City of Boerne v. Flores

521 U.S. 507

Case Year: 1997

Case Ruling: 6-3, Reversed

Opinion Justice: Kennedy

FACTS

The First Amendment bars Congress from passing any law that prohibits the free exercise of religion. Over the years the Court has faced numerous cases in which individuals have claimed exemption from a law on the ground that complying with it would violate their religious liberty. During the 1960s and 1970s the justices developed a test for deciding such questions. Often referred to as the Sherbert-Yoder test, this standard said the government could only infringe on a person’s religious exercise rights if it had a compelling reason to do so and used the least restrictive means available to further that interest. However, in Employment Division v. Smith (1990) the Court radically changed the standard. In that case the justices held that the Free Exercise Clause does not relieve a person from the obligation of complying with a valid and neutral law of general applicability. That ruling gave government increased authority to pass and enforce laws that may indirectly infringe on religious exercise.

Although scholars now agree that Madison viewed this amendment as the most significant among the seventeen he proposed, Congress’s refusal to adopt it may have meant that the Founders never intended for the Bill of Rights to be applied to the states or local governments. Chief Justice John Marshall’s opinion in Barron v. Baltimore (1833), the first case in which the U.S. Supreme Court considered nationalizing the Bill of Rights, supports this conclusion. While reading Barron, note the relative ease with which Marshall reached the conclusion that historical circumstances could not possibly have implied that states were bound by the federal Bill of Rights.

America’s religious community strongly opposed the Smith decision and pressured Congress to pass legislation to counteract it. In November 1993 the legislature responded by passing the Religious Freedom Restoration Act (RFRA). The law’s most important provision, which applied to both state and federal governments, read as follows: Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability [unless the government can show that the burden] (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

The purpose of the law was to reimpose the Sherbert-Yoder compelling-interest test that had been in effect prior to the Smith decision. In effect, Congress was dictating to the Court what standard should be applied in religious liberty cases. The legislature claimed this power under the enforcement provisions of the Fourteenth Amendment. Was this exercise of legislative power proper, or did Congress infringe on the authority of the judiciary to determine what the Constitution means? The justices settled this conflict between the branches when they handed down their decision inCity of Boerne v. Flores (1997).

The dispute began in 1991, when St. Peter the Apostle Catholic Church received permission from the Archbishop of San Antonio to demolish its current structure, which it had outgrown, and to rebuild a new, seven-hundred-seat church--more than tripling the available seating. When the local parish applied to the city of Boerne, Texas, for the necessary building permits, city officials rejected the project on the ground that the existing church was covered by the city’s historical preservation program. Archbishop P. F. Flores, on behalf of the church, sued in federal court, claiming that constructing a new church was a form of religious exercise that was protected against government interference by RFRA. The city countered by arguing that RFRA was unconstitutional. The district court stuck down the law, but the court of appeals reversed, concluding that the statute was a proper exercise of federal legislative power.

City of Boerne is one of those uncommon cases in which the justices strike down a federal statute passed by overwhelming margins in both houses of Congress and supported by the president. The reaction in the legislature was predictable. Members of both houses threatened to pass new legislation or to introduce a constitutional amendment to reverse the impact of the Court’s ruling.

 

JUSTICE KENNEDY DELIVERED THE OPINION OF THE COURT.

A decision by local zoning authorities to deny a church a building permit was challenged under the Religious Freedom Restoration Act of 1993 (RFRA). The case calls into question the authority of Congress to enact RFRA. We conclude the statute exceeds Congress’ power....

Congress enacted RFRA in direct response to the Court’s decision in Employment Div., Dept. of Human Resources of Ore. v. Smith (1990).... In evaluating the claim, we declined to apply the balancing test set forth in Sherbert v. Verner (1963), under which we would have asked whether Oregon’s prohibition substantially burdened a religious practice and, if it did, whether the burden was justified by a compelling government interest....

The application of the Sherbert test, the Smith decision explained, would have produced an anomaly in the law, a constitutional right to ignore neutral laws of general applicability. The anomaly would have been accentuated, the Court reasoned, by the difficulty of determining whether a particular practice was central to an individual’s religion. We explained, moreover, that it “is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.”...

Four Members of the Court disagreed. They argued the law placed a substantial burden on the Native American Church members so that it could be upheld only if the law served a compelling state interest and was narrowly tailored to achieve that end. Justice O’Connor concluded Oregon had satisfied the test, while Justice Blackmun, joined by Justice Brennan and Justice Marshall, could see no compelling interest justifying the law’s application to the members.

These points of constitutional interpretation were debated by Members of Congress in hearings and floor debates. Many criticized the Court’s reasoning, and this disagreement resulted in the passage of RFRA. Congress announced:

• “(1) [T]he framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution;
• “(2) laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;
• “(3) governments should not substantially burden religious exercise without compelling justification;
• “(4) in Employment Division v. Smith (1990), the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and
• “(5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.”

The Act’s stated purposes are:

• “(1) to restore the compelling interest test as set forth in Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and
• “(2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government.”

RFRA prohibits “[g]overnment” from “substantially burden[ing]” a person’s exercise of religion even if the burden results from a rule of general applicability unless the government can demonstrate the burden “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” The Act’s mandate applies to any “branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States,” as well as to any “State, or ... subdivision of a State.”...

Under our Constitution, the Federal Government is one of enumerated powers. McCulloch v. Maryland (1819). 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; and that those limits may not be mistaken, or forgotten, the constitution is written.” Marbury v. Madison (1803).

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. The Fourteenth Amendment provides, in relevant part:

“Section 1. ... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

“Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

The parties disagree over whether RFRA is a proper exercise of Congress’ §5 power “to enforce” by “appropriate legislation” the constitutional guarantee that no State shall deprive any person of “life, liberty, or property, without due process of law” nor deny any person “equal protection of the laws.”...

Legislation which deters or remedies constitutional violations can fall within the sweep of Congress’ enforcement power even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into “legislative spheres of autonomy previously reserved to the States.” Fitzpatrick v. Bitzer (1976)....

It is also true, however, that “[a]s broad as the congressional enforcement power is, it is not unlimited.” Oregon v. Mitchell [1970]....

Congress’ power under §5 ... extends only to “enforc[ing]” the provisions of the Fourteenth Amendment. The Court has described this power as “remedial,” South Carolina v. Katzenbach [1966]. The design of the Amendment and the text of §5 are inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment’s restrictions on the States. 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. It has been given the power “to enforce,” not the power to determine what constitutes a constitutional violation. Were it not so, what Congress would be enforcing would no longer be, in any meaningful sense, the “provisions of [the Fourteenth Amendment].”

While the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law is not easy to discern, and Congress must have wide latitude in determining where it lies, the distinction exists and must be observed. There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. Lacking such a connection, legislation may become substantive in operation and effect....

The design of the Fourteenth Amendment has proved significant also in maintaining the traditional separation of powers between Congress and the Judiciary. The first eight Amendments to the Constitution set forth self-executing prohibitions on governmental action, and this Court has had primary authority to interpret those prohibitions.... As enacted, the Fourteenth Amendment confers substantive rights against the States which, like the provisions of the Bill of Rights, are self-executing. The power to interpret the Constitution in a case or controversy remains in the Judiciary.

The remedial and preventive nature of Congress’ enforcement power, and the limitation inherent in the power, were confirmed in our earliest cases on the Fourteenth Amendment. In the Civil Rights Cases (1883), the Court invalidated sections of the Civil Rights Act of 1875 which prescribed criminal penalties for denying to any person “the full enjoyment of” public accommodations and conveyances, on the grounds that it exceeded Congress’ power by seeking to regulate private conduct. The Enforcement Clause, the Court said, did not authorize Congress to pass “general legislation upon the rights of the citizen, but corrective legislation; that is, such as may be necessary and proper for counteracting such laws as the States may adopt or enforce, and which, by the amendment, they are prohibited from making or enforcing....”

Any suggestion that Congress has a substantive, nonremedial power under the Fourteenth Amendment is not supported by our case law....

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.” Marbury v. Madison. Under this approach, it is difficult to conceive of a principle that would limit congressional power. Shifting legislative majorities could change the Constitution and effectively circumvent the difficult and detailed amendment process contained in Article V.

We now turn to consider whether RFRA can be considered enforcement legislation under §5 of the Fourteenth Amendment.

Respondent contends that RFRA is a proper exercise of Congress’ remedial or preventive power. The Act, it is said, is a reasonable means of protecting the free exercise of religion as defined by Smith.... If Congress can prohibit laws with discriminatory effects in order to prevent racial discrimination in violation of the Equal Protection Clause, then it can do the same, respondent argues, to promote religious liberty.

While preventive rules are sometimes appropriate remedial measures, there must be a congruence between the means used and the ends to be achieved. The appropriateness of remedial measures must be considered in light of the evil presented. Strong measures appropriate to address one harm may be an unwarranted response to another, lesser one.

A comparison between RFRA and the Voting Rights Act is instructive. In contrast to the record which confronted Congress and the judiciary in the voting rights cases, RFRA’s legislative record lacks examples of modern instances of generally applicable laws passed because of religious bigotry. The history of persecution in this country detailed in the hearings mentions no episodes occurring in the past 40 years....

Regardless of the state of the legislative record, RFRA cannot be considered remedial, preventive legislation, if those terms are to have any meaning. 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. Preventive measures prohibiting certain types of laws may be appropriate when there is reason to believe that many of the laws affected by the congressional enactment have a significant likelihood of being unconstitutional. Remedial legislation under §5 “should be adapted to the mischief and wrong which the [Fourteenth] [A]mendment was intended to provide against.” Civil Rights Cases.

RFRA is not so confined. Sweeping coverage ensures its intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter. RFRA’s restrictions apply to every agency and official of the Federal, State, and local Governments. RFRA applies to all federal and state law, statutory or otherwise, whether adopted before or after its enactment. RFRA has no termination date or termination mechanism. Any law is subject to challenge at any time by any individual who alleges a substantial burden on his or her free exercise of religion....

The stringent test RFRA demands of state laws reflects a lack of proportionality or congruence between the means adopted and the legitimate end to be achieved. If an objector can show a substantial burden on his free exercise, the State must demonstrate a compelling governmental interest and show that the law is the least restrictive means of furthering its interest. Claims that a law substantially burdens someone’s exercise of religion will often be difficult to contest. Requiring a State to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law.... This is a considerable congressional intrusion into the States’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens.

... It is a reality of the modern regulatory state that numerous state laws, such as the zoning regulations at issue here, impose a substantial burden on a large class of individuals. When the exercise of religion has been burdened in an incidental way by a law of general application, it does not follow that the persons affected have been burdened any more than other citizens, let alone burdened because of their religious beliefs. In addition, the Act imposes in every case a least restrictive means requirement--a requirement that was not used in the pre- Smith jurisprudence RFRA purported to codify--which also indicates that the legislation is broader than is appropriate if the goal is to prevent and remedy constitutional violations.

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.... Were it otherwise, we would not afford Congress the presumption of validity its enactments now enjoy.

Our national experience teaches that the Constitution is preserved best when each part of the government respects both the Constitution and the proper actions and determinations of the other branches. When 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.Marbury v. Madison. When 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. RFRA was designed to control cases and controversies, such as the one before us; but as the provisions of the federal statute here invoked are beyond congressional authority, it is this Court’s precedent, not RFRA, which must control.

It is for Congress in the first instance to “determin[e] whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,” and its conclusions are entitled to much deference. Congress’ discretion is not unlimited, however, and the courts retain the power, as they have since Marbury v. Madison, to determine if Congress has exceeded its authority under the Constitution. Broad as the power of Congress is under the Enforcement Clause of the Fourteenth Amendment, RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance. The judgment of the Court of Appeals sustaining the Act’s constitutionality is reversed. It is so ordered.

JUSTICE O'CONNOR, WHIM WHOM JUSTICE BREYER JOINS... DISSENTING. *

I dissent from the Court’s disposition of this case. I agree with the Court that the issue before us is whether the Religious Freedom Restoration Act (RFRA) is a proper exercise of Congress’ power to enforce §5 of the Fourteenth Amendment. But as a yardstick for measuring the constitutionality of RFRA, the Court uses its holding in Employment Div., Dept. of Human Resources of Ore. v. Smith (1990), the decision that prompted Congress to enact RFRA as a means of more rigorously enforcing the Free Exercise Clause. I remain of the view that Smith was wrongly decided, and I would use this case to reexamine the Court’s holding there. Therefore, I would direct the parties to brief the question whether Smith represents the correct understanding of the Free Exercise Clause and set the case for reargument. If the Court were to correct the misinterpretation of the Free Exercise Clause set forth in Smith, it would simultaneously put our First Amendment jurisprudence back on course and allay the legitimate concerns of a majority in Congress who believed that Smithimproperly restricted religious liberty. We would then be in a position to review RFRA in light of a proper interpretation of the Free Exercise Clause.

I agree with much of the reasoning ... of the Court’s opinion. Indeed, if I agreed with the Court’s standard in Smith, I would join the opinion. As the Court’s careful and thorough historical analysis shows, Congress lacks the “power to decree the substance of the Fourteenth Amendment’s restrictions on the States.” (Emphasis added.) Rather, its power under §5 of the Fourteenth Amendment extends only to enforcing the Amendment’s provisions. In short, Congress lacks the ability independently to define or expand the scope of constitutional rights by statute. Accordingly, whether Congress has exceeded its §5 powers turns on whether there is a “congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” This recognition does not, of course, in any way diminish Congress’ obligation to draw its own conclusions regarding the Constitution’s meaning. Congress, no less than this Court, is called upon to consider the requirements of the Constitution and to act in accordance with its dictates. But when it enacts legislation in furtherance of its delegated powers, Congress must make its judgments consistent with this Court’s exposition of the Constitution and with the limits placed on its legislative authority by provisions such as the Fourteenth Amendment....

Stare decisis concerns should not prevent us from revisiting our holding in Smith. “‘ [S]tare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience.’”Adarand Constructors, Inc. v. Pena (1995). This principle is particularly true in constitutional cases, where--as this case so plainly illustrates--“correction through legislative action is practically impossible.” Seminole Tribe of Fla. v. Florida(1996)....

Accordingly, I believe that we should reexamine our holding in Smith, and do so in this very case. In its place, I would return to a rule that requires government to justify any substantial burden on religiously motivated conduct by a compelling state interest and to impose that burden only by means narrowly tailored to achieve that interest....

* Authors’ note: Justice Breyer joins this dissent with the reservation that he does not agree with all of the points made in the second paragraph of the material excerpted here.