City of Boerne v. Flores: A Summary
by Claire Prestel

The seemingly innocuous creation of a Historic Landmark Commission in Boerne, Texas led eventually to the Supreme Court's decision, in City of Boerne v. Flores, 521 U.S. 507 (1997), to strike down as unconstitutional the Religious Freedom Restoration Act (RFRA) of 1993. The Landmark Commission designated a historic district in Boerne and, in doing so, interfered with the renovation and expansion plans of a local Catholic church. Denied the building permit necessary for renovation, Archbishop Flores brought suit against the City relying, in part, on RFRA in his claim for relief. The District Court responded by declaring the Act itself unconstitutional, but the 5th Circuit reversed. The Supreme Court reversed again, finding passage of the Act beyond the scope of Congress' 14th Amendment enforcement power.

The Religious Freedom Restoration Act was passed by Congress in response to a Supreme Court decision (Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990)) affirming the denial of unemployment benefits to Native American Church members who lost their jobs after using peyote . In deciding Smith, the Court refused to apply the balancing test set forth in Sherbert v. Verner, 374 U.S. 398 (1963), which would have required the Court to ask whether Oregon's prohibition of peyote use "substantially burdened a religious practice" and, if so, whether the burden was justified by a "compelling government interest." n1 The Court's decision not to rely on the Sherbert test (but to find instead that neutral laws can be applied to religious practices even when those laws are not supported by a compelling state interest) infuriated Congress. The Religious Freedom Restoration Act reinstated the Court's Sherbert test by prohibiting the substantial burdening of a person's religious practice absent a compelling government interest and proof that the statute is using the "least restrictive means" available. n2 The Act was meant to apply to state and local law and was passed pursuant to Congress' right to "enforce . . . by appropriate legislation" the due process protection of the 14th Amendment (the 1st Amendment right to free exercise of religion has long been understood as part of the 14th Amendment due process guarantee).

Justice Kennedy begins his Boerne majority opinion by emphasizing, as Chief Justice Rehnquist does in Lopez, that our government is one of limited and enumerated powers. The 14th Amendment's Enforcement Clause has, Kennedy insists, never been understood to grant Congress anything approaching unrestrained legislative authority. Instead, congressional laws passed pursuant to the Enforcement Clause, though always given some measure of deference by the Court, are limited by the requirement that they be only "remedial" in nature. n3 Remedial congressional acts may be "preventive," but Congress may not act to substantively create or change the 14th Amendment's restrictions on the States. n4 Justice Kennedy tracks this remedial/substantive distinction through the 14th Amendment's legislative history and through the Supreme Court's related case law. He notes that an earlier version of the 14th Amendment which would have given Congress a plenary power was rejected as threatening the federal system by encouraging too much congressional interference with traditionally state-controlled areas of the law. By creating rights whose very existence would depend on congressional action, that earlier version of the Amendment (which allowed Congress "to make all laws . . . necessary and proper to secure to the citizens of each State" the protections of the 14th Amendment) gave the legislature primary authority in interpreting the new amendment's protections. n5 The 14th Amendment as enacted, however, creates self-executing rights and retains the interpretive power of the judiciary.

Kennedy cites the Civil Rights Cases as the Court's first articulation of Congress' 14th Amendment power: "the Court [in the Civil Rights Cases] . . . 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 .. . . .'" n6 Kennedy then turns to a series of voting rights cases for additional support. Those cases - striking down literacy tests and upholding the Voting Rights Act of 1965 - did not create new substantive rights, Kennedy insists. They simply responded to and remedied blatant practicies of exhaustively documented and patently unconstitutional race discrimination. Even the decision in Katzenbach v. Morgan, which Kennedy admits "could be interpreted as acknowledging a power in Congress to enact legislation that expands the rights contained in . . . the Fourteenth Amendment," is best understood as resting on "unconstitutional discrimination by New York and Congress' reasonable attempt to combat it." n7 When Congress did pass a voting rights provision not clearly responsive to unconstitutional race discrimination, the Court struck it down as exceeding the 14th Amendment enforcement power. (Oregon v. Mitchell, 400 U.S. 112 (1970) (striking down a law requiring states to lower the voating age from 21 to 18)).

Having established that the 14th Amendment enforcement power extends only to remedial or preventive legislation, Justice Kennedy considers whether RFRA falls in either category. The government argues that RFRA prevents and remedies laws enacted with the unconstitutional object of targeting religious beliefs and practices. Since proving such intentional targeting is difficult, supporters of the Act say Congress may simplify the process by invalidating any law which imposes a substantial burden without a compelling state interest. Kennedy rejects these arguments. Though he recognizes that preventive legislation is at times an appropriate remedial measure, Kennedy suggests that purely preventive legislation must be "considered in light of the evil presented": "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." n8 Kennedy finds RFRA "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." n9 In contrast to the Voting Rights Act, RFRA responds to no proven or comprehensive system of discrimination. In fact, Kennedy argues that many, if not most, of the laws threatened by RFRA will most likely be passed with no unconstitutional intent. The "[s]weeping coverage" of the Act will ensure "its intrusion at every level of government, displacing laws and prohibiting official actions of almost every discription and regardless of subject matter." n10 This substantial burden placed on state and local government (including the "least restrictive means" test which was never a part of the Court's pre-Smith jurisprudence) is not balanced by the Act's benefits and cannot be understood as remedial. For this reason, Kennedy find the Act unconstitutional, as it is beyond Congress' 14th Amendment power to create new substantive 14th Amendment rights.

Justice O'Connor, in a dissent joined in large part by Justice Breyer, argues that the Court in Boerne is simply repeating a mistake originally made in Smith. O'Connor believes that Smith itself was wrongly decided and should be reconsidered by the Court. According to O'Connor, the decision in Smith that generally applicable laws can prohibit, without justification, conduct mandated by an individual's religious beliefs is not in keeping with the Court's traditional understanding of the Free Exercise clause. And though O'Connor agrees with the majority that Congress can only rely on its 14th Amendment power to pass remedial, not substantive, measures, she believes the Court's consideration of the RFRA's constitutionality would be rendered unnecessary by a reassessment of Smith and a corrected interpretation of the right to free exercise of religion. For O'Connor, the Free Exercise Clause is not just "an antidiscrimination principle" that protects against "those laws that single our religious practice for unfavorable treatment." n11 It is, instead, "an affirmative guarantee of the right to participate in religious practices and conduct without impermissible governmental interference, even when such conduct conflicts with a neutral, generally applicable law." n12

The bulk of O'Connor's opinion is focused on the historical understanding of the Free Exercise Clause as an affirmative protection of religious freedom. O'Connor cites colonial practices and the words of our Founding Fathers as proof that "free exercise" has been understood to require that generally applicable laws give way to religious practice unless necessary to achieve a significant government interest in the least restrictive way possible. Generally applicable laws - like laws related to conscription or oath requirements - were not originally exempted from this balancing requirement, and O'Connor thinks such an exemption is inappropriate today. She argues that in several lower court cases, the Smith rationale has done real harm to religious practice and has threatened a 1st Amendment right which, like the right to free speech, should be accorded the greatest protection.

For a summary of the concurrence written by Justice Stevens, go here.

For a summary of the concurrence written by Justice Scalia, go here.

For a summary of the dissent written by Justice Souter, go here.

For a summary of the dissent written by Justice Breyer, go here.

Additional Concurrences and Dissents

In concurrence, Justice Stevens writes that the Religious Freedom Restoration Act, by expressing a preference for religion as opposed to irreligion, violates the 1st Amendment. The Act, according to Stevens, gives churches "a legal weapon that no atheist or agnostic can obtain." n13

Justice Scalia, joined (for the most part) by Justice Stevens, writes in his concurrence that Justice O'Connor has misinterpreted the historical record in her criticism of the Court's Smith holding. In fact, Scalia claims, the material cited by O'Connor - statments made by the Framers, and early statutory and legislative protection of the free exercise right - either contains little of relevance or is actually more consistent with Smith than with the dissent's interpretation. Scalia also points out that no early state or federal case refused to enforce a generally applicable law because it interfered with religious practice. Given this understanding of the historical record, Scalia re-affirms the Court's holding in Smith that individuals must obey generally applicable laws even if those laws do not accommodate a particular religious belief.

Justice Souter writes a separate dissent to protest the Court's continued reliance on the Smith understanding of the Free Exercise Clause. Souter is unwilling to join either the majority or the dissent because the Court has never taken briefs or heard arguments on the merits of that rule (the original parties to Smith never briefed or argued the issue). Souter would dismiss the writ of certiorari as the Court is unprepared to decide the constitutionality of the RFRA.

Justice Breyer (who joins much of Justice O'Connor's dissent) writes separately to emphasize that the case should be reargued after the parties are given time to address the Court's Smith holding. Breyer does not (in contrast to O'Connor) think it necessary to consider whether, assuming Smith was correctly decided, the 14th Amendment enforcement power authorizes passage of the RFRA.


n1: Boerne, 521 U.S. at 513.

n2: Id. at 516.

n3: South Carolina v. Katzenbach, 383 U.S. 301, 326 (1966).

n4: Boerne, 521 U.S. at 524.

n5: Id. at 520.

n6: Id. at 525.

n7: Id. at 528.

n8: Id. at 530.

n9: Id. at 532.

n10: Id.

n11: Id. at 546 (O'Connor, J., dissenting).

n12: Id.

n13: Id. at 537 (Stevens, J., concurring).