten percent of their annual income to the Church. While
the Church teaches that its members should contribute to
support the Church, it does not require payment for
attendance or membership, and would provide all services
to the Youngs regardless of the amount of their tithes.
Between February 1991 and February 1992, the Youngs tithed
$13,450.00 to the Church.

    The Youngs filed a joint Chapter 7 bankruptcy petition
in February 1992. Because the Youngs had been insolvent
during the previous year, bankruptcy trustee Julia
Christians (the Trustee) sought to avoid the Youngs'
tithes to the Church as fraudulent transfers under 11
U.S.C. § 548(a)(2)(A). Both the bankruptcy court and the
district court held that the tithes to the church were
avoidable transactions, and allowed the Trustee to recover
the tithes from the Church.




                           -4-
    To avoid the Youngs' tithes under 11 U.S.C. §
548(a)(2)(A), the Trustee had the burden of proving that
"(1) there was a transfer of the debtors' interest in
property (2) made on or within a year preceding the filing
of the petition (3) while the debtors were insolvent (4)
in exchange for which the debtors received less than
reasonably equivalent value."     Christians, 82 F.3d at
1410. The parties stipulated that the first three factors
were present. See id. We held that the Trustee had also
proven the fourth factor,




                           -5-
because the Church did not premise any of its services on
the Youngs' tithes and therefore did not provide anything
in exchange for the tithes.          See id. at 1415.
Accordingly, we held that the Youngs' tithes would
ordinarily be avoidable transactions. See id. at 1416.

    We also concluded, however, that allowing the Trustee
"recovery of the contributions substantially burdens the
debtors' free exercise of their religion and is not in
furtherance of a compelling governmental interest and
therefore violates the RFRA." Id. at 1417. Because "RFRA
provides a defense against the order of the district court
permitting the trustee to avoid the debtors' contributions
to the church," we held that "[t]he trustee is not
entitled to recover $13,450 from the church."      Id. at
1420.

    After this Court denied the Trustee's petition for
rehearing en banc, see Christians v. Crystal Evangelical
Free Church (In re Young), 89 F.3d 494, 494 (8th Cir.
1996),   the   Supreme    Court   held   that   RFRA   was
unconstitutional as applied to state law. See Flores,
117 S. Ct. at 2172.      Subsequently, the Supreme Court
granted certiorari in the instant case, vacated our
initial opinion, and remanded for reconsideration in light
of Flores.    See Christians, 117 S. Ct. at 2502.       On
remand, the Trustee argues that RFRA is unconstitutional
as applied to federal law because Congress violated the
separation of powers doctrine in enacting the statute and
because RFRA violates the Establishment Clause of the
First Amendment.

                           II.

                           -6-
A. RFRA and Flores

    RFRA was enacted as a legislative response to the
Supreme Court's decision in Employment Div., Dep't of
Human Resources v. Smith, 494 U.S. 872 (1990). In Smith,
the Supreme Court held that the First Amendment "right of
free exercise [of religion] does not relieve an individual
of the obligation to comply with a valid and neutral law




                           -7-
of general applicability on the ground that the law
proscribes (or prescribes) conduct that his religion
prescribes (or proscribes)."     Id. at 879 (quotations
omitted).   In reaching this holding, the Supreme Court
effectively overruled precedent that had provided greater
protection to individuals whose religious practices were
burdened by the operation of neutral laws. See id. at
883-85 (rejecting rule of Sherbert v. Verner, 374 U.S. 398
(1963), that "governmental actions that substantially
burden a religious practice must be justified by a
compelling governmental interest").

     Congress enacted RFRA to limit the Smith decision's
impact on the practice of religious liberties. Congress
found that "laws 'neutral' toward religion may burden
religious exercise as surely as laws intended to interfere
with religious exercise," and concluded that "governments
should not substantially burden religious exercise without
compelling justification."    42 U.S.C. § 2000bb(a)(2) &
(3).   Congress enacted RFRA "to restore the compelling
interest test as set forth in Sherbert v. Verner, 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] to
provide a claim or defense to persons whose religious
exercise is substantially burdened by government."      42
U.S.C. § 2000bb(b)(1) & (2).

    RFRA codified the compelling interest test of Sherbert
and Yoder, and provided that the government could
"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

                           -8-
interest; and (2) is the least restrictive means of
furthering that compelling governmental interest."     42
U.S.C. § 2000bb-1(b)(1) & (2). Congress intended RFRA to
apply "to all Federal and State law." 42 U.S.C. § 2000bb-
3(a); see also 42 U.S.C. § 2000bb-2(1) (defining
"government" to include "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").




                           -9-
    Whether Congress has the authority to impose RFRA on
state law was soon questioned, see, e.g., Hamilton v.
Schriro, 74 F.3d 1545, 1570 (8th Cir.) (McMillian, J.,
dissenting) ("Because Congress does not have the power
under § 5 of the Fourteenth Amendment to enact RFRA, I
would hold that the Religious Freedom Restoration Act is
unconstitutional."), cert. denied, 117 S. Ct. 193 (1996),
and the Supreme Court ultimately declared that this part
of RFRA was beyond Congress's power to enact. See Flores,
117 S. Ct. at 2172.

    As the Flores Court noted, "Congress relied on its
Fourteenth Amendment enforcement power in enacting the
most far reaching and substantial of RFRA's provisions,
those which impose its requirements on the States." Id.
at 2162. The enforcement power of § 5 of the Fourteenth
Amendment is remedial and only allows Congress to preserve
rights already protected by the Fourteenth Amendment. See
id. at 2164.       However, the Fourteenth Amendment,
incorporating the Free Exercise Clause of the First
Amendment, does not protect individuals practicing their
religious beliefs from the operation of neutral law. See
Smith, 494 U.S. at 879. Because RFRA's protection went
far beyond the protection offered by the Smith Court's
authoritative interpretation of the First Amendment, as
incorporated into the Fourteenth Amendment, Congress
exceeded the authority provided in § 5 of the Fourteenth
Amendment to enforce the Amendment. See Flores, 117 S.
Ct. at 2164 ("Legislation which alters the meaning of the
Free Exercise Clause cannot be said to be enforcing the
Clause. Congress does not enforce a constitutional right
by changing what the right is."); id. at 2170 ("RFRA is
so out of proportion to a supposed remedial or preventive

                           -10-
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.").




                          -11-
B. Severability

    The Flores Court did not reach any decision as to the
constitutionality of RFRA as applied to federal law. By
its terms, the Fourteenth Amendment is applicable only to
the states, and not to the federal government. See U.S.
Const. amend. XIV, § 1. In applying RFRA to the federal
government, Congress relied on its enumerated powers in
Article I of the Constitution. See H.R. Rep. No. 103-88,
at 17 (1993) ("Finally, the Committee believes that
Congress has the constitutional authority to enact [RFRA].
Pursuant to Section 5 of the Fourteenth Amendment and the
Necessary and Proper Clause embodied in Article I, Section
8 of the Constitution, the legislative branch has been
given the authority to provide statutory protection for a
constitutional value    . . . .").     In concluding that
Congress could not rely on § 5 of the Fourteenth Amendment
to impose RFRA on state governments, the Flores Court did
not address whether Congress could, pursuant to its
Article I authority, constitutionally impose RFRA on
federal law. Despite this omission, the Trustee in the
instant case contends that the Supreme Court's decision in
Flores "means that RFRA is a dead-letter" and that "[t]his
Court cannot apply it here." Appellee's Br. at 2. We
disagree.

    Where the Supreme Court strikes down one portion of
a statute, we must presume that other portions of the same
statute remain in effect "unless it is evident that the
Legislature would not have enacted those provisions which
are within its power, independently of that which is not."
INS v. Chadha, 462 U.S. 919, 931-32 (1983) (quotations and
alteration omitted); see also Alaska Airlines, Inc. v.

                           -12-
Brock, 480 U.S. 678, 684 (1987) ("Congress could not have
intended a constitutionally flawed provision to be severed
from the remainder of the statute if the balance of the
legislation is incapable of functioning independently."
(emphasis added)). Congress's goal in enacting RFRA was
to protect religious liberties as fully as possible from
encroachment by all government actors. RFRA's protection against
federal interference with religious liberties is independent and distinct from its
protection against state interference, and there is nothing in RFRA's text
or legislative history to suggest that Congress would




                                      -13-
have declined to protect religious liberties from federal
interference merely because it was unable to protect those
liberties from state interference. Assuming that RFRA is
constitutional as applied to federal law, we conclude that
the portion of RFRA applicable to the federal government
is fully severable from the portion applicable to the
states. See Alaska Airlines, 480 U.S. at 684 ("A court
should refrain from invalidating more of the statute than
is necessary.     Whenever an act of Congress contains
unobjectionable provisions separable from those found to
be unconstitutional, it is the duty of this court to so
declare, and to maintain the act in so far as it is
valid." (quotations and alterations omitted)).

                                          III.

    The Trustee argues that RFRA violates the separation
of powers doctrine and the Establishment Clause of the
First Amendment, and is therefore unconstitutional as
applied to federal law. We address these issues in turn.

A. Separation of Powers: The Bankruptcy Clause and the
Necessary and Proper Clause

       The Trustee apparently suggests that, because Congress disagreed with the
Supreme Court's interpretation of the First Amendment, RFRA necessarily constitutes
a violation of the separation of powers doctrine. We disagree.

       The framers of the Constitution created co-equal branches of government with
distinct responsibilities and authorities. "The essential balance created by this allocation
of authority was a simple one. The Legislature would be possessed of power to
prescribe the rules by which the duties and rights of every citizen are to be regulated,

                                           -14-
but the power of the interpretation of the laws would be the proper and peculiar
province of the courts." Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 222 (1995)
(quotations and alterations omitted). The judicial authority to "say what the law is"




                                        -15-
extends to the interpretation of the Constitution itself. See Marbury v. Madison, 5 U.S.
(1 Cranch) 137, 176-77 (1803). While Congress can seek to change the meaning of the
Constitution through amendment, see U.S. Const. art. V, it may not do so through the
passage of ordinary legislation. See Flores, 117 S. Ct. at 2168 ("If Congress could
define its own powers by altering the Fourteenth Amendment's meaning, no longer
would the Constitution be 'superior paramount law, unchangeable by ordinary means.'
It would be 'on a level with ordinary legislative acts, and, like other acts, . . . alterable
when the legislature shall please to alter it.'" (ellipses in original) (quoting Marbury, 5
U.S. (1 Cranch) at 177)).

       While Congress cannot, through ordinary legislation, amend the Court's
authoritative interpretation of the Constitution, "congressional disapproval of a Supreme
Court decision does not impair the power of Congress to legislate a different result, as
long as Congress had that power in the first place." United States v. Marengo County
Comm'n, 731 F.2d 1546, 1562 (11th Cir. 1984); see also Flores, 117 S. Ct. at 2171
("When Congress acts within its sphere of power and responsibilities, it has not just the
right but the duty to make its own informed judgment on the meaning and force of the
Constitution. This has been clear from the early days of the Republic."). Congress has
often provided statutory protection of individual liberties that exceed the Supreme
Court's interpretation of constitutional protection. See, e.g., Privacy Protection Act of
1980, 42 U.S.C. §§ 2000aa to 2000aa-12 (reacting to Zurcher v. Stanford Daily, 436
U.S. 547 (1978), and providing journalists with greater protection against searches and
seizures); National Defense Authorization Act for Fiscal Years 1988 and 1989, § 508,
10 U.S.C. § 774 (reacting to Goldman v. Weinberger, 475 U.S. 503 (1986), and
providing that members of military were entitled to wear religious headgear); cf
Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) (reacting to Geduldig v. Aiello,
417 U.S. 484 (1974), and equating employment discrimination based on pregnancy with
employment discrimination based on gender). Because Congress need not agree with
everything the Supreme Court does in order for its legislation to pass constitutional
muster, we conclude that RFRA is not contrary to the

                                           -16-
Constitution merely because Congress disagreed with the Smith Court's interpretation
of the Free Exercise Clause.

       The key to the separation of powers issue in this case is thus not whether
Congress disagreed with the Supreme Court's constitutional analysis, but whether
Congress acted beyond the scope of its constitutional authority in applying RFRA to
federal law. Because the "principle of the law of federal courts [is] that constitutional
issues affecting legislation will not be determined in broader terms than are required by
the precise facts to which the ruling is to be applied," EEOC v. Catholic Univ. of Am.,
83 F.3d 455, 469 (D.C. Cir. 1996) (quotations and alteration omitted), we examine
whether Congress had the constitutional authority to apply RFRA to the Bankruptcy
Act.

       Article I of the Constitution gives Congress the power to establish "uniform Laws
on the subject of Bankruptcies throughout the United States." U.S. Const. art. I, § 8,
cl. 4. Unlike the limited scope of authority granted to Congress by § 5 of the Fourteenth
Amendment to enforce that Amendment, "Congress has plenary authority in all cases
in which it has substantive legislative jurisdiction, so long as the exercise of that
authority does not offend some other constitutional restriction." Chadha, 462 U.S. at
941 (quotations and citation omitted). The Supreme Court has explained that
Congress's authority under the Bankruptcy Clause

      extends to all cases where the law causes to be distributed, the property
      of the debtor among his creditors; this is its least limit. Its greatest, is the
      discharge of a debtor from his contracts. And all intermediate legislation,
      affecting substance and form, but tending to further the great end of the
      subject--distribution and discharge--are in the competency and discretion
      of Congress. With the policy of a law, letting in all classes,--others as well
      as traders; and permitting the bankrupt to come in voluntarily, and be
      discharged without the consent of his creditors, the courts have no
      concern; it belongs to the lawmakers.


                                           -17-
Hanover Nat'l Bank v. Moyses, 186 U.S. 181, 186 (1902) (quotations omitted).

        The Constitution also gives Congress the power "[t]o make all Laws which shall
be necessary and proper for carrying into Execution" its bankruptcy power. U.S. Const.
art. I, § 8, cl. 18. In considering the authority granted by the Necessary and Proper
Clause to Congress to execute the powers enumerated in Article I, the Supreme Court
has explained that:

       [W]e think the sound construction of the constitution must allow to the
       national legislature that discretion, with respect to the means by which the
       powers it confers are to be carried into execution, which will enable that
       body to perform the high duties assigned to it, in the manner most
       beneficial to the people. Let the end be legitimate, let it be within the
       scope of the constitution, and all means which are appropriate, which are
       plainly adapted to that end, which are not prohibited, but consist with the
       letter and spirit of the constitution, are constitutional.

M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819).

        We conclude that RFRA is an appropriate means by Congress to modify the
United States bankruptcy laws. In attempting to avoid the Youngs' tithes to the church,
the Trustee relied on an affirmative act of Congress defining which transactions of
debtors in bankruptcy may be avoided. See 11 U.S.C. § 548(a)(2)(A). RFRA,
however, has effectively amended the Bankruptcy Code, and has engrafted the
additional clause to § 548(a)(2)(A) that a recovery that places a substantial burden on
a debtor's exercise of religion will not be allowed unless it is the least restrictive means
to satisfy a compelling governmental interest. See 42 U.S.C. § 2000bb-1(a) & (b). The
Trustee has not contended, and we can conceive of no argument to support the
contention, that Congress is incapable of amending the legislation that it has passed.
See Catholic Univ. of Am., 83 F.3d at 470 ("We doubt that [a Title VII plaintiff
challenging the constitutionality of RFRA as applied to federal law] would argue that


                                           -18-
Congress lacks at least the facial authority to determine against whom, and under what
circumstances, Title VII and other federal laws will be enforced."). Neither can we
accept any argument that allowing the discharge of a debt in bankruptcy and preventing
the recovery of a transfer made by insolvent debtors is beyond the authority of
Congress. See Hanover Nat'l Bank, 186 U.S. at 186. We therefore conclude that
Congress had the authority to enact RFRA and make it applicable to the law of
bankruptcy.

B. Establishment Clause

    In enacting RFRA, Congress sought to preserve First
Amendment values by protecting the exercise of religious
beliefs from substantial burdens imposed by the operation
of otherwise neutral laws. See S. Rep. No. 103-111, at 14
(1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1903.
Although the Supreme Court has repeatedly held that
excepting religious organizations from the sweep of
neutral laws does not violate the Constitution, see, e.g.,
Corporation of the Presiding Bishop v. Amos, 483 U.S. 327,
338-40 (1987) (exemption from federal antidiscrimination
laws for religious organizations does not violate
Establishment Clause); Gillette v. United States, 401 U.S.
437, 460 (1971) (exemption from military draft for
religious conscientious objectors does not violate
Establishment Clause); Walz v. Tax Comm'n, 397 U.S. 664,
680 (1970) (state property tax exemption for religious
organizations does not violate Establishment Clause), the
Trustee nevertheless contends that Congress violated the
Establishment Clause of the First Amendment. We disagree.

    The Establishment Clause provides that "Congress shall
make no law respecting an establishment of religion."

                                        -19-
U.S. Const. amend. I. The Supreme Court has explained
that "[t]he language of the Religion Clauses of the First
Amendment is at best opaque," Lemon v. Kurtzman, 403 U.S.
602, 612 (1971), and that a "law 'respecting' the
proscribed result, that is, the establishment of religion,
is not always easily identifiable as one violative of the
Clause." Id. The Court has, however, identified "three
main




                           -20-
evils against which the Establishment Clause was intended
to afford protection: sponsorship, financial support, and
active involvement of the sovereign in religious
activity." Id. (quotations omitted); see also Gillette,
401 U.S. at 449 (noting that "the central purpose of the
Establishment Clause" is "ensuring governmental neutrality
in matters of religion").

    The    Supreme   Court's    interpretation    of   the
Establishment Clause does "not call for total separation
between church and state; total separation is not possible
in an absolute sense.         Some relationship between
government and religious organizations is inevitable."
Lemon, 403 U.S. at 614.     Indeed, the "Court has long
recognized that the government may (and sometimes must)
accommodate religious practices and that it may do so
without violating the Establishment Clause," Hobbie v.
Unemployment Appeals Comm'n, 480 U.S. 136, 144-45 (1987)
(quotations omitted), and that         "[t]he limits of
permissible state accommodation to religion are by no
means co-extensive with the noninterference mandated by
the Free Exercise Clause." Walz, 397 U.S. at 673.

    The Lemon Court warned that, in determining whether
the Establishment Clause has been violated, courts are not
"to engage in a legalistic minuet in which precise rules
and forms must govern. A true minuet is a matter of pure
form and style, the observance of which is itself the
substantive end.     Here we examine the form of the
relationship for the light that it casts on the
substance." Lemon, 403 U.S. at 614. In examining this
substance, the Supreme Court crafted a three-part test to



                           -21-
determine if a statute    avoids   a   violation   of   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.




                         -22-
Id. at 612-13 (quotations and citations omitted).     We
believe that RFRA has met each of these three elements.

    We conclude that RFRA, although designed to protect
religious rights, has a secular purpose. That a law must
have a secular purpose "does not mean that the law's
purpose must be unrelated to religion--that would amount
to a requirement that the government show a callous
indifference to religious groups, and the Establishment
Clause has never been so interpreted." Corporation of the
Presiding Bishop, 483 U.S. at 335 (quotations and
citations omitted).      Rather, the Supreme Court has
explained that "Lemon's 'purpose' requirement aims at
preventing the relevant governmental decisionmaker--in
this case, Congress--from abandoning neutrality and acting
with the intent of promoting a particular point of view in
religious matters." Id.

    Congress's purpose in enacting RFRA was not to benefit
a particular religious sect, but rather to protect one of
"the most treasured birthrights of every American"--the
"right to observe one's faith, free from Government
interference." S. Rep. No. 103-111, at 4, reprinted in
1993 U.S.C.C.A.N. at 1893-94.     This effort to protect
First Amendment values is "neutral in the sense of the
Establishment Clause." Gillette, 401 U.S. at 453. The
Supreme Court has explained that "it is hardly
impermissible for Congress to attempt to accommodate free
exercise values, in line with our happy tradition of
avoiding unnecessary clashes with the dictates of
conscience."     Id. (quotations omitted); see also
Corporation of the Presiding Bishop, 483 U.S. at 335
("[I]t is a permissible legislative purpose to alleviate

                           -23-
significant governmental interference with the ability of
religious organizations to define and carry out their
religious missions.").

    Nor do we believe that RFRA improperly advances or
inhibits religion under the second prong of the Lemon
test.   Rather than providing an affirmative benefit to
religion, RFRA only protects individuals from laws which
"substantially burden a person's exercise of religion."
42 U.S.C. § 2000bb-1(a). As the Supreme Court has




                          -24-
noted, "[a] law is not unconstitutional simply because it
allows churches to advance religion, which is their very
purpose.   For a law to have forbidden 'effects' under
Lemon, it must be fair to say that the government itself
has advanced religion through its own activities and
influence." Corporation of the Presiding Bishop, 483 U.S.
at 337 (emphasis in original).

    It is true, of course, that RFRA treats religion
differently than irreligion.      In a brief, separate
concurrence to the opinion in Flores, Justice Stevens
stated his belief that RFRA "is a 'law respecting an
establishment of religion' that violates the First
Amendment to the Constitution" because "governmental
preference for religion, as opposed to irreligion, is
forbidden by the First Amendment." Flores, 117 S. Ct. at
2172 (Stevens, J., concurring).     This viewpoint is in
direct contradiction to the declaration of a majority of
the Supreme Court in Corporation of the Presiding Bishop,
where the Court explained that it

    has never indicated that statutes that give
    special consideration to religious groups are per
    se invalid.    That would run contrary to the
    teaching of our cases that there is ample room
    for   accommodation   of   religion   under   the
    Establishment Clause. Where, as here, government
    acts with the proper purpose of lifting a
    regulation that burdens the exercise of religion,
    we see no reason to require that the exemption
    come packaged with benefits to secular entities.

483 U.S. at 338 (citation omitted); see also Gillette, 401
U.S. at 454 ("'Neutrality' in matters of religion is not
inconsistent with 'benevolence' by way of exemptions from

                           -25-
onerous duties, so long as an exemption is tailored
broadly enough that it reflects valid secular purposes."
(citation omitted)).

    Finally, it does not appear to us that RFRA "foster[s]
an excessive government entanglement with religion."
Lemon, 403 U.S. at 613 (quotations omitted). Indeed, RFRA
was designed to prevent such an entanglement by limiting
the impact that neutral




                           -26-
laws have on religion. See Corporation of the Presiding
Bishop, 483 U.S. at 339 ("It cannot be seriously contended
that [the statute] impermissibly entangles church and
state; the statute effectuates a more complete separation
of the two and avoids the kind of intrusive inquiry into
religious belief that the District Court engaged in in
this case. The statute easily passes muster under the
third part of the Lemon test.").

    RFRA fulfills each of the elements presented in the
Lemon test, and we conclude that Congress did not violate
the Establishment Clause in enacting RFRA. Because the
portion of RFRA applicable to federal law violates neither
the separation of powers doctrine nor the Establishment
Clause, we conclude that RFRA is constitutional.
Accordingly, we reinstate our earlier decision in this
matter, and again reverse the district court.

BOGUE, Senior District Judge, dissenting.

    I respectfully dissent on two grounds.     Initially,
assuming as the majority concludes, that RFRA is
constitutional as applied to federal law, I re-urge my
dissent contained in this Court’s original opinion
reversing the district court in this matter. See,
Christians v. Crystal Evangelical Free Church (In re
Young), 82 F.3d 1407, 1421-1423 (8th Cir. 1996). I would
conclude that the trustee’s recovery of the tithed monies
does not substantially burden the debtors’ free exercise
rights, that the bankruptcy code and § 548(a)(2) further
a compelling governmental interest, and that § 548(a)(2)
is the least restrictive means of furthering that
interest. Id.

                           -27-
     Alternatively,   I   would   hold   that   RFRA   is
unconstitutional even as applied to federal law, and on
that basis affirm the district court. Our instruction on
the remand from the Supreme Court is to conduct further
proceedings in light of City of Boerne v. Flores. As the
majority indicates, in Flores the Supreme Court held RFRA
unconstitutional as applied to state law because Congress
exceeded its enforcement powers under § 5 of the
Fourteenth Amendment.    In my opinion, however,   Flores
does




                          -28-
more than merely declare RFRA unconstitutional as applied
to state law. In broader terms, Flores dictates that,
despite the broadest reach of Congress’ plenary powers,
there is a point beyond which Congress may not go in the
exercise the of its power without intruding upon the core
function of the judicial branch, thereby offending “vital
principles necessary to maintain separation of powers. .
. .” Flores, 117 S.Ct. 2157, 2172 (1997). This rationale
of Flores applies to federal law, as well as state law.



    In addition to its holding that RFRA exceeded
Congress’ enforcement power because it so lacked
congruence and proportionality that it could not be
considered remedial or preventive legislation, Flores also
held that RFRA went “beyond congressional authority” by
invading the “province of the Judicial Branch.” Id. at
2172.   RFRA was both beyond the scope of the power of
Congress and violative of the separation of powers
doctrine. Congress makes no secret of the fact that the
express purpose of RFRA is to displace        the Supreme
Court’s decision in Employment Div. v. Smith, 494 U.S.
872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), and return
the Court’s “compelling interest” test to Free Exercise
jurisprudence. See, 42 U.S.C. § 2000bb(b) (the act’s
stated purposes are “to restore the compelling interest
test as set forth in [the Court’s pre-Smith cases] and to
guarantee its application in all cases where free exercise
of religion is substantially burdened”); and, Flores, 117
S.Ct. at 2160 and 2171 (RFRA was enacted “in direct
response to the Court’s decision in [Smith]” and attempts
a “substantive change of its holding”).        In essence
Congress, through RFRA, attempts to impose upon the
judiciary, a standard of review for interpreting
constitutional rights which it believes is a better
standard than that crafted by the Court itself.       This

                           -29-
extraordinary exercise of power is postured as the
creation of a “claim or defense to persons whose religious
exercise is substantially burdened by government”. 42
U.S.C. § 2000bb(b). The very existence of one’s “claim”
or right to be free from substantial burdens on the
exercise of his or her religion, however, derives from the
Supreme Court’s interpretation of the constitution and its
opinion as to what it means to have a right to the “free
exercise” of one’s religion.        As the Flores Court
explained, because the text of the First Amendment is
ambiguous on the meaning of “free




                           -30-
exercise,”1 we look to the Court to interpret the
Constitution and the Free Exercise clause in its exclusive
province to “say what the law is.” Flores, 117 S.Ct. at
2172 (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137,
177, 2 L.Ed. 60 (1803)). Thus, when the Supreme Court
decrees, insofar as one’s right of free exercise is
concerned, that a facially neutral, generally applicable
law may be applied to religious practices even when not
supported by a compelling governmental interest, Smith,
494 U.S. at 879, 110 S.Ct. at 1600, that decree defines
the parameters of the constitutional right. And although
Congress has the power to “enforce” constitutional rights, Flores, 117 S.Ct. at 2163, it
is powerless to enforce a free exercise right different from that which the Supreme Court
has determined to be the right. Id. at 2164. (“Congress does not enforce a constitutional
right by changing what the right is.”). Yet this is precisely what Congress is attempting
to do with its passage of RFRA. See, Eugene Gressman, The Necessary and Proper
Downfall of RFRA, 2 Chapman Univ. Nexus Journal of Opinion, 73, 77 (1997)(“RFRA
is designed to protect the rights the judiciary would find and protect if the courts were
to use the compelling governmental interest test with respect to neutral laws that
incidentally burden religious exercises.”). Such attempt, even as applied to federal law,
in my opinion, is a serious breach of the separation of powers doctrine.

       “The power to interpret the Constitution in a case or controversy remains in the
Judiciary,” Flores, 117 S.Ct at 2166, and “[w]hen the Court has interpreted the
Constitution, it has acted within the province of the Judicial Branch, which embraces
the duty to say what the law is.” Id. at 2172. This duty represents one of the core
functions of the Judicial Branch, reserved to it by the Constitution. U.S. Const. art. III
§ 2. “The judicial authority to determine the constitutionality of laws, in cases and
controversies, is based on the premise that the ‘powers of the legislature are defined and
limited . . . .’” Flores, 117 S.Ct. at 2162 (citing Marbury, 1 Cranch at 176). Yet,



      1
       “Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof . . . .” U.S. Const. amend. I.

                                          -31-
RFRA is expressly “designed to control cases and controversies.” Id. at 2172; 42
U.S.C. 2000bb(b)(1) . By forcing a standard of review upon the Article III judiciary,
for the Court to apply in its adjudication of cases and controversies, Congress has gone
beyond its limited and defined powers, intruded upon, and usurped a core function of
the Article III branch.

       The separation and independence of the coordinate branches of the Federal
Government serve to prevent the accumulation of excessive power in any one branch.
United States v. Lopez, 514 U.S. 549, 552, 115 S.Ct. 1624, 1626, 131 L.Ed.2d 626
(1995)(citation omitted). “[T]he system of separated powers and checks and balances
established in the constitution was regarded by the Framers as a ‘self-executing
safeguard against the encroachment or aggrandizement of one branch at the expense of
the other.’” Morrison v. Olson, 487 U.S. 654, 693, 108 S.Ct. 2597, 2620, 101 L.Ed. 2d
569 (1988)(citation omitted). Maintaining the separation of powers is an essential part
of the Constitutional structure and plays a vital role in securing freedom for all. Lopez,
514 U.S. at 578, 115 S.Ct. at 1639 (Kennedy, J., concurring). “[T]he courts retain the
power, as they have since Marbury v. Madison, to determine if Congress has exceeded
its authority under the Constitution.” Flores, 117 S.Ct. at 2172. To that end,

      [w]hen the political branches of the Government act against the background of
      a judicial interpretation of the constitution already issued, it must be understood
      that in later cases and controversies the Court will treat its precedents with the
      respect due them under settled principles, including stare decisis, and contrary
      expectations must be disappointed.

Id.

      In Lopez, the Supreme Court invalidated the Gun-Free School Zones Act of
1990, 18 U.S.C. § 922(q), on grounds that Congress exceeded its authority under the
Commerce Clause to regulate commerce among the several states. Lopez, 514 U.S. at




                                             -32-
551, 115 S.Ct. at 1626. The Act made it a federal offense “for any individual
knowingly to possess a firearm at a place that the individual knows, or has reasonable
cause to believe is a school zone.” Id. But because by its terms the statute had nothing
to do with commerce or any economic enterprise whatsoever, and did not substantially
affect interstate commerce, Congress lacked the power to enact the legislation in the
first instance. Id., 514 U.S. at 561, 115 S.Ct. at 1630-31. The Lopez opinion confirms
that Congress’ plenary power, though broad indeed, is subject to outer limits which the
Court has ample power to enforce, and will enforce. Id., 514 U.S. at 557, 115 S.Ct. at
1628-29. Preservation of the constitutional structure is of primary importance to all
officers of the Government, and it is the duty of the Court to “intervene when one or
the other [branch] of Government has tipped the scales too far.” Id., 514 U.S. at 578,
115 S.Ct. at 1639 (Kennedy, J., concurring). More recently the Court reemphasized the
importance of maintaining the constitutional structure and separation of powers, and
reaffirmed its duty to call into check impermissible exercises of Congressional power.
See, Printz v. United States, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997)(striking portions
of the Brady Handgun Violence Prevention Act as beyond Congress’ authority to enact
pursuant to its powers under the Commerce and Necessary and Proper clauses); See
also, New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120
(1992)(declaring Congress powerless to compel states to enact or administer federal
radioactive waste regulatory programs). With respect to RFRA as applied to federal
law, the Court has the power and obligation to check exercises of Congressional power
which it deems excessive and unconstitutional. In my opinion, Flores and the Court’s
precedents do as much.

        The majority concludes that Congress has the authority to enact RFRA and graft
it onto all federal congressional law, and onto § 548(a)(2)(A) of the Bankruptcy Code
in particular. Slip Op. at 11. I agree with the majority that Congress, in its plenary
power to establish “uniform Laws on the subject of Bankruptcies, ” is indeed capable
of amending any bankruptcy legislation that it has passed. Establishment Clause issues
aside, there is no question that Congress could re-draft § 548 to include an exemption,




                                         -33-
for all religious tithes, from the avoidance power of the trustee. But that is not what
Congress did here. What Congress did, in reality, was attempt to make a substantive
change in free exercise rights, and then impose its interpretation of what the right ought
to be onto the courts via “grafts” onto every federal law. Before one can say that
Congress may permissibly change the Bankruptcy Code to accommodate the provisions
of RFRA, however, one must assume the constitutionality of RFRA in the first instance.
But if RFRA does not pass constitutional muster, as I conclude, then Congress is
powerless to change the Bankruptcy Code through its power under the Necessary and
Proper Clause. That is, although Congress has “the power ‘[t]o make all Laws which
shall be necessary and proper for carrying into Execution’ its bankruptcy power,” Slip
Op. at 11, it does not have the power to execute its bankruptcy power with a law which
is not necessary and proper for that purpose.

        As the majority notes, “[i]n considering the authority granted by the Necessary
and Proper Clause to Congress to execute the powers enumerated in Article I the
Supreme Court has explained: . . . ‘Let the end be legitimate, let it be within the scope
of the constitution, and all means which are appropriate, which are plainly adapted to
that end, which are not prohibited, but consistent with the letter and spirit of the
constitution, are constitutional.’” Slip Op. at 11 (citing, M’Culloch v. Maryland, 17
U.S. (4 Wheat) 316, 421 (1819). This three prong M’Culloch test is used to assess the
validity of the exercise by Congress of any of its powers pursuant to the Necessary and
Proper Clause. In Flores, the Court indicated that RFRA, as applied to state a law,
failed the first prong of the M’Culloch test. Flores, 117 S.Ct. at 2164 (legislation which
alters the meaning of the Free Exercise Clause cannot be said to be enforcing the clause
under § 5 of the Fourteenth Amendment). I would conclude that it fails the first prong
as applied to federal law as well. As noted, Congress’ express intent in passing RFRA
was to restore the compelling interest test to Free Exercise jurisprudence. 42 U.S.C.
§ 2000bb(b). This seeks to change the Court’s interpretation of the Free Exercise
Clause and work a substantive change in free exercise rights, which is not a “legitimate
end,” and which cannot fairly be said to be necessary and proper for carrying into




                                          -34-
execution the Bankruptcy powers. See also, Gressman, 2 Chapman Univ. Nexus
Journal of Opinion at 82-83 (arguing RFRA as applied to federal law fails all three
prongs of M’Culloch test). To paraphrase the Printz decision,“[w]hen a law . . . for
carrying into execution the [Bankruptcy Clause] violates the principle of [separation of
powers] . . . it is not a law . . . proper for carrying into execution of the [Bankruptcy
Clause], and is thus, in the words of the Federalist, ‘merely an act of usurpation’ which
deserves to be treated as such.” Printz, 117 S.Ct. at 2379 (internal quotations and
citations omitted).

        I do not suggest by my dissent that Congress’ goal of “protect[ing] religious
liberties as fully as possible from encroachment by all government actors,” Slip Op. at
7, is somehow evil or untoward. To the contrary, Congress’ efforts to protect religious
freedom are most commendable and rightly pursued through the proper channels (e.g.,
a constitutional amendment); but not at the expense of the constitution.

   Much of the Constitution is concerned with setting forth the form of our
   government, and the courts have traditionally invalidated measures deviating
   from that form. The result may appear ‘formalistic’ in a given case to partisans
   of the measure at issue, because such measures are typically the product of the
   era’s perceived necessity. But the Constitution protects us from our own best
   intentions: It divides power among sovereigns and among branches of
   government precisely so that we may resist the temptation to concentrate power
   in one location as an expedient solution to the crisis of the day.

New York, 505 U.S. at 187, 112 S.Ct. at 2434.

       I believe that with the passage of RFRA, Congress has gone beyond its authority
and “tipped the scales too far.” It has impermissibly intruded upon the province of the
Article III branch by imposing upon the courts a standard of review to be applied in all
cases and controversies involving the free exercise of religion. Accordingly, I would
conclude that RFRA is unconstitutional as applied to federal law. It follows, therefore,




                                          -35-
that I would affirm the order of district court allowing the trustee to bring the tithed
monies back into the debtors’ estate pursuant to 11 U.S.C. § 548(a).

      A true copy.

             Attest:

                    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -36-
