City of Boerne v. Flores, 521 U.S. 507 (1997)
The First Amendment provides that ‘‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’’ The right freely to engage in the rituals and observances of the religion of one’s choice, without undue governmental interference, is one of the most cherished guarantees of the Bill of Rights. Exactly what criteria courts should apply to determine when this right has been violated has been the subject of sharp controversy over the years.
The Supreme Court required strict judicial scrutiny of this issue in a 1963 free exercise case, Sherbert v. Verner. There, the Court held that statutes which substantially burden the practice of religion will pass constitutional muster only if they are shown to be necessary to advance some compelling governmental interest. But in 1990, the Court relaxed that standard. In Employment Division v. Smith, a case upholding a ban on the use of peyote, the Court held that such a law does not offend the First Amendment if the burden it imposes on the free exercise of religion is merely an incidental effect of a generally applicable measure, and the law’s objective is something other than interference with religious practice.
Congress responded to the public outcry over Smith by enacting, by a nearly unanimous vote, the Religious Freedom Restoration Act of 1993 (RFRA). RFRA expressly codified as federal law the previous standard of constitutional protection in free exercise cases, providing that ‘‘government shall not substantially burden a person’s exercise of religion’’ unless the burden is justified by a compelling governmental interest, and does so by the least restrictive means available.
City of Boerne presented the first major test of RFRA. P.F. Flores, as archbishop of San Antonio, applied for a building permit to enlarge St. Peter Catholic Church, a small, aging structure in the city of Boerne, Texas. The permit was denied based on the city’s recent designation of a historic preservation district that included St. Peter. The archbishop sued, alleging that the permit denial violated RFRA.
It is indisputable that the city’s actions would not have violated the free exercise clause under the standard established by Employment Division v. Smith. Nothing in the city’s creation of a historic preservation district, or the denial of a permit to enlarge a structure within that district, showed an intention to restrict the practice of any religion. The historic preservation regulations applied uniformly to all properties within the designated area, regardless of their use. Thus, the church’s case depended on invoking the tougher protections set out in RFRA. The city’s refusal to allow any enlargement of St. Peter could be said to substantially burden the parishioners’ exercise of their religion, since the record indicated that forty to sixty people per week were unable to celebrate Sunday mass at the church because of its inadequate capacity. Moreover, the denial could not be justified by a compelling governmental interest in preventing the expansion of St. Peter, nor did it meet RFRA’s requirement of narrow tailoring.
In its defense, the city argued that RFRA was unconstitutional because it exceeded Congress’s authority. In a majority opinion written by Justice Kennedy, the Supreme Court agreed and struck down the law as beyond Congress’s enforcement powers under the Fourteenth Amendment.
The federal government has only those powers specifically granted to it by the Constitution. In enacting RFRA, Congress relied on the provision of Section 5 of the Fourteenth Amendment: ‘‘The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.’’ Justice Kennedy acknowledged that Section 5 authorizes Congress to enact laws enforcing the constitutional right of free exercise of religion, which is deemed included within the Fourteenth Amendment’s guarantee of due process of law. Such laws, however, must be remedial or preventive in nature, not substantive. In determining whether legislation is within Congress’s Section 5 power, the Court will look for ‘‘congruence and proportionality’’ between the constitutional injury Congress seeks to redress, and the means adopted to prevent or remedy it.
In this case, the Court found that RFRA restricted the states’ regulatory powers even more extensively than had the test set out by Smith, yet Congress had articulated no history of state discrimination against religion sufficient to justify such a response. Under the doctrine of separation of powers, only the Supreme Court itself may define the substantive restrictions imposed on the states by the Fourteenth Amendment. Legislation such as RFRA that effectively alters the Court’s determination of the meaning of the free exercise clause, cannot be said to be enforcing the clause, and therefore exceeds the authority granted to Congress by Section 5.
This decision is significant for its express declaration that only the judicial branch has the authority to determine what constitutes a violation of the free exercise clause—and by extension, of all other constitutional provisions incorporated into the Fourteenth Amendment. It also set out a new standard for determining whether Congress has exceeded its enforcement powers under Section 5. The Court has applied City of Boerne’s ‘‘congruence and proportionality’’ test in a variety of contexts since first enunciating it in 1997.
In response to this decision, Congress once again sought to extend heightened protection to religious liberties, this time via enactment of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). Instead of broadly targeting all laws of general applicability that might burden the exercise of religion, RLUIPA targeted violations in two discrete contexts—land use controls and policies towards institutionalized persons. Like RFRA, the new law mandated strict judicial scrutiny in reviewing regulations that would substantially burden an individual’s religious exercise in these contexts, but RLUIPA was buttressed with findings showing proportionality between the impact of such regulations and the need for close judicial review. Finally, congressional authority to enact RLUIPA was anchored in the Constitution’s commerce and spending clauses, not the Fourteenth Amendment. Largely because of these efforts to avoid the constitutional problems identified in City of Boerne, the constitutionality of RLUIPA was upheld in Cutter v. Wilkinson.
R. S. RADFORD and NEAL DEVINS
References and Further Reading
- Cookson, Catharine. Regulating Religion: The Courts and the Free Exercise Clause. New York: Oxford, 2001
- DeBusk, Thomas L., RFRA Came, RFRA Went; Where Does That Leave the First Amendment? A Case Comment on City of Boerne v. Flores, Regent University Law Review 10 (1998): 223
- Mallamud, Jonathan, Religion, Federalism and Congressional Power: A Comment on City of Boerne v. Flores, Capital University Law Review 26 (1997): 45
Cases and Statutes Cited
- Cutter v. Wilkinson, 125 S.Ct. 2113 (2005)
- Employment Division v. Smith, 494 U.S. 872 (1990)
- Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb et seq
- Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc et seq
- Sherbert v. Verner, 374 U.S. 398 (1963)