17 The Religious Freedom Restoration Act (RFRA) and the Response to Smith

The reaction to Smith was swift, bipartisan, and overwhelmingly critical. In contrast to today, where views on Free Exercise clause cases are often driven by partisan polarization and culture-war battles, Smith was condemned by liberals and conservative politicians alike. Liberals seized on Justice O’Connor’s concern that the neutrality framework would harm religious minorities who lacked the political influence to ensure their faith wasn’t burdened by state laws. Conservatives argued the decision did not properly prioritize religious freedom and weakened the clause’s protections, perhaps anticipating future evangelical objections to laws made within an increasingly socially liberal society. For both groups, the Court’s abandonment of Sherbert was a mistake. In the words of the House Judiciary Committee in 1993:

Though laws directly targeting religious practices have become increasingly rare, facially neutral laws of general applicability have nefariously burdened the free exercise of religion in the United States throughout American history.

Congressional outrage at the law soon led to the near-unanimous passage of the 1993 Religious Freedom Restoration Act (RFRA), best viewed as a legislative attempt to reverse Smith and restore Sherbert. The law mandated that neither states nor the federal government could burden sincerely held religious beliefs unless the law advanced compelling state interests, with the law’s means being the least restrictive means of achieving those interests.

Though politically popular, RFRA had a potential constitutional flaw. While Congress could easily bind itself (requiring future federal laws to abide by RFRA unless their text expressly said otherwise), regulating the states required using Section Five of the Fourteenth Amendment, which states that “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” In other words, Section Five gives Congress remedial powers to enforce the rights and liberties guaranteed by the Fourteenth Amendment against the states.

Here, however, Congress was not simply protecting established rights from state violation, but protecting a different interpretation of what those rights were. In other words, by enforcing a different standard than the one the Court had adopted in Smith, Congress created a potential separation of powers conflict, infringing on judicial supremacy of constitutional interpretation. Unsurprisingly, the Court reviewed RFRA and in Boerne v. Flores, struck it down as it applied to the states.

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Boerne v. Flores

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508 U.S. 520 (1993)

Facts: Following the Smith decision, Congress passed the Religious Freedom Restoration Act (RFRA), a law that essentially reasserted the Sherbert standard for both the federal government and state governments.

The Archbishop of San Antonio sought to expand his church in Boerne, Texas but was prevented from doing so because the church was located in a historic preservation district. Flores sued under RFRA; the city argued RFRA was unconstitutional as it applied to state and local zoning regulations. The District Court agreed with Flores, but the Fifth Circuit reversed.

Question: Did Congress exceed its Fourteenth Amendment remedial powers in applying RFRA to state governments?

Vote: Yes, 6-3

For the Court: Justice Kennedy

Concurring opinion: Justice Stevens

Concurring in part: Justice Scalia

Dissenting opinion: Justice Souter

Dissenting opinion: Justice Breyer

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.

I

Situated on a hill in the city of Boerne, Texas, some 28 miles northwest of San Antonio, is St. Peter Catholic Church. Built in 1923, the church’s structure replicates the mission style of the region’s earlier history. The church seats about 230 worshippers, a number too small for its growing parish. Some 40 to 60 parishioners cannot be accommodated at some Sunday masses. In order to meet the needs of the congregation the Archbishop of San Antonio gave permission to the parish to plan alterations to enlarge the building.

A few months later, the Boerne City Council passed an ordinance authorizing the city’s Historic Landmark Commission to prepare a preservation plan with proposed historic landmarks and districts. Under the ordinance, the commission must preapprove construction affecting historic landmarks or buildings in a historic district.

Soon afterwards, the Archbishop applied for a building permit so construction to enlarge the church could proceed. City authorities, relying on the ordinance and the designation of a historic district (which, they argued, included the church), denied the application. The Archbishop brought this suit challenging the permit denial in the United States District Court for the Western District of Texas.

The complaint contained various claims, but to this point the litigation has centered on RFRA and the question of its constitutionality. The Archbishop relied upon RFRA as one basis for relief from the refusal to issue the permit. The District Court concluded that by enacting RFRA Congress exceeded the scope of its enforcement power under § 5 of the Fourteenth Amendment. The court certified its order for interlocutory appeal and the Fifth Circuit reversed, finding RFRA to be constitutional. We granted certiorari, and now reverse.

II

Congress enacted RFRA in direct response to the Court’s decision in Employment Div., Dept. of Human Resources of Ore. v. Smith (1990) …

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…

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…

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.” …

III

A

… 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 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.” For example, the Court upheld a suspension of literacy tests and similar voting requirements under Congress’ parallel power to enforce the provisions of the Fifteenth Amendment as a measure to combat racial discrimination in voting, South Carolina v. Katzenbach (1966), despite the facial constitutionality of the tests… We have also concluded that other measures protecting voting rights are within Congress’ power to enforce the Fourteenth and Fifteenth Amendments, despite the burdens those measures placed on the States…

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

Congress’ power under § 5, however, extends only to “enforc[ing]” the provisions of the Fourteenth Amendment. The Court has described this power as “remedial.” 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…

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…

1

The Fourteenth Amendment’s history confirms the remedial, rather than substantive, nature of the Enforcement Clause… In February [1866], Republican Representative John Bingham of Ohio reported the following draft Amendment to the House of Representatives on behalf of the Joint Committee:

The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property.

The proposal encountered immediate opposition, which continued through three days of debate. Members of Congress from across the political spectrum criticized the Amendment, and the criticisms had a common theme: The proposed Amendment gave Congress too much legislative power at the expense of the existing constitutional structure…

The measure was defeated “chiefly because many members of the legal profession s[aw] in [it] … a dangerous centralization of power…”

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. The Bingham draft, some thought, departed from that tradition by vesting in Congress primary power to interpret and elaborate on the meaning of the new Amendment through legislation. Under it, “Congress, and not the courts, was to judge whether or not any of the privileges or immunities were not secured to citizens in the several States.” While this separation-of-powers aspect did not occasion the widespread resistance which was caused by the proposal’s threat to the federal balance, it nonetheless attracted the attention of various Members…

2

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…”

Recent cases have continued to revolve around the question whether § 5 legislation can be considered remedial. In South Carolina v. Katzenbach … we upheld various provisions of the Voting Rights Act of 1965, finding them to be “remedies aimed at areas where voting discrimination has been most flagrant.” …

3

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.”  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.

B

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. It prevents and remedies laws which are enacted with the unconstitutional object of targeting religious beliefs and practices…

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…. The absence of more recent episodes stems from the fact that, as one witness testified, “deliberate persecution is not the usual problem in this country.” … Rather, the emphasis of the hearings was on laws of general applicability which place incidental burdens on religion…

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…

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 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…

… Simply put, RFRA is not designed to identify and counteract state laws likely to be unconstitutional because of their treatment of religion. In most cases, the state laws to which RFRA applies are not ones which will have been motivated by religious bigotry…

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…

JUSTICE STEVENS, concurring.

In my opinion, the Religious Freedom Restoration Act of 1993 (RFRA) is a “law respecting an establishment of religion” that violates the First Amendment to the Constitution.

If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an enlargement of the structure. Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law. Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment.

JUSTICE SCALIA, with whom JUSTICE STEVENS joins, concurring in part.

I write to respond briefly to the claim of JUSTICE O’CONNOR’S dissent (hereinafter the dissent) that historical materials support a result contrary to the one reached in Employment Div., Dept. of Human Resources of Ore. v. Smith (1990) …

JUSTICE O’CONNOR, with whom JUSTICE BREYER joins except as to the first paragraph of Part I, 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 of 1993 (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…

I agree with much of the reasoning set forth in Part II I-A 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.” 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…

JUSTICE SOUTER, dissenting.

To decide whether the Fourteenth Amendment gives Congress sufficient power to enact the Religious Freedom Restoration Act of 1993, the Court measures the legislation against the free-exercise standard of Employment Div., Dept. of Human Resources of Ore. v. Smith (1990). For the reasons stated in my opinion in Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993) (opinion concurring in part and concurring in judgment) I have serious doubts about the precedential value of the Smith rule and its entitlement to adherence…

JUSTICE BREYER, dissenting.

I agree with JUSTICE O’CONNOR that the Court should direct the parties to brief the question whether Employment Div., Dept. of Human Resources of Ore. v. Smith (1990), was correctly decided, and set this case for reargument. I do not, however, find it necessary to consider the question whether, assuming Smith is correct, § 5 of the Fourteenth Amendment would authorize Congress to enact the legislation before us…

Flores was not the last word on whether neutrality or accommodation was the superior legal framework. Note that though struck down as applied to the states, RFRA continues to govern federal law. Similarly, just as Congress reacted negatively to Smith, many state legislatures passed their own versions of RFRA protections. Though states were no longer required to accommodate those burdened by neutral laws, many chose to do so.

Congress responded to Flores with a narrower statute, the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), that, as the title suggests, only applies the Sherbert test to state land use and zoning decisions, as well as state prisons. The constitutional hook for these decisions was federal spending: states that took federal money (as all do) in the relevant areas were required to abide by the Sherbert test in those policy areas as a condition of accepting that money (though the law itself no longer referred to prior Free Exercise cases). Despite state objections that RLUIPA violated the Establishment Clause by advancing religion over nonreligion (an argument made by Justice Stevens in Flores), the Court upheld the prison component of RLUIPA in 2005. To date, the land-use component has not been reviewed.