CITY OF BOERNE v. FLORES, 1996 U.S. S. Ct. Briefs LEXIS 761

No. 95-2074

Supreme Court of the United States

October Term, 1996

November 29, 1996

Reporter: 1996 U.S. S. Ct. Briefs LEXIS 761

CITY OF BOERNE, TEXAS, Petitioner, versus P.F. FLORES, ARCHBISHOP OF SAN ANTONIO, Respondent, and UNITED STATES OF AMERICA, Intervenor-Respondent.

Type: Brief

Prior History:  [1]



Lowell F. Denton, Esq., DENTON, McKAMIE & NAVARRO, 1700 Tower Life Building, 310 South St. Mary’s Street, San Antonio, Texas 78205, (210) 227-3243

Gordon L. Hollon, Esq., 101 N. Saunders, Boerne, Texas 78006, (210) 249-2521, Attorneys for Petitioner City of Boerne, Texas

Marci A. Hamilton, Esq., 482 Kings Road, Yardley, Pennsylvania 19067, (215) 493-1973 Counsel of Record





1. Whether Congress violated the separation of powers doctrine by legislatively overruling a Supreme Court determination of the scope of the Free Exercise Clause of the First Amendment.

2. Whether Congress violated the constitutional balance between its power under Section 5 of the Fourteenth Amendment and fundamental principles of federalism by commandeering state and local governments to be agents of a federal policy to accommodate religious exercise more than the Constitution requires.

3. Whether Katzenbach v. Morgan, 384 U.S. 641 (1966), should be overruled in part.

4. Whether Congress violated the Establishment Clause of the First Amendment by broadly [2] and exclusively privileging religion over other expressions of conscience.


Flores v. City of Boerne, 877 F. Supp. 355 (W.D. Tex. 1995), reprinted in Cert. Pet. App. 1 at 24a-29a; Flores v. City of Boerne, Texas, 73 F.3d 1352 (5th Cir. 1996), reprinted in Cert. Pet. App. at 1a-23a. Order Granting United States Leave to Intervene, March 13, 1995, reprinted in Cert. Pet. App. at 32a; Petition for Leave to Appeal an Interlocutory Order, granted May 9, 1995, reprinted in Jt. App. at 74; Order Treating the Suggestion for Rehearing En Banc as a Petition for Panel Rehearing, denied March 28, 1996, reprinted in Cert. Pet. App. at 30a.



The Fifth Circuit decision was reached on January 23, 1996; the petition for rehearing en banc, which was treated by the Fifth Circuit as a petition for rehearing, was denied on March 28, 1996. This Court has jurisdiction under 28 U.S.C. § 1254(1) (1994).


Religious Freedom Restoration Act, 42 U.S.C. § 2000bb1-4 (1993), reprinted in Cert. Pet. App. at 39a-42a; U.S. Constitution, Article III,§ 1, reprinted in Cert. Pet. App. at 35a; Amendment XIV, §§ 1, 5, reprinted in Cert. Pet. App. at 36a-38a; Amendment I, clauses 1, 2, reprinted in Cert. Pet. App. at 36a; Amendment X, reprinted in Cert. Pet. App. at 36a.


1. Facts. This case is about a request to tear down a beautiful stone church, whose times and memories are graven into the souls of a city. While the issue of the church’s precise historical value is a matter that has been left to trial, Jt. App. at 72, the City maintains that St. Peter Church, which was built in 1923, is a striking example of mission revival [10]  architecture self-consciously referring back to the original Spanish missions in South Texas. As one arrives in the City of Boerne, Texas, this highly visible church set on a hill speaks directly of the history of this City and its people. Klein Affidavit, Jt. App. at 43. The people of the City seek to preserve their community’s shared history as reflected in this familiar mission revival structure. Id.

With Ordinance 91-05, the City of Boerne enacted a historic preservation law intended to preserve and protect its rich history and culture. Recognizing that “rapid change in population, economic functions and land use activities” has threatened the distinctive historical character of its community, the City Council of Boerne passed its historic landmark preservation law for the following purposes:

(1) “To protect, enhance, and perpetuate selected historic landmarks which represent or reflect distinctive and important elements of the city’s and State’s architectural, archeological, cultural, social, economic, ethnic and political history . . . .”

(2) “To safeguard the City’s historic and cultural heritage . . . .”

(3) “To stabilize and improve property values in such locations.  [11]  ”

(4) “To foster civic pride in the beauty and accomplishments of the past.”

(5) “To protect and enhance the City’s attractions to tourists and visitors and provide incidental support and stimulus to business and industry.”

(6) “To strengthen the economy of the City.”

(7) “To promote the use of historic landmarks for the culture, prosperity, education and general welfare of the people of the City and visitors to the City.”

Cert. Pet. App. at 46a-48a.


Boerne’s historic preservation law represents years of effort on the part of the City and evidences the citizens’ commitment to their community’s heritage. On May 20, 1985, the City Council duly enacted Ordinance No. 85-11, which authorized the creation of a Landmark Commission. Jt. App. at 66. The Landmark Commission was appointed on November 10, 1987, began to explore the creation of a historic district on February 16, 1988, and held numerous meetings to discuss the historic district boundaries. Id. Three public hearings were held in 1990 to discuss and determine the historic district boundaries. Id.

Ordinance 91-05, which was enacted into law on June 25, 1991, codifies the City’s historical preservation policy [12]  goals; defines “historic landmark” and “historic district”; appoints and designates procedures for a “Historic Landmark Commission”; orders the Commission to prepare a landmark preservation plan; and designates procedures for the following: the acquisition and removal of historic landmark designation, the creation of historic districts, the evaluation of proposed exterior changes to structures within a historical district or a designated historic landmark, and the acquisition of a historic structure preservation tax exemption. Cert. Pet. App. at 46a-63a. Pursuant to Ordinance 91-05, the Historic Landmark Commission presented its recommendation for creation of the historic district to the Planning and Zoning Commission on October 1, 1991. Jt. App. at 67.

Respondent Flores was given notice of the December 3, 1991 hearing of the Planning and Zoning Commission and City Council for the creation of the historic district. Jt. App. at 69. Subsequently, Ordinance 91-15 added the historic overlay district to the City of Boerne zoning map on January 14, 1992. Jt. App. at 68. Ordinance 91-15 states that rapid changes in the local population, economy, and land use have led to the demolition of [13]  historical structures that “reflect the heritage of the state, and its people . . . so that the city, the state, and the nation are thereby losing a part of their heritage.” Jt. App. at 24.

There is no dispute that the City’s historic preservation ordinance covers at the least a substantial portion of the church. Flores v. City of Boerne, 73 F.3d 1352, 1354 (5th Cir. 1996).

On December 14, 1993, a building permit application was submitted on behalf of Respondent Flores for the purpose of demolishing and expanding St. Peter Church. Jt. App. at 67. A public hearing was held by the Landmark Commission to consider the application. Upon its determination that the proposed plan will adversely affect the historic district and is inappropriate or inconsistent with the spirit and purposes of Ordinance 91-05, the Landmark Commission advised the City Building Inspector, Mr. Ed Beasley, that the permit could not be approved until certain changes to the application were made. Jt. App. at 68-69. The letter stated that the Landmark Commission had employed the following criteria, which are taken from Sec. 6.1 of Ordinance 91-05, to determine that the application violated the ordinance:  [14]

1. Character, interest or value as part of the development, heritage or cultural characteristics of the City.

3. Embodiment of distinguishing characteristics of an architectural type or specimen.

5. Unique location of singular physical characteristics representing an established and familiar visual feature of a neighborhood, community or the City.

6. Value as an aspect of community sentiment or public pride.

The letter further stated: “Due to the structure’s historical importance to the community and our charge of protecting and preserving certain structures, areas, etc., deemed historical, any new plans shall not include demolition of the existing structure referred to as St. Peter’s Catholic Church.” Jt. App. at 39a. The City Building Inspector sent a letter to Respondent’s architect, Mr. Gregory Davis, confirming the denial of the permit by the Landmark Commission. Jt. App. at 60a.


Pursuant to Ordinance 91-05, Respondent Flores appealed the Landmark Commission’s decision to the City Council. After notice and a public hearing, the City Council voted to deny Respondent’s appeal. Jt. App. at 69. Representatives of both parties have considered [15]  alternative site designs but have been unable to reach an agreement. Jt. App. at 70. Respondent Flores filed this suit, pursuant to 28 U.S.C. § 1331, alleging inter alia that Ordinance 91-05 violates the Religious Freedom Restoration Act (“RFRA” or “the Act”), 42 U.S.C. § 2000bb (1993).

2. The District Court. Following certification of the question of RFRA’s constitutionality pursuant to28 U.S.C. § 2403(a) to the Attorney General of the United States, intervention of the United States, and briefing on the constitutional issue by all parties, the district court ruled that RFRA was facially invalid because “Congress specifically sought to overturn Supreme Court precedent as found in Employment Division v. Smith through the passage of RFRA,” Flores v. City of Boerne, 877 F. Supp. 355, 357 (W. D. Tex. 1995), and therefore infringed on the long-settled authority of the courts “‘to say what the law is.'” Id. (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). The court noted Congress’s power under Section 5 of the Fourteenth Amendment, but did not find it a persuasive basis [16]  for congressional authority in light of “Congress’ violation of the doctrine of Separation of Powers by intruding on the power and duty of the judiciary.” Flores, 877 F. Supp. at 357.

The district court certified its order for interlocutory appeal to the court of appeals pursuant to 28 U.S.C. § 1292(b). Cert. Pet. App. at 29a. Respondent Flores and the United States appealed the district court’s decision. The court of appeals accepted the appeal, treating it as a Fed. R. Civ. P. 54(b) partial final judgment. Jt. App. at 73.

3. The Court of Appeals. The court of appeals reversed on four grounds. First, the court held that Congress acted within its power under Section 5 of the Fourteenth Amendment on the theory that RFRA is remedial because it prohibits “budding or disguised constitutional violations,” “sprouting constitutional violations,” and “incipient constitutional violations.” Flores, 73 F.3d at 1359-60. The court applied the three-part test found in M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819):

Let the end be legitimate, let it be within the scope of the constitution, and all means which are [17]  appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.


The Fifth Circuit found that RFRA “may be regarded” as an enactment to enforce the Fourteenth Amendment, which incorporates the First Amendment. In support of its conclusion that RFRA enforces the First Amendment’s prohibitions against the states, the court cited legislative history regarding the “need for legislation to defend individuals, particularly those from minority religions, from generally applicable laws that burden the exercise of religion.” Flores, 73 F.3d at 1359.

The court then stated that RFRA is “plainly adapted to [the end of the First Amendment.]” Flores, 73 F.3d at 1360. The court agreed with the United States’ argument that “even if the Constitution only prohibits governmental action taken with the intent of interfering with religious exercise, Congress may go farther, as it did with RFRA, and prohibit conduct that has the effect of burdening the exercise of religion” on the ground that this Court had held in City of Rome v. United States, 446 U.S. 156, 177 (1980), [18]  that Congress may “prohibit laws with a racially discriminatory effect . . . as an appropriate method of promoting the Amendment’s purpose, even if the Constitution only prohibits laws with a racially discriminatory intent.” Flores, 73 F.3d at 1360. Further, the court reasoned, RFRA could be justified as an attempt to protect religious minorities, and that Congress “could reasonably conclude” that minority religions would be at a disadvantage in obtaining religious exemptions. Id.

The Fifth Circuit ruled that the third prong of the M’Culloch test, whether RFRA is consistent “with the letter and spirit of the constitution,” was satisfied because RFRA did not violate the separation of powers, the Establishment Clause, or the Tenth Amendment.

Second, the court addressed the City’s separation of powers challenge to RFRA. The City had argued that RFRA violates the separation of powers by permitting Congress to legislate an interpretation of the Constitution at odds with the Supreme Court’s interpretation. The City cited this Court’s statement in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), that it is the duty of the judiciary “to say what the law [19]  is.” Acknowledging that RFRA is a “direct response to the Supreme Court’s decision in Smith,” the court rejected the notion that RFRA “second-guess[es] the courts.” Flores, 73 F.3d at 1361. Rather, the court characterized RFRA as a statute regulating “nascent violations” of the Free Exercise Clause, in the sense that it dispenses with the requirement that discriminatory purpose be shown in order to ferret out substantial burdens on the free exercise of religion. Id.

The court of appeals also reasoned that because governments may accommodate religion more than the Free Exercise Clause requires, Congress has the power to force all governments to accommodate all religious conduct substantially burdened by a generally applicable law. It concluded: “In short, the judiciary’s duty is to say what the law is, but that duty is not exclusive.”Id. at 1363.

The court of appeals also termed as “facile” the United States’ argument that RFRA is merely a statute that “provides legislative protection for a constitutional right over and above that provided by the Constitution.” Flores, 73 F.3d at 1361. The court stated: “We will not pretend that RFRA is [20]  anything but a direct response to the Supreme Court’s decision in Smith.” Id. Nevertheless, the court upheld RFRA on the theory that Section 5 permits Congress “an extraordinary exercise of power.” Flores, 73 F.3d at 1362.

Third, the court rejected the City’s argument that RFRA violates the Establishment Clause by privileging religion on the ground that RFRA does not “amount to the Government coercing religious activity through ‘its own activities and influence.'” Flores, 73 F.3d at 1364 (quotingCorporation of Presiding Bishop v. Amos, 483 U.S. 327, 337 (1987)).

Finally, the court held that RFRA “on its face” does not violate the Tenth Amendment, but left “RFRA’s applicability to particular areas of state regulation . . . for individual, case-by-case resolution.” Id.

The City of Boerne filed a timely Petition for Writ of Certiorari in this Court, and on October 15, 1996, the writ was granted.


The Religious Freedom Restoration Act requires governments to accommodate religious conduct unless they can prove a “compelling interest” and that they have acted with the “least restrictive means.” 42 U.S.C. § 2000bb-1, [21]  reprinted in Cert. Pet. App. at 40a. It was enacted for the purpose of supplanting this Court’s interpretation of the Free Exercise Clause announced inEmployment Division v. Smith, 494 U.S. 872 (1990), with an interpretation more palatable to Congress.

The word “Restoration” in the Act’s title is a euphemism. In Smith, this Court announced that neutral, generally applicable laws are not subject to the compelling interest standard. Smith, 494 U.S. at 885. RFRA’s across-the-board, extraordinarily high standard requires more than this Court’s free exercise doctrine ever required, either in Smith or before Smith. This brazen attempt to take over free exercise law knows no parallel in congressional history and violates the separation of powers, federalism principles, and the Establishment Clause.

The courts’ core judicial function is to resolve Article III cases or controversies by reading and interpreting the relevant constitutional text. Under the guise of creating a “statutory” cause of action to support a legislatively-preferred reading of the Free Exercise Clause, Congress has taken over the judicial function of interpreting the Constitution in the course [22]  of adjudicating cases and controversies.

RFRA is not a valid exercise of Congress’s power under Section 5 of the Fourteenth Amendment. Under The Civil Rights Cases, 109 U.S. 3 (1883), Section 5 extends power to Congress solely to enforce constitutional guarantees. Id. at 11. The Act’s invalidation of every law that incidentally burdens the free exercise of religion, whether the law targets a particular religion or not, creates extra-constitutional rights and therefore exceeds Congress’s remedial power under Section 5.

This Court should lay to rest the “substantive power theory,” i.e., the notion that Congress may expand the scope of constitutional guarantees, which was an alternative holding in the Voting Rights Act cases, and which transgresses separation of powers and federalism concerns.

The Act oversteps federalism boundaries inherent in Section 5 by forcing state and local governments to abide by a statutory scheme that is not required by the Constitution.

RFRA violates the Establishment Clause by privileging religion over all other forms of conscience. It fails this Court’s test announced in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). [23]  It does not have a secular purpose. It is certainly not neutral in effect. It requires entanglement of church and state by requiring all governments to become intimately informed on the theological tenets of every religion in the relevant community in order to be able to enact a law that is the least restrictive means.


The Religious Freedom Restoration Act mocks the genius of the American Constitution’s structure. “From the standpoint of the . . . constitutional structure of this Nation, [the Religious Freedom Restoration Act] bring[s] us to a crossroad that is marked with a formidable ‘Stop’ sign. That sign compels us to pause before we [are carried] to the point of sanctioning Congress'” attempt to expand the scope of constitutional rights “by simple legislation.” Oregon v. Mitchell, 400 U.S. 112, 152 (1970) (Harlan, J., concurring in part and dissenting in part).

The success of the Constitution resides in the Framers’ fundamental insight that a division of duties, authority, and power is essential to avoiding the concentrations of power that irresistibly lead to tyranny. In James Madison’s words, “The accumulation of all powers, legislative,  [24] executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” The Federalist No. 47, at 301 (James Madison) (Clinton Rossiter ed., 1961). Acutely conscious of the history of tyranny in other countries and times, the Framers crafted a series of mechanisms intended to prevent the consolidation of too much power in any one institution. They separated the powers of the federal government into three branches, divided power between the federal and the state governments, and prohibited the union of church and state. With RFRA, Congress has disabled all three mechanisms, simultaneously transgressing three different constitutional boundaries.


The Religious Freedom Restoration Act is an undisguised attempt by Congress to overtake this Court’s core constitutional function and to reverse this Court’s statement of the meaning of the First Amendment’s Free Exercise Clause in Smith, 494 U.S. 872 (1990). See, e.g., The Religious Freedom Restoration Act of 1990: Hearings on H.R.  [25]  5377 Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 101st Cong., 2d Sess. 8, 9, 38, 41, 48 (1990). It rejects the Court’s announced standard, which does not apply the Free Exercise Clause to general and otherwise valid neutral laws that incidentally burden religious conduct, and replaces it with one more pleasing to Congress. See 42 U.S.C. § 2000bb(a)(4), Cert. Pet. App. at 39a (criticizing Smith standard); id. at §§ 2000bb(b)(1), 2000bb-1(a)-(c), Cert. Pet. App. at 40a (instituting compelling interest and least restrictive means tests whenever religious conduct is substantially burdened). “RFRA’s rewrite of the Free Exercise Clause . . . is but the vehicle by which Congress seeks to ride into the judicial reservation.” Eugene Gressman & Angela C. Carmella, The RFRA Revision of the Free Exercise Clause, 57 Ohio St. L.J. 65, 111 (1996).

A.  Separation of Powers Principles

Long settled constitutional doctrine holds that it is “emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803); U.S. Const. art.  [26]  III, §§ 1, 2. The Supreme Court, and only the Supreme Court, is the “ultimate interpreter of the Constitution.” Baker v. Carr, 369 U.S. 186, 211 (1962). The Supreme Court’s core constitutional function is to decide the meaning of the Constitution in the context of deciding Article III cases and controversies.

Where Congress or the President tries to overtake this core judicial function, it violates the separation of powers. “It remains a basic principle of our constitutional scheme that one branch of the Government may not intrude upon the central prerogatives of another.” Loving v. United States, 116 S. Ct. 1737, 1743 (1996) (citing Plaut v. Spendthrift Farm, Inc., 115 S. Ct. 1447 (1995)). The judicial branch has been characterized as the “least dangerous branch.” See Alexander M. Bickel, The Least Dangerous Branch (1962). Where its distinctive power to set constitutional standards of review has been usurped, it is the most irrelevant branch. In the words of Alexander Hamilton:

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as, a fundamental [27] law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

The Federalist No. 78, at 467 (Alexander Hamilton) (Clinton Rossiter ed., 1961). See also United States v. Nixon, 418 U.S. 683, 703 (1974);Plaut v. Spendthrift Farm, Inc., 115 S.Ct. 1447, 1463 (1995) (“The doctrine of separation of powers is a structural safeguard.”). The eminent constitutional scholar Thomas Cooley articulated the separation of powers problem embedded in RFRA in precise terms: the legislature “cannot compel the courts . . . to adopt a particular construction of a law [and] cannot… require of them a construction of the law according to its own views.” Thomas Cooley, Constitutional Limitations 94-95 (1868), cited with approval in Plaut, 115 S. Ct. at 1455-56.


“Congress simply lacks [28]  the constitutional authority to override the Court’s interpretation of the First Amendment.” Douglas Laycock & Oliver S. Thomas, Interpreting the Religious Freedom Restoration Act, 73 Tex. L. Rev. 209, 243 (1994). After this Court declared the meaning of the Free Exercise Clause in Smith, Congress had no latitude to introduce a competing standard and then to direct the courts to implement that standard in cases adjudicating free exercise interests.

With RFRA, Congress has overstepped the bounds of its legitimate constitutional powers and made real the “fear of legislative usurpation” that animated the Framers’ pivotal decision to institute a government of limited powers. Henry P. Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1, 32 (1983). In the end, this case is not about religious liberty, but rather about the power of Congress to alter the Constitution’s liberty-preserving structure.

Fortunately, “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 [29]  the crisis of the day.” New York v. United States, 505 U.S. 144, 187 (1992).

B.  The Supreme Court’s Free Exercise Doctrine

In 1990, this Court took the occasion of its decision in Employment Division v. Smith, 494 U.S. 872 (1990), to survey First Amendment Free Exercise doctrine. Reaffirming the approach that this Court has employed since its first free exercise decision, Reynolds v. United States, 98 U.S. 145 (1879), this Court explained that the compelling interest standard announced eighty-five years after Reynolds in Sherbert v. Verner, 374 U.S. 398 (1963), had been applied rarely in free exercise cases involving neutral, nondiscriminatory, generally applicable laws. Smith, 494 U.S. at 883-85. Justice Scalia, writing for the Court and joined by Chief Justice Rehnquist and Justices White, Stevens, and Kennedy, surveyed the doctrine as follows:

We have never invalidated any governmental action on the basis of the Sherbert test except the denial of unemployment compensation. Although we have sometimes purported to apply the Sherbert test in contexts other than that, we have always found the test satisfied.  [30]  In recent years we have abstained from applying the Sherbert test … In Bowen v. Roy, 476 U.S. 693 (1986), we declined to apply Sherbert analysis to a federal statutory scheme that required benefit applicants and recipients to provide their Social Security numbers … In Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439 (1988), we declined to apply Sherbert analysis to the Government’s logging and road construction activities on lands used for religious purposes by several Native American Tribes . . . In Goldman v. Weinberger, 475 U.S. 503, 106 S. Ct. 1310, 89 L.Ed.2d 478 (1986), we rejected application of the Sherbert test to military dress regulations that forbade the wearing of yarmulkes. In O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987), we sustained without mentioning the Sherbert test, a prison’s refusal to excuse inmates from work requirements to attend worship services.

Smith, 494 U.S. at 883-84 (citations omitted).


Even those in dissent in Smith agreed that the compelling interest test had not obtained in every context. Justices Brennan, Marshall and Blackmun joined the section [31]  of Justice O’Connor’s concurrence in the judgment in which she identified “contexts in which [the Court has] not traditionally required the government to justify a burden on religious conduct by articulating a compelling interest.” Id. at 900-01 (identifying cases involving the government’s conduct of its own internal affairs, military regulations and prison regulations as subject to deferential review).2


The Court continued: “Even if we were inclined to breathe into Sherbert some life beyond the unemployment compensation field, we would not apply it to require exemptions from a generally applicable criminal law … We conclude today that the sounder approach, and the approach in accord with the vast majority of our precedents, is to hold the [Sherbert] test inapplicable to… [free exercise] challenges [to generally applicable laws].” Id. at 885-86 (emphasis added). In other words, the compelling interest test was inconsistent with most of the Court’s free exercise precedents.

The Smith Court limited its discussion to the compelling interest test announced in Sherbert, not even referring to the least restrictive means test that appears in § 2000bb-1(b) of RFRA. In fact, the least restrictive means test has not been a staple of free exercise doctrine. It has never been used by this Court to invalidate a law and has been cited as a component of the standard of review for free exercise cases in only one case, Thomas v. Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707, 718 (1981). See also The Religious Freedom Restoration Act of 1991: Hearings on H.R. 2797 [33]  Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 102d Cong., 2d Sess. 380-81 (1992) (statement of Professor Ira C. Lupu) (“You will search the Supreme Court’s opinions in Yoder and Sherbert in vain for the [least restrictive means test].”).

The Smith Court explained its decision to follow the larger trend of its precedents rather than to extend the compelling interest test beyond the few cases employing it, saying:

Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs, and its determination to coerce or suppress none of them. Precisely because “we are a cosmopolitan nation made up of people of almost every conceivable religious preference,” Braunfeld v. Brown, 366 U.S., at 606, and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order.

Smith, 494 U.S. at 888.


Five months before RFRA was enacted,  [34]  the Court reaffirmed its commitment to its free exercise doctrine announced in Smith with its decision in Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). The opinion for the Court, written by Justice Kennedy and joined by Chief Justice Rehnquist and Justices Stevens, White, Scalia, and Thomas, declared: “In addressing the constitutional protection for free exercise of religion, our cases establish the general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.” Lukumi, 508 U.S. at 531. Although challenged to retreat from the Smith Court’s analysis by separate opinions authored by Justices Blackmun, id. at 577 (Blackmun, J., concurring in the judgment), and Souter, id. at 559 (Souter, J., concurring in part and concurring in the judgment), this Court adhered to the Smith analysis of free exercise doctrine. Congress ignored this manifest reaffirmation of the Court’s free exercise doctrine and enacted RFRA only months later.

C. Congress’s Hostile [35]  Response to Employment Division v. Smith

The plain language of RFRA, as well as its legislative history, make painfully clear that members of Congress read the Court’s thoughtful opinion in Smith with attention and therefore understood that the Court had declared that the First Amendment’s free exercise doctrine does not require strict scrutiny of neutral, nondiscriminatory, generally applicable regulations. 3Smith, 494 U.S. at 888. Not satisfied with the Court’s statement of the Free Exercise Clause, Congress, at the insistence of organized religions and civil liberties groups from around the country, drafted and enacted RFRA for the sole purpose of overturning Smith. 4


Any hopes that the Executive Branch’s veto power might have been exercised to halt this march into the judiciary’s terrain were dashed when President Clinton signed RFRA into law, saying RFRA “reverses the Supreme Court’s decision [in] Employment Division against Smith.” Remarks on Signing the Religious Freedom Restoration Act of 1993, II Pub. Papers 2000 (Nov. 16, 1993).

The Religious Freedom Restoration Act is nothing less than a competing interpretation of the Free Exercise Clause. In the Free Exercise context, it turns day to night. It transforms presumptively valid neutral, nondiscriminatory, and generally applicable laws into “presumptively invalid” laws. Smith, 494 U.S. at 888.

RFRA bears the hallmarks of a constitutional decision overruling a prior judicial precedent. The text of the Act is not in the least shy about declaring its constitutional character. The Act begins with the following declaration: “The framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution.” 42 U.S.C. § 2000bb(a)(1), Cert. Pet. App. at 39a. The Act goes [37]  so far as to define “exercise of religion” for purposes of the Act as “the exercise of religion under the First Amendment to the Constitution.” 42 U.S.C. § 2000bb-2(4), Cert. Pet. App. at 41a.

The Act’s scope is constitutional in nature, its sweep breathtaking. RFRA applies to every government and every law in the United States, past, present and future:

Every government. The Act defines “government” as including “a branch, department, agency, instrumentality, and official (or person acting under color of law) of the United States, a State, or a subdivision of a State.” 42 U.S.C. § 2000bb-2(1), Cert. Pet. App. at 41a.

Every law. The Act states that RFRA “applies to all Federal and State laws, and the implementation of that law, whether statutory or otherwise.” 42 U.S.C. § 2000bb-3(a), Cert. Pet. App. at 41a. The range of amici in support of Petitioner evidences the way in which RFRA invades every arena of government regulation: from the protection of children to historical preservation and urban planning to prison oversight. These in turn reflect only a small portion of the universe affected by [38]  RFRA.

Every time. The Act expressly applies to every law that was “adopted before or after November 16, 1993 [the date of RFRA’s enactment].” 42 U.S.C. § 2000bb-3(b), Cert. Pet. App. at 41a.

In direct and unmistakable contravention of Smith, Congress enacted into law the compelling interest test announced in Sherbert, stating, “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability [unless the law] is in furtherance of a compelling governmental interest.” 42 U.S.C. § 2000bb-1(a), reprinted in Cert. Pet. App. at 40a.

Congress also codified in RFRA a least restrictive means test, despite its insignificant role in free exercise cases. See 42 U.S.C. § 2000bb-1(b), reprinted in Cert. Pet. App. at 40a. In short, RFRA mandates a standard — the compelling interest test — that the Supreme Court expressly stated was not the traditional or the appropriate standard in free exercise cases, Smith, 494 U.S. at 884-85, and appends to it a test so infrequently invoked that the Smith Court found it unnecessary [39]  to address.

RFRA’s new standard marks a sea change from prior free exercise law. The least restrictive means test by itself transforms Smith’s presumption of validity for neutral, generally applicable laws into a standard that “will ultimately lead to striking down almost any statute on the ground that the Court could think of another ‘less restrictive’ way to write it.” Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 294-95 (1985) (Rehnquist, J., dissenting).

Predictably and ironically, in Congress’s headlong rush to “fix” free exercise law, Congress drafted a new free exercise standard. As the preceding description of the Court’s doctrine should make clear, the euphemistically-named Religious Freedom Restoration Act does not restore the free exercise doctrine in place before Smith but rather creates out of whole cloth a new free exercise standard characterized by a rigid, across-the-board standard not in evidence in the “vast majority” of the Court’s Free Exercise decisions before Smith was decided. Smith, 494 U.S. at 882-87; see also id. at 900-01 (O’Connor, J., concurring). Indeed, the most oppressive aspect of RFRA for governments [40]  — the least restrictive means test — is a virtual novelty in the free exercise arena. See supra part I.B. If what members of Congress intended to do was to restore prior law, they bungled the job rather seriously.

Congress has co-opted the Court’s interpretive role. As a direct result, the courts have been relegated in free exercise cases to the role of interpreting Congress’s inaccurate assessment of the Constitution, rather than their constitutionally appointed role of interpreting the Constitution itself.

RFRA’s defenders have attempted to gloss over its glaring separation of powers faults by stating that it is merely a “statutory” right over and above a constitutional floor set by the Court. The characterization of RFRA as a “mere statutory right,” however, is nothing more than a thin pretext for Congress’s attempt to overtake the Court’s appointed role in interpreting the Free Exercise Clause of the First Amendment. See M’Culloch v. Maryland, 17 U.S. (4 Wheat) 316 (1819) (“The judicial department . . . will decide whether the connection is real, or assumed as the pretext for the usurpation of powers not belonging to the government.”). The lower courts have had [41] little patience with this misleading defense of RFRA. See Flores, 73 F.3d at 1361;Hamilton v. Schriro, 74 F.3d 1545, 1563 (8th Cir. 1996) (McMillian, J., dissenting); Hodge v. Magic Valley Evangelical Free Church, Inc., 200 B.R. 884, 900-01 (Bankr. D. Idaho 1996);Keeler v. Mayor & City Council of Cumberland, 928 F. Supp. 591, 599 (D. Md. 1996).

D.  RFRA Must Be Struck to Preserve the Balance of Power Between the Court and Congress

The Supreme Court bears responsibility to delineate the constitutional scope of congressional power to legislate. See United States v. Lopez, 115 S. Ct. 1624, 1639-40 (1995) (Kennedy, J., concurring); Miller v. Johnson, 115 S. Ct. 2475, 2491 (1995). As then-Justice Rehnquist has stated,

While the presumption of constitutionality is due to any act of a coordinate branch of the Federal Government or of one of the States, it is this Court which is ultimately responsible for deciding challenges to the exercise of power by those entities.

City of Rome, 446 U.S. at 207 (Rehnquist, J., dissenting). RFRA’s transgression of judicial power overcomes [42]  this presumption of constitutionality. “To allow a simple majority of Congress to have final say on matters of constitutional interpretation is . . . fundamentally out of keeping with the constitutional structure.” Mitchell, 400 U.S. at 205 (Harlan, J., concurring in part and dissenting in part).

In essence, Congress has instructed the Supreme Court how to interpret the Free Exercise Clause of the First Amendment (that is, apply the compelling interest test), even though the Court, the entity charged by the Constitution with its application, has determined that the compelling interest test is neither feasible nor required. It hardly needs to be said that where Congress and the Supreme Court are so clearly at odds with each other over the definition of a fundamental right, the conflict presents an obvious and serious threat to the delicate balance of the separation of power.

Hamilton, 74 F.3d at 1566 (McMillian, J., dissenting).


There is nothing ambiguous about RFRA’s separation of powers violation. This Court’s statement of the free exercise standard in Smith was stated in plain terms. And Congress’s act of overriding that standard is [43]  unmistakable in the title, the plain language of the Act, and in its legislative history. 5 Never before has the Court’s constitutional preserve of power been compromised to this extent. RFRA is nothing short of a hostile takeover of this Court’s constitutionally appointed role in free exercise cases.

Without a doubt, religious liberty is at the heart of this country’s experiment with democracy. This Court stated in Smith that governments could and would accommodate religion with specific exemptions from generally applicable laws. See Smith, 494 U.S. at 890 (“Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process. . . . [A] society that believes in the negative protection accorded to religious belief [44]  can be expected to be solicitous of that value in its legislation as well.”). But the power of accommodation does not make any and every congressional foray into the free exercise preserve safe from constitutional error. However Congress may act to protect religious liberty, it must not be permitted to enter this deeply important arena by undermining the courts’ authority to interpret the Constitution.

To restore the balance of power between Congress and the Court intended by the Framers to ensure liberty, the Religious Freedom Restoration Act must be struck down. 6



Section 5 of the Fourteenth Amendment states: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” U.S. Const. amend. XIV, § 5. “This article,” is the Fourteenth Amendment, which provides a set of constitutional guarantees against the states. By the plain language of Section 5, Congress may enforce only constitutional guarantees contemplated by the Fourteenth Amendment. 7 There is not the least intimation that Congress has the power to enforce its policy predilections beyond constitutional guarantees. See City of Rome, 446 U.S. at 206 (Rehnquist, J., dissenting); Mitchell, 400 U.S. at 152 (Harlan, J., concurring in part and dissenting in part). Congress’s attempt with RFRA to force state and local governments to accommodate religious conduct more than this Court has said the Constitution requires runs headlong over a dangerous precipice. 8 A decision to uphold RFRA would overruleThe Civil Rights Cases, 109 U.S. 3, 11 (1883), which were decided in the [46]  same era as the passage of the Fourteenth Amendment, and in which the Court stated that Section 5 “invests Congress with power to enforce it by appropriate legislation. To enforce what? To enforce the prohibition [found in the Fourteenth Amendment] . . .”


The Religious Freedom Restoration Act “does not [48]  profess to be corrective of any constitutional wrong committed by the States; it does not make its operation to depend upon any such wrong committed.” The Civil Rights Cases, 109 U.S. at 11. Indeed, the Act makes no pretense to enforce only the constitutional guarantees against specifically targeted legislation recognized as unconstitutional in Smith and redressed in Lukumi. Smith, 494 U.S. at 872;Lukumi, 508 U.S. at 520. Rather, the Act was intended to prohibit all substantial burdens on “a person’s exercise of religion even if the burden results from a rule of general applicabilty . . . .” 42 U.S.C. § 2000bb-1(a), Cert. Pet. App. at 40a. See also 42 U.S.C. § 2000bb(a)(4), Cert. Pet. App. at 39a (stating that Smith “eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion . . . .”); H.R. Rep. No. 88, 103d Cong., 1st Sess. 1239 (1993) (“The test applies whenever a law or an action taken by the government to implement a law burdens a person’s exercise of religion.”). The purpose of the Act is to supplant Smith, not to reinforce [49]  it. Thus, RFRA directs courts to enforce wholly extra-constitutional “rights,” moving it well beyond the preserve of Section 5 power.

A.  RFRA Is Unlike Any Other Statute

The various Section 5 arguments of RFRA’s defenders boil down to one claim: the Court has upheld similar statutes before. That is, emphatically, untrue for two reasons.

First, and without a doubt, the Religious Freedom Restoration Act is in a class by itself. This is the first time Congress has attempted to preempt this Court’s declared standard of review. Never before has Congress attempted to take the reins from the Court over a clause of the First Amendment, or, for that matter, over any clause of the Constitution.

The only congressional action that bears a surface resemblance to RFRA’s blatant attempt to trump this Court’s constitutional determination is the Human Life Bill, which was intended to overrule Roe v. Wade, 410 U.S. 113 (1973). See The Human Life Bill, S. 158, 97th Cong., 1st Sess. (1981). That bill faltered in part because of concerns raised about the constitutionality of Congress overruling a decision by the Supreme Court. Senator Orrin Hatch, one of its primary sponsors,  [50]  refused to vote in favor of the Bill on the grounds that it overturned this Court’s decision in Roe v. Wade, and therefore exceeded congressional authority under Section 5 of the Fourteenth Amendment. Staff of Subcomm. on Separation of Powers of Senate Comm. on the Judiciary, 97th Cong., 1st Sess., Report on Human Life Bill, S. 158, together with additional and minority views 35 (Comm. Print 1981). RFRA, with its broad sweep, strays into the judiciary’s terrain even more than the Human Life Bill, which affected only one issue — abortion — within the Court’s privacy doctrine. RFRA stands by itself.

Second, the cases on which RFRA’s defenders rely simply do not hold that Congress may reverse a Supreme Court decision by altering the standard of review in any, let alone all, cases.

B.  RFRA Is Inconsistent With the Enumerated Power Requirement Announced in M’Culloch v. Maryland

The test for determining whether a statute is consistent with the enumerated power requirement was announced by this Court in M’Culloch, 17 U.S. (4 Wheat.) at 421:

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which [51]  are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

See also Ex Parte Virginia, 100 U.S. (10 Otto) 339 (1879). The Religious Freedom Restoration Act fails all three prongs of the M’Culloch test applied by the Fifth Circuit.


1.  The Religious Freedom Restoration Act Is Not Within the Scope of the Constitution

The Fifth Circuit erred in its holding that RFRA enforces guarantees to be found in the Fourteenth Amendment. The court of appeals’ error lies in its failure to grasp this Court’s free exercise doctrine. The court of appeals employs RFRA as its benchmark for constitutional protection, assuming that all substantial burdens on the exercise of religion automatically trigger constitutional protection. Flores, 73 F.3d at 1355. That view, however, is plainly rejected by this Court in Smith and Lukumi. See Smith, 494 U.S. at 881;Lukumi, 508 U.S. at 531. Neutral, generally applicable laws that incidentally burden religious exercise do not trigger close judicial review in free exercise cases. As Justice Scalia stated in his concurrence [52]  in Lukumi:

The terms “neutrality” and “general applicability” are not to be found within the First Amendment itself, of course, but are used in Employment Div., Dept. of Human Resources of Oregon v. Smith, and earlier cases to describe those characteristics which cause a law that prohibits an activity a particular individual wishes to engage in for religious reasons nonetheless not to constitute a “law . . . prohibiting the free exercise” of religion within the meaning of the First Amendment.

508 U.S. at 557 (Scalia, J., concurring in part and concurring in the judgment).


The guarantee against all substantial burdens on religious exercise is located in a congressional enactment, RFRA, not a constitutional source. As such, RFRA is not “within the scope of the constitution.” M’Culloch, 17 U.S. (4 Wheat) at 421.

2.  The Religious Freedom Restoration Act Is Not Plainly Adapted to Achieve Constitutional Ends

Nor is RFRA “plainly adapted to” constitutional ends. As the preceding discussion makes clear, RFRA is designed to fill in a perceived gap in free exercise protection left open by Smith, not to enforce rights guaranteed by the Constitution.  [53]  The Fifth Circuit found this prong satisfied on the basis of this Court’s decisions in Katzenbach v. Morgan, 384 U.S. 641 (1966), and City of Rome v. United States, 446 U.S. 156 (1980), holding that Congress properly exercised its remedial power under Section 5 when it enacted RFRA. Flores, 73 F.3d at 1356-57. The remedial power found in these cases, however, does not justify RFRA.

Defenders of RFRA have also posited that RFRA is “plainly adapted to” constitutional ends because Section 5 gives Congress the power to expand the substantive scope of constitutional guarantees. This is the substantive power theory. The following discussion of Congress’s Section 5 power will first address the remedial power theory and then the substantive power theory.

a. The Remedial Power Theory. Congress offered no basis for the exercise of its power in RFRA other than Section 5, specifically citing the Voting Rights Act cases. 9 Section 5 gives Congress the power to “enforce” or remedy, constitutional guarantees secured by the Fourteenth Amendment. Congress missed the mark. The Voting Rights Act cases simply do not stand for the proposition that Congress may [54]  “remedy” potential constitutional violations by