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Justice O'Connor's Dilemma: The Baseline Question, Suzanna Sherry
Justice O'Connor's Dilemma: The Baseline Question, Suzanna Sherry
Vanderbilt Law School Faculty Publications
Many commentators view City of Boerne v. Flores,' in which a divided Supreme Court struck down the Religious Freedom Restoration Act of 1993 (RFRA), as a major defeat in the battle for religious freedom in the United States.' Be that as it may, Flores is also an opportunity to begin a discussion on another issue entirely: the appropriate relationship between dissenting Justices and majority opinions. Should a Justice who disagrees with a majority of the Court nevertheless accept the majority's holding as defining the law for purposes of establishing a baseline for subsequent questions? In order to understand the question …