CITY OF BOERNE, PETITIONER v. P. F. FLORES, ARCHBISHOP OF
SAN ANTONIO, AND UNITED STATES
No. 95-2074
SUPREME COURT OF THE UNITED STATES
521 U.S. 507; 117 S. Ct. 2157; 138 L. Ed. 2d 624; 1997
U.S. LEXIS 4035; 65 U.S.L.W. 4612; 74 Fair Empl. Prac. Cas.
(BNA) 62; 70 Empl. Prac. Dec. (CCH) P44,785; 97 Cal. Daily
Op. Service 4904; 97 Daily Journal DAR 7973; 1997 Colo. J.
C.A.R. 1329; 11 Fla. L. Weekly Fed. S 140
February 19, 1997, Argued
June 25, 1997, Decided
PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT, Reported at: 1996 U.S. App. LEXIS 762.
DISPOSITION: 73 F.3d 1352, reversed.
DECISION:
In case involving zoning ordinance as applied to church, Religious Freedom
Restoration Act of 1993 (42 USCS 2000bb et seq.) held beyond Congress' power to
enact under 5 of Federal Constitution's Fourteenth Amendment.
SUMMARY:
Formerly, in cases such as Sherbert v Verner (1963) 374 US 398, 10 L Ed 2d
965, 83 S Ct 1790, and Wisconsin v Yoder (1972) 406 US 205, 32 L Ed 2d 15, 92 S
Ct 1526, the United States Supreme Court applied a test under which--for
purposes of determining whether a governmental regulation violated the Federal
Constitution's First Amendment clause providing a right to the free exercise of
religion--the court asked (1) whether the regulation substantially burdened a
religious practice, and (2) if so, whether the burden was justified by a
compelling governmental interest. However, in Employment Div. v Smith (1990) 494
US 872, 108 L Ed 2d 876, 110 S Ct 1595, the Supreme Court held that under the
free exercise clause, neutral laws of general applicability may be applied to
religious practices even when not supported by a compelling governmental
interest. In direct response, Congress enacted the Religious Freedom Restoration
Act of 1993 (RFRA) (42 USCS 2000bb et seq.). Among other provisions, the RFRA
(1) recited that one of its purposes was to "restore" the compelling-interest
test as set forth in Sherbert v Verner and Wisconsin v Yoder; (2) prohibited a
government--federal, state, or local--from substantially burdening a person's
exercise of religion, even if the burden resulted from a rule of general
applicability, unless the government could demonstrate that the burden was in
furtherance of a compelling governmental interest and was the least restrictive
means of furthering that interest; and (3) made the RFRA applicable to all
federal or state law and the implementation of that law, whether statutory or
otherwise and whether adopted before or after the RFRA's enactment. In the case
at hand, an archbishop applied for a building permit to enlarge a church in a
Texas city, but local zoning authorities--relying upon a city ordinance
concerning historic landmarks and districts--denied the application. The
archbishop then (1) filed suit against the city in the United States District
Court for the Western District of Texas, (2) sought relief from the refusal to
issue the permit, and (3) cited the RFRA as one basis for relief. However, the
District Court, staying trial pending appeal, concluded that Congress, in
enacting the RFRA, had exceeded the scope of Congress' enforcement power under 5
of the Constitution's Fourteenth Amendment (877 F. Supp 355, 1995 US Dist LEXIS
3675). On interlocutory appeal, the United States Court of Appeals for the Fifth
Circuit, in reversing and remanding, expressed the view that the RFRA was
constitutional (73 F.3d 1352, 1996 US App LEXIS 762). The Court of Appeals then
denied rehearing en banc (83 F.3d 421, 1996 US App LEXIS 9586).
On certiorari, the Supreme Court reversed. In an opinion by Kennedy, J.,
joined by Rehnquist, Ch. J., and Stevens, Thomas, and Ginsburg, JJ., and joined
in pertinent part by Scalia, J., it was held that (1) the RFRA exceeded Congress
' power, under 5 of the Fourteenth Amendment, to enact legislation enforcing the
First Amendment's free exercise clause, because--without the Supreme Court's
rearguing the decision in Employment Div. v Smith--the RFRA contradicted vital
principles necessary to maintain separation of powers and the federal balance,
in that the RFRA appeared to attempt a substantive change in constitutional
protections; and (2) accordingly, it was the Supreme Court's precedent, not the
RFRA, which had to control the case at hand.
Stevens, J., concurring, expressed the view that the RFRA, by preferring
religion over irreligion, violated the First Amendment's clause prohibiting an
establishment of religion.
Scalia, J., joined by Stevens, J., concurring in part, expressed the view
that the new items of historical evidence that were brought forward in the
dissent of O'Connor, J., did not undermine the correctness of the conclusion
which the Supreme Court had reached in Employment Div. v Smith.
O'Connor, J., joined by Breyer, J., as to points 1 and 2 below, dissenting,
expressed the view that (1) the Supreme Court's analysis in the case at hand, as
to whether the RFRA was a proper exercise of Congress' enforcement power under 5
of the Fourteenth Amendment, was premised on the assumption that Employment Div.
v Smith had correctly interpreted the First Amendment's free exercise clause;
(2) because--in light of factors including the historical evidence--Employment
Div. v Smith had been wrongly decided, the Supreme Court should have (a)
directed the parties to brief the question whether Employment Div. v Smith
represented the correct understanding of the free exercise clause, and (b) set
the case at hand for reargument; and (3) if she agreed with the standard in
Employment Div. v Smith, then she would have joined the court's opinion in the
case at hand.
Souter, J., dissenting, expressed the view that the Supreme Court should have
dismissed the writ of certiorari in the case at hand as improvidently granted,
since the court declined to set the case down for reargument that would permit
plenary re-examination of the merits of the free exercise standard of Employment
Div. v Smith.
Breyer, J., dissenting, expressed the view that (1) the court should have
directed the parties to brief the question whether Employment Div. v Smith had
been correctly decided, and (2) it was unnecessary to consider the question
whether, on the assumption that Employment Div. v Smith had been correctly
decided, 5 of the Fourteenth Amendment authorized Congress to enact the RFRA.
LAWYERS' EDITION HEADNOTES:
[***LEdHN1]
CONSTITUTIONAL LAW §7
Religious Freedom Restoration Act -- enforcement of Fourteenth Amendment --
separation of powers --
Headnote:[1A][1B][1C][1D][1E][1F][1G][1H]
The Religious Freedom Restoration Act of 1993 (RFRA) (42 USCS 2000bb et seq.)
exceeds Congress' power, under 5 of the Federal Constitution's Fourteenth
Amendment, to enact legislation enforcing the Constitution's First Amendment
clause providing a right to the free exercise of religion, because--without the
United States Supreme Court's rearguing the decision in Employment Div. v Smith
(1990) 494 US 872, 108 L Ed 2d 876, 110 S Ct 1595, that under the free exercise
clause, neutral laws of general applicability may be applied to religious
practices even when not supported by a compelling governmental interest--the
RFRA contradicts vital principles necessary to maintain separation of powers and
the federal balance, in that (1) the RFRA (a) was enacted in direct response to
Employment Div. v Smith, (b) recites that one of the statutory purposes is to
"restore" a compelling-interest test as set forth in two pre-Smith Supreme Court
cases, and (c) prohibits a government from substantially burdening a person's
exercise of religion, even if the burden results from a rule of general
applicability, unless the government can demonstrate that the burden is in
furtherance of a compelling governmental interest and is the least restrictive
means of furthering that interest; (2) the RFRA's legislative record lacks
examples of modern instances of generally applicable laws passed because of
religious bigotry; and (3) regardless of the state of the legislative record,
the RFRA is so out of proportion to a supposed remedial or preventive object
that the RFRA cannot be understood as responsive to, or designed to prevent,
unconstitutional behavior and, instead, the RFRA appears to attempt a
substantive change in constitutional protections, where (a) the RFRA's
restrictions apply to every agency and official of the federal, state, and local
governments, (b) the RFRA applies to all federal and state law, statutory or
otherwise, whether adopted before or after the RFRA's enactment, (c) the RFRA
has no termination date or termination mechanism, (d) the substantial costs
which the RFRA exacts through its stringent compelling-interest test--both in
practical terms of imposing a heavy litigation burden on the states and in terms
of curtailing their traditional general regulatory power--far exceed any pattern
or practice of unconstitutional conduct under the free exercise clause as
interpreted in Employment Div. v Smith, (e) the RFRA is not designed to identify
and counteract state laws likely to be unconstitutional because of their
treatment of religion, and (f) the least-restrictive-means requirement which the
RFRA imposes in every case was not used in the pre-Smith jurisprudence which the
RFRA purports to codify. (O'Connor, Breyer, and Souter, JJ., dissented from this
holding.)
[***LEdHN2]
ZONING §1
controlling law --
Headnote:[2A][2B]
While the Religious Freedom Restoration Act of 1993 (RFRA) (42 USCS 2000bb et
seq.) was designed to control cases and controversies such as the case at
hand--which involves an archbishop's federal court challenge to a decision by
local zoning authorities to deny a building permit for a church--because the
RFRA's provisions are beyond congressional authority, it is the United States
Supreme Court's precedent, not the RFRA, which must control the case at hand. (O
'Connor, Breyer, and Souter, JJ., dissented from this holding.)
[***LEdHN3]
UNITED STATES §57
powers --
Headnote:[3]
Under the Federal Constitution, the Federal Government is one of enumerated
powers.
[***LEdHN4]
CONSTITUTIONAL LAW §48
COURTS §95
legislative powers -- review --
Headnote:[4]
Under the Federal Constitution, the judicial authority to determine the
constitutionality of laws, in cases and controversies, is based on the premise
that (1) the powers of the legislature are defined and limited, and (2) the
Constitution is written so that those limits may not be mistaken or forgotten.
[***LEdHN5]
CONSTITUTIONAL LAW §7
Fourteenth Amendment -- enforcement --
Headnote:[5]
Section 5 of the Federal Constitution's Fourteenth Amendment--in providing for
congressional enforcement--is a positive grant of legislative power to Congress.
[***LEdHN6]
CONSTITUTIONAL LAW §7
Fourteenth Amendment -- enforcement --
Headnote:[6]
Federal legislation which deters or remedies federal constitutional violations
can fall within the sweep of Congress' enforcement power under 5 of the Federal
Constitution's Fourteenth Amendment even if, in the process, the legislation (1)
prohibits conduct which is not itself unconstitutional, and (2) intrudes into
legislative spheres of autonomy previously reserved to the states.
[***LEdHN7]
CONSTITUTIONAL LAW §7
amendment -- enforcement --
Headnote:[7]
As broad as Congress' enforcement power is under 5 of the Federal Constitution's
Fourteenth Amendment, this power is not unlimited.
[***LEdHN8]
CONSTITUTIONAL LAW §7
Fourteenth Amendment -- enforcement -- due process -- liberty -- religion --
Headnote:[8]
Under 5 of the Federal Constitution's Fourteenth Amendment, Congress can validly
enact legislation enforcing the federal constitutional right to the free
exercise of religion, because (1) the "provisions of this article" that are
enforceable under 5 include the due process clause of the Fourteenth Amendment,
and (2) the United States Supreme Court has held that the fundamental concept of
liberty embodied in the Fourteenth Amendment's due process clause embraces the
liberties guaranteed by the Constitution's First Amendment.
[***LEdHN9]
CONSTITUTIONAL LAW §7
amendment -- enforcement -- separation of powers --
Headnote:[9A][9B][9C][9D][9E][9F]
With respect to Congress' enforcement power under 5 of the Federal Constitution
's Fourteenth Amendment, the distinction between permissible measures that
remedy or prevent unconstitutional actions and impermissible measures that make
a substantive change in the governing law must be observed, because (1) the
design of the Fourteenth 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, as (a) Congress does not enforce a
constitutional right by changing what the right is, (b) if Congress had been
given the power to determine what constitutes a constitutional violation, then
what Congress would be enforcing would no longer be, in any meaningful sense,
the "provisions of" the Fourteenth Amendment, to which provisions 5 refers, and
(c) the Fourteenth Amendment's design has proved significant in maintaining the
traditional separation of powers between Congress and the judiciary; (2) the
Fourteenth Amendment's history and the Supreme Court's case law support drawing
a distinction between remedy and substance; and (3) if Congress could define its
own powers by altering the Fourteenth Amendment's meaning, then (a) the
Constitution would no longer would be superior paramount law, unchangeable by
ordinary means, (b) it would be difficult to conceive of a principle that would
limit congressional power, and (c) shifting legislative majorities could change
the Constitution and effectively circumvent the difficult and detailed amendment
process contained in Article V of the Constitution.
[***LEdHN10]
CONSTITUTIONAL LAW §7
amendment -- enforcement --
Headnote:[10]
For purposes of determining whether federal legislation has been validly enacted
pursuant to Congress' enforcement power under 5 of the Federal Constitution's
Fourteenth Amendment, legislation which alters the meaning of the free exercise
clause of the Constitution's First Amendment cannot be said to be enforcing the
free exercise clause.
[***LEdHN11]
CONSTITUTIONAL LAW §7
Fourteenth Amendment -- enforcement -- remedy or substance --
Headnote:[11A][11B][11C]
In determining whether, for purposes of Congress' enforcement power under 5 of
the Federal Constitution's Fourteenth Amendment, federal legislation is
permissibly remedial or impermissibly substantive, (1) there must be a
congruence and proportionality between the injury to be prevented or remedied
and the means adopted to that end, and (2) in the absence of such a connection,
legislation may become substantive in operation and effect; moreover, the
appropriateness of remedial measures must be considered in light of the evil
presented; thus, strong measures appropriate to address one harm may be an
unwarranted response to another, lesser harm; while preventive measures
prohibiting certain types of laws may be appropriate when there is reason to
believe that many of the laws affected by a congressional enactment have a
significant likelihood of being unconstitutional, remedial legislation under 5
should be adapted to the mischief and wrong which the Fourteenth Amendment was
intended to provide against.
[***LEdHN12]
CONSTITUTIONAL LAW §36
COURTS §95
self-executing provisions -- rights against states -- interpretation --
Headnote:[12]
The first eight amendments to the Federal Constitution set forth self-executing
prohibitions on governmental action, which prohibitions the United States
Supreme Court has had primary authority to interpret; in addition, while the
Constitution's Fourteenth Amendment, as enacted, confers substantive rights
against the states that, 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 federal judiciary.
[***LEdHN13]
COURTS §95
constitutionality of statute -- deference --
Headnote:[13]
In most cases concerning the validity of a federal statute under the Federal
Constitution, judicial deference is based not on the state of the legislative
record which Congress compiles, but on due regard for the decision of the body
constitutionally appointed to decide; as a general matter, it is for Congress to
determine the method by which Congress will reach a decision.
[***LEdHN14]
CONSTITUTIONAL LAW §7
Fourteenth Amendment -- enforcement --
Headnote:[14]
Termination dates, geographic restrictions, or egregious predicates are not
required in order for federal legislation to be valid pursuant to Congress'
enforcement power under 5 of the Federal Constitution's Fourteenth Amendment;
however, where a congressional enactment pervasively prohibits constitutional
state action in an effort to remedy or to prevent unconstitutional state action,
limitations of this kind tend to insure that Congress' means are proportionate
to ends legitimate under 5.
[***LEdHN15]
STATES, TERRITORIES, AND POSSESSIONS §4
authority --
Headnote:[15]
The states have general authority to regulate for the health and welfare of the
states' citizens.
[***LEdHN16]
UNITED STATES §14
Congress -- right and duty --
Headnote:[16]
When Congress acts within its sphere of power and responsibilities, Congress has
not just the right but the duty to make its own informed judgment on the meaning
and force of the Federal Constitution.
[***LEdHN17]
EVIDENCE §99
presumption -- validity --
Headnote:[17]
Congress' enactments enjoy a presumption of validity under the Federal
Constitution.
[***LEdHN18]
COURTS §92.5
constitutional questions -- duty --
Headnote:[18]
When the United States Supreme Court interprets the Federal Constitution, the
Supreme Court acts within the judicial branch's province, which embraces the
duty to say what the law is.
[***LEdHN19]
COURTS §766
precedents --
Headnote:[19]
When the political branches of the Federal Government act against the background
of a judicial interpretation of the Federal Constitution that has already been
issued by the United States Supreme Court, the Supreme Court, in later cases and
controversies, will treat its precedents with the respect due them under settled
principles, including stare decisis, and contrary expectations must be
disappointed.
[***LEdHN20]
CONSTITUTIONAL LAW §7
COURTS §153
Fourteenth Amendment -- enforcement -- review --
Headnote:[20]
With respect to Congress' broad enforcement power under 5 of the Federal
Constitution's Fourteenth Amendment, it is for Congress in the first instance to
determine whether and what legislation is needed to secure the guarantees of the
Fourteenth Amendment; moreover, Congress' conclusions are entitled to much
deference; however, Congress' discretion is not unlimited, and the federal
courts retain the power to determine if Congress has exceeded its authority
under the Constitution.
SYLLABUS: Respondent, the Catholic Archbishop of San Antonio, applied for a
building permit to enlarge a church in Boerne, Texas. When local zoning
authorities denied the permit, relying on an ordinance governing historic
preservation in a district which, they argued, included the church, the
Archbishop brought this suit challenging the permit denial under, inter alia,
the Religious Freedom Restoration Act of 1993 (RFRA). 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.
Held: RFRA exceeds Congress' power. Pp. 2-27.
(a) Congress enacted RFRA in direct response to Employment Div., Dept. of Human
Resources of Ore. v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876, 110 S. Ct. 1595, in
which the Court upheld against a free exercise challenge a state law of general
applicability criminalizing peyote use, as applied to deny unemployment benefits
to Native American Church members who lost their jobs because of such use. In so
ruling, the Court declined to apply the balancing test of Sherbert v. Verner,
374 U.S. 398, 10 L. Ed. 2d 965, 83 S. Ct. 1790, which asks whether the law at
issue substantially burdens a religious practice and, if so, whether the burden
is justified by a compelling government interest. RFRA prohibits "government"
from "substantially burdening" 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 . . .
interest." 42 U.S.C. § 2000bb-1. RFRA's mandate applies to any branch of Federal
or State Government, to all officials, and to other persons acting under color
of law. § 2000bb-2(1). Its universal coverage includes "all Federal and State
law, and the implementation of that law, whether statutory or otherwise, and
whether adopted before or after [RFRA's enactment]." § 2000bb-3(a). Pp. 2-6.
(b) In imposing RFRA's requirements on the States, Congress relied on the
Fourteenth Amendment, which, inter alia, guarantees that no State shall make or
enforce any law depriving any person of "life, liberty, or property, without due
process of law," or denying any person the "equal protection of the laws," § 1,
and empowers Congress "to enforce" those guarantees by "appropriate legislation,
" § 5. Respondent and the United States as amicus contend that RFRA is
permissible enforcement legislation under § 5. Although Congress certainly can
enact legislation enforcing the constitutional right to the free exercise of
religion, see, e.g., Cantwell v. Connecticut, 310 U.S. 296, 303, 84 L. Ed. 1213,
60 S. Ct. 900, its § 5 power "to enforce" is only preventive or "remedial,"
South Carolina v. Katzenbach, 383 U.S. 301, 326, 15 L. Ed. 2d 769, 86 S. Ct.
803. The Amendment's design and § 5's text are inconsistent with any suggestion
that Congress has the power to decree the substance of the Amendment's
restrictions on the States. Legislation which alters the Free Exercise Clause's
meaning 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.
The need to distinguish between remedy and substance is supported by the
Fourteenth Amendment's history and this Court's case law, see, e.g., Civil
Rights Cases, 109 U.S. 3, 13-14, 15, 27 L. Ed. 835, 3 S. Ct. 18; Oregon v.
Mitchell, 400 U.S. 112, 209, 296, 27 L. Ed. 2d 272, 91 S. Ct. 260. The Amendment
's design has proved significant also in maintaining the traditional separation
of powers between Congress and the Judiciary, depriving Congress of any power to
interpret and elaborate on its meaning by conferring self-executing substantive
rights against the States, cf. id., at 325, and thereby leaving the
interpretive power with the Judiciary. Pp. 6-19.
(c) RFRA is not a proper exercise of Congress' § 5 enforcement power because it
contradicts vital principles necessary to maintain separation of powers and the
federal-state balance. An instructive comparison may be drawn between RFRA and
the Voting Rights Act of 1965, provisions of which were upheld in Katzenbach,
supra, and subsequent voting rights cases. In contrast to the record of
widespread and persisting racial discrimination which confronted Congress and
the Judiciary in those cases, RFRA's legislative record lacks examples of any
instances of generally applicable laws passed because of religious bigotry in
the past 40 years. Rather, the emphasis of the RFRA hearings was on laws like
the one at issue that place incidental burdens on religion. It is difficult to
maintain that such laws are based on animus or hostility to the burdened
religious practices or that they indicate some widespread pattern of religious
discrimination in this country. RFRA's most serious shortcoming, however, lies
in the fact that it 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, proscribing state conduct that the Fourteenth
Amendment itself does not prohibit. Its 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. Its restrictions
apply to every government agency and official, § 2000bb-2(1), and to all
statutory or other law, whether adopted before or after its enactment, §
2000bb-3(a). It has no termination date or termination mechanism. Any law is
subject to challenge at any time by any individual who claims a substantial
burden on his or her free exercise of religion. Such a claim will often be
difficult to contest. See Smith, supra, at 887. 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. 494 U.S. at 888. Furthermore, the least restrictive means requirement was
not used in the pre-Smith jurisprudence RFRA purported to codify. All told, RFRA
is a considerable congressional intrusion into the States' traditional
prerogatives and general authority to regulate for the health and welfare of
their citizens, and is not designed to identify and counteract state laws likely
to be unconstitutional because of their treatment of religion. Pp. 19-27.
73 F.3d 1352, reversed.
COUNSEL: Marci A. Hamilton argued the cause for petitioner.
Jeffrey S. Sutton argued the cause for Ohio, et al., as amicus curiae, by
special leave of court.
Douglas Laycock argued the cause for repsondent P.F. Flores.
Walter Dellinger argued the cause for respondent United States.
JUDGES: KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.
J., and STEVENS, THOMAS, and GINSBURG, JJ., joined, and in all but Part III-A-1
of which SCALIA, J., joined. STEVENS, J., filed a concurring opinion. SCALIA,
J., filed an opinion concurring in part, in which STEVENS, J., joined. O'CONNOR,
J., filed a dissenting opinion, in which BREYER, J., joined except as to a
portion of Part I. SOUTER, J., and BREYER, J., filed dissenting opinions.
OPINIONBY: KENNEDY
OPINION: [***633] [*511] [**2160] JUSTICE KENNEDY delivered the opinion of
the Court. *
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
* JUSTICE SCALIA joins all but Part III-A-1 of this opinion.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[***LEdHR1A] [1A] [***LEdHR2A] [2A]A decision by local zoning authorities to
deny a church a building permit was challenged under the Religious Freedom
Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U.S.C. § 2000bb et seq. 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 [*512] 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, [***634]
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. 877 F. Supp. 355 (1995).
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. 73 F.3d 1352 (1996). We granted certiorari,
519 U.S. (1996), 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, 494 U.S. 872, 108
L. Ed. 2d 876, 110 S. Ct. 1595 (1990). There we considered a Free Exercise
Clause claim brought by members of the [*513] Native American Church who were
denied unemployment benefits when they lost their jobs because they had used
peyote. Their practice was to ingest peyote for sacramental purposes, and they
challenged an Oregon statute of general applicability which made use of the drug
criminal. In evaluating the claim, we declined to apply the balancing test set
forth in Sherbert v. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 83 S. Ct. 1790
(1963), under which we [**2161] 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. We stated:
"Government's ability to enforce generally applicable prohibitions of
socially harmful conduct . . . cannot depend on measuring the effects
of a governmental action on a religious objector's spiritual
development. To make an individual's obligation to obey such a law
contingent upon the law's coincidence with his religious beliefs,
except where the State's interest is 'compelling' . . . contradicts
both constitutional tradition and common sense." 494 U.S. at 885
(internal quotation marks and citation omitted).
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." 494 U.S. at 887 (internal quotation marks and citation
omitted).
The only instances where a neutral, generally applicable law had failed to
pass constitutional muster, the Smith Court [*514] noted, were cases in which
other constitutional protections were at stake. Id., at 881-882. [***635] In
Wisconsin v. Yoder, 406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972), for
example, we invalidated Wisconsin's mandatory school-attendance law as applied
to Amish parents who refused on religious grounds to send their children to
school. That case implicated not only the right to the free exercise of religion
but also the right of parents to control their children's education.
The Smith decision acknowledged the Court had employed the Sherbert test in
considering free exercise challenges to state unemployment compensation rules on
three occasions where the balance had tipped in favor of the individual. See
Sherbert, supra; Thomas v. Review Bd. of Indiana Employment Security Div., 450
U.S. 707, 67 L. Ed. 2d 624, 101 S. Ct. 1425 (1981); Hobbie v. Unemployment
Appeals Comm'n of Fla., 480 U.S. 136, 94 L. Ed. 2d 190, 107 S. Ct. 1046 (1987).
Those cases, the Court explained, stand for "the proposition that where the
State has in place a system of individual exemptions, it may not refuse to
extend that system to cases of religious hardship without compelling reason."
494 U.S. at 884 (internal quotation marks omitted). By contrast, where a general
prohibition, such as Oregon's, is at issue, "the sounder approach, and the
approach in accord with the vast majority of our precedents, is to hold the test
inapplicable to [free exercise] challenges." Id., at 885. Smith held that
neutral, generally applicable laws may be applied to religious practices even
when not supported by a compelling governmental interest.
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. Id., at 894. 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. [*515]
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) The 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;
[**2162]
"(3) governments should not substantially burden religious exercise
without compelling justification;
"(4) in Employment Division v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876,
110 S. Ct. 1595 (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 [***636]
interests." 42 U.S.C. § 2000bb(a).
The Act's stated purposes are:
"(1) to restore the compelling interest test as set forth in
Sherbert v. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 83 S.
Ct. 1790 (1963) and Wisconsin v. Yoder, 406 U.S. 205, 32 L.
Ed. 2d 15, 92 S. Ct. 1526 (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."
§ 2000bb(b).
RFRA prohibits "government" from "substantially burdening" 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 [*516] a compelling governmental interest; and (2) is the least
restrictive means of furthering that compelling governmental interest." §
2000bb-1. 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." §
2000bb-2(1). The Act's universal coverage is confirmed in § 2000bb-3(a), under
which RFRA "applies to all Federal and State law, and the implementation of that
law, whether statutory or otherwise, and whether adopted before or after [RFRA's
enactment]." In accordance with RFRA's usage of the term, we shall use "state
law" to include local and municipal ordinances.
III
A
[***LEdHR3] [3] [***LEdHR4] [4]Under our Constitution, the Federal Government
is one of enumerated powers. McCulloch v. Maryland, 17 U.S. 316, 4 Wheat. 316,
405, 4 L. Ed. 579 (1819); see also The Federalist No. 45, p. 292 (C. Rossiter
ed. 1961) (J. Madison). 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, 5 U.S. 137, 1 Cranch 137, 176, 2 L. Ed. 60 (1803).
[***LEdHR1B] [1B]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. See Religious Freedom Restoration
Act of 1993, S. Rep. No. 103-111, pp. 13-14 (1993) (Senate Report); H. R. Rep.
No. 103-88, p. 9 (1993) (House Report). 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 [*517] 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."
[***637] 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."
In defense of the Act respondent contends, with support from the United
States as amicus, that RFRA is permissible enforcement [**2163] legislation.
Congress, it is said, is only protecting by legislation one of the liberties
guaranteed by the Fourteenth Amendment's Due Process Clause, the free exercise
of religion, beyond what is necessary under Smith. It is said the congressional
decision to dispense with proof of deliberate or overt discrimination and
instead concentrate on a law's effects accords with the settled understanding
that § 5 includes the power to enact legislation designed to prevent as well as
remedy constitutional violations. It is further contended that Congress' § 5
power is not limited to remedial or preventive legislation.
[***LEdHR5] [5] [***LEdHR6] [6]All must acknowledge that § 5 is "a positive
grant of legislative power" to Congress, Katzenbach v. Morgan, 384 U.S. 641,
651, 16 L. Ed. 2d 828, 86 S. Ct. 1717 (1966). In Ex parte Virginia, 100 U.S.
339, 345-346, 25 L. Ed. 676 (1880), we explained the scope of Congress' § 5
power in the following broad terms:
"Whatever legislation is appropriate, that is, adapted to carry out
the objects the amendments have in view, whatever tends to enforce
submission to the prohibitions they contain, and to secure to all
persons the enjoyment of perfect equality of civil rights and the
equal protection of the laws against State denial or invasion, if not
[*518] prohibited, is brought within the domain of congressional
power."
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,
427 U.S. 445, 455, 49 L. Ed. 2d 614, 96 S. Ct. 2666 (1976). 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, see U.S. Const., Amdt. 15, § 2, as a measure to combat racial
discrimination in voting, South Carolina v. Katzenbach, 383 U.S. 301, 308, 15 L.
Ed. 2d 769, 86 S. Ct. 803 (1966), despite the facial constitutionality of the
tests under Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 3 L.
Ed. 2d 1072, 79 S. Ct. 985 (1959). 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. South Carolina v. Katzenbach, supra (upholding several provisions of
the Voting Rights Act of 1965); Katzenbach v. Morgan, supra (upholding ban on
literacy tests that prohibited certain people schooled in Puerto Rico from
voting); Oregon v. Mitchell, 400 U.S. 112, 27 L. Ed. 2d 272, 91 S. Ct. 260
(1970) (upholding 5-year nationwide ban on literacy tests and similar voting
requirements for registering to vote); City of Rome v. United States, 446 U.S.
156, 161, 64 L. Ed. 2d 119, 100 S. Ct. 1548 [***638] (1980) (upholding 7-year
extension of the Voting Rights Act's requirement that certain jurisdictions
preclear any change to a "'standard, practice, or procedure with respect to
voting'"); see also James Everard's Breweries v. Day, 265 U.S. 545, 68 L. Ed.
1174, 44 S. Ct. 628 (1924) (upholding ban on medical prescription of
intoxicating malt liquors as appropriate to enforce Eighteenth Amendment ban on
manufacture, sale, or transportation of intoxicating liquors for beverage
purposes).
[***LEdHR7] [7] [***LEdHR8] [8]It is also true, however, that "as broad as
the congressional enforcement power is, it is not unlimited." Oregon v. [*519]
Mitchell, supra, at 128 (opinion of Black, J.). In assessing the breadth of § 5
's enforcement power, we begin with its text. Congress has been given the power
"to enforce" the "provisions of this article." We agree with respondent, of
course, that Congress can enact legislation under § 5 enforcing the
constitutional right to the free exercise of religion. The "provisions of this
article," to which § 5 refers, include the Due Process Clause of the Fourteenth
Amendment. Congress' power to enforce the Free Exercise Clause follows from our
holding in Cantwell v. Connecticut, 310 U.S. 296, 303, 84 L. Ed. 1213, 60 S. Ct.
900 (1940), that the "fundamental concept of liberty embodied in [the Fourteenth
Amendment's Due Process Clause] embraces the liberties guaranteed by the First
Amendment." See also United States v. [**2164] Price, 383 U.S. 787, 789, 16
L. Ed. 2d 267, 86 S. Ct. 1152 (1966) (there is "no doubt of the power of
Congress to enforce by appropriate criminal sanction every right guaranteed by
the Due Process Clause of the Fourteenth Amendment") (internal quotation marks
and citation omitted).
[***LEdHR9A] [9A] [***LEdHR10] [10]Congress' power under § 5, however,
extends only to "enforcing" the provisions of the Fourteenth Amendment. The
Court has described this power as "remedial," South Carolina v. Katzenbach,
supra, at 326. 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]."
[***LEdHR9B] [9B] [***LEdHR11A] [11A]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 [*520] 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. History
and our case law support drawing the distinction, one apparent from the text of
the Amendment.
1
[***LEdHR9C] [9C] [***639] The Fourteenth Amendment's history confirms the
remedial, rather than substantive, nature of the Enforcement Clause. The Joint
Committee on Reconstruction of the 39th Congress began drafting what would
become the Fourteenth Amendment in January 1866. The objections to the Committee
's first draft of the Amendment, and the rejection of the draft, have a direct
bearing on the central issue of defining Congress' enforcement power. In
February, 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." Cong. Globe, 39th
Cong., 1st Sess., 1034 (1866).
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. E.g., id., at 1063-1065 (statement of Rep.
Hale); id., at 1082 [*521] (statement of Sen. Stewart); id., at 1095
(statement of Rep. Hotchkiss); id., at App. 133-135 (statement of Rep. Rogers).
Democrats and conservative Republicans argued that the proposed Amendment would
give Congress a power to intrude into traditional areas of state responsibility,
a power inconsistent with the federal design central to the Constitution.
Typifying these views, Republican Representative Robert Hale of New York labeled
the Amendment "an utter departure from every principle ever dreamed of by the
men who framed our Constitution," id., at 1063, and warned that under it "all
State legislation, in its codes of civil and criminal jurisprudence and
procedures . . . may be overridden, may be repealed or abolished, and the law of
Congress established instead." Ibid. Senator William Stewart of Nevada likewise
stated the Amendment would permit "Congress to legislate fully upon all subjects
affecting life, liberty, and property," such that "there would not be much left
for the State Legislatures," and would thereby "work an entire change in our
form of government." Id., at 1082; accord, id., at 1087 (statement of Rep.
[**2165] Davis); id., at App. 133 (statement of Rep. Rogers). Some radicals,
like their brethren "unwilling that Congress shall have any such power . . . to
establish uniform laws throughout the United States upon . . . the protection of
life, liberty, and property," id., at 1095 (statement of Rep. Hotchkiss), also
objected that giving Congress primary responsibility for enforcing legal
equality would place power in the hands of changing congressional majorities.
Ibid. See generally Bickel, The Original Understanding and the Segregation
Decision, 69 Harv. L. Rev. 1, 57 (1955); Graham, Our "Declaratory" Fourteenth
Amendment, 7 Stan. L. Rev. 3, 21 (1954).
As a result of these objections having been expressed from so many different
quarters, the House voted to [***640] table the proposal until April. See e.g.
, B. Kendrick, Journal of the Joint Committee of Fifteen on Reconstruction 215,
217 (1914); Cong. Globe, 42d Cong., 1st Sess., App. 115 (1871) (statement
[*522] of Rep. Farnsworth). The congressional action was seen as marking the
defeat of the proposal. See The Nation, Mar. 8, 1866, p. 291 ("The postponement
of the amendment . . . is conclusive against the passage of [it]"); New York
Times, Mar. 1, 1866, p. 4 ("It is doubtful if this ever comes before the House
again . . ."); see also Cong. Globe, 42d Cong., 1st Sess., App., at 115
(statement of Rep. Farnsworth) (The Amendment was "given its quietus by a
postponement for two months, where it slept the sleep that knows no waking").
The measure was defeated "chiefly because many members of the legal profession
saw in [it] . . . a dangerous centralization of power," The Nation, supra, at
291, and "many leading Republicans of the House [of Representatives] would not
consent to so radical a change in the Constitution," Cong. Globe, 42d Cong., 1st
Sess., App., at 151 (statement of Rep. Garfield). The Amendment in its early
form was not again considered. Instead, the Joint Committee began drafting a new
article of Amendment, which it reported to Congress on April 30, 1866.
Section 1 of the new draft Amendment imposed self-executing limits on the
States. Section 5 prescribed that "the Congress shall have power to enforce, by
appropriate legislation, the provisions of this article." See Cong. Globe, 39th
Cong., 1st Sess., at 2286. Under the revised Amendment, Congress' power was no
longer plenary but remedial. Congress was granted the power to make the
substantive constitutional prohibitions against the States effective.
Representative Bingham said the new draft would give Congress "the power . . .
to protect by national law the privileges and immunities of all the citizens of
the Republic . . . whenever the same shall be abridged or denied by the
unconstitutional acts of any State." Id., at 2542. Representative Stevens
described the new draft Amendment as "allowing Congress to correct the unjust
legislation of the States." Id., at 2459. See also id., at 2768 (statement of
Sen. Howard) ( § 5 "enables Congress, in case the States shall enact [*523]
laws in conflict with the principles of the amendment, to correct that
legislation by a formal congressional enactment"). See generally H. Brannon, The
Rights and Privileges Guaranteed by the Fourteenth Amendment to the Constitution
of the United States 387 (1901) (Congress' "powers are only prohibitive,
corrective, vetoing, aimed only at undue process of law"); id., at 420, 452-455
(same); T. Cooley, Constitutional Limitations 294, n.1 (2d ed. 1871) ("This
amendment of the Constitution does not concentrate power in the general
government for any purpose of police government within the States; its object is
to preclude legislation by any State which shall 'abridge the privileges or
immunities of citizens of the United States'"). The revised Amendment proposal
did not raise the concerns expressed earlier regarding broad congressional power
to prescribe uniform national laws with respect to life, liberty, and property.
See, e.g., Cong. Globe, 42d Cong., 1st Sess., at App. 151 (statement of Rep.
Garfield) ("The [Fourteenth Amendment] limited but did not oust the jurisdiction
of the [***641] States"). After revisions not relevant here, the new measure
passed both Houses and was ratified in July 1868 as the Fourteenth Amendment.
The significance of the defeat of the Bingham proposal was apparent even
then. During the debates over the Ku Klux Klan Act only a few years after the
Amendment's ratification, [**2166] Representative James Garfield argued there
were limits on Congress' enforcement power, saying "unless we ignore both the
history and the language of these clauses we cannot, by any reasonable
interpretation, give to [§ 5] . . . the force and effect of the rejected
[Bingham] clause." Cong. Globe, 42d Cong., 1st Sess., at App. 151; see also id.,
at App. 115-116 (statement of Rep. Farnsworth). Scholars of successive
generations have agreed with this assessment. See H. Flack, The Adoption of the
Fourteenth Amendment 64 (1908); Bickel, The Voting Rights Cases, 1966 Sup. Ct.
Rev. 79, 97.
[***LEdHR9D] [9D] [***LEdHR12] [12]The design of the Fourteenth Amendment has
proved significant also in maintaining the traditional separation of powers
[*524] 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." Flack, supra, at 64. 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. See Cong. Globe, 39th Cong., 1st Sess., at 1064 (statement
of Rep. Hale) (noting that Bill of Rights, unlike the Bingham proposal, "provide
safeguards to be enforced by the courts, and not to be exercised by the
Legislature"); id., at App. 133 (statement of Rep. Rogers) (prior to Bingham
proposal it "was left entirely for the courts . . . to enforce the privileges
and immunities of the citizens"). As enacted, the Fourteenth Amendment confers
substantive rights against the States which, like the provisions of the Bill of
Rights, are self-executing. Cf. South Carolina v. Katzenbach, 383 U.S. at 325
(discussing Fifteenth Amendment). The power to interpret the Constitution in a
case or controversy remains in the Judiciary.
2
[***LEdHR9E] [9E]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, 109 U.S. 3, 27 L.
Ed. 835, 3 S. Ct. 18 (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 [*525] 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 [***642] counteracting such laws
as the States may adopt or enforce, and which, by the amendment, they are
prohibited from making or enforcing . . . ." Id., at 13-14. The power to
"legislate generally upon" life, liberty, and property, as opposed to the "power
to provide modes of redress" against offensive state action, was "repugnant" to
the Constitution. Id., at 15. See also United States v. Reese, 92 U.S. 214,
218, 23 L. Ed. 563 (1876); United States v. Harris, 106 U.S. 629, 639, 27 L.
Ed. 290, 1 S. Ct. 601 (1883); James v. Bowman, 190 U.S. 127, 139, 47 L. Ed. 979,
23 S. Ct. 678 (1903). Although the specific holdings of these early cases might
have been superseded or modified, see, e.g., Heart of Atlanta Motel, Inc. v.
United States, 379 U.S. 241, 13 L. Ed. 2d 258, 85 S. Ct. 348 (1964); United
States v. Guest, 383 U.S. 745, 16 L. Ed. 2d 239, 86 S. Ct. 1170 (1966), their
treatment of Congress' § 5 power as corrective or preventive, not definitional,
has not been questioned.
Recent cases have continued to revolve around the question of whether § 5
legislation can be considered remedial. In South Carolina v. Katzenbach, supra,
we emphasized that "the constitutional propriety of [legislation adopted under
the Enforcement Clause] must be judged with reference to the historical
experience . . . it reflects." 383 U.S. [**2167] at 308. There 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,"
id., at 315, and necessary to "banish the blight of racial discrimination in
voting, which has infected the electoral process in parts of our country for
nearly a century," id., at 308. We noted evidence in the record reflecting the
subsisting and pervasive discriminatory--and therefore unconstitutional--use of
literacy tests. Id., at 333-334. The Act's new remedies, which used the
administrative resources of the Federal Government, included the suspension of
both literacy tests and, [*526] pending federal review, all new voting
regulations in covered jurisdictions, as well as the assignment of federal
examiners to list qualified applicants enabling those listed to vote. The new,
unprecedented remedies were deemed necessary given the ineffectiveness of the
existing voting rights laws, see id., at 313-315, and the slow costly character
of case-by-case litigation, id., at 328.
After South Carolina v. Katzenbach, the Court continued to acknowledge the
necessity of using strong remedial and preventive measures to respond to the
widespread and persisting deprivation of constitutional rights resulting from
this country's history of racial discrimination. See Oregon v. Mitchell, 400
U.S. at 132 ("In enacting the literacy test ban . . . Congress had before it a
long history of the discriminatory use of literacy tests to disfranchise voters
on account of their race") (opinion of Black, J.); id., at 147 (Literacy tests
"have been used at times as a discriminatory weapon against some minorities, not
only Negroes but Americans of Mexican ancestry, and American Indians") (opinion
of Douglas, J.); id., at 216 ("Congress could have [***643] determined that
racial prejudice is prevalent throughout the Nation, and that literacy tests
unduly lend themselves to discriminatory application, either conscious or
unconscious") (opinion of Harlan, J.); id., at 235 ("There is no question but
that Congress could legitimately have concluded that the use of literacy tests
anywhere within the United States has the inevitable effect of denying the vote
to members of racial minorities whose inability to pass such tests is the direct
consequence of previous governmental discrimination in education") (opinion of
Brennan, J.); id., at 284 ("Nationwide [suspension of literacy tests] may be
reasonably thought appropriate when Congress acts against an evil such as racial
discrimination which in varying degrees manifests itself in every part of the
country") (opinion of Stewart, J.); City of Rome, 446 U.S. at 182 ("Congress'
considered determination that at least another 7 years of statutory remedies
were necessary to counter the [*527] perpetuation of 95 years of pervasive
voting discrimination is both unsurprising and unassailable"); Morgan, 384 U.S.
at 656 (Congress had a factual basis to conclude that New York's literacy
requirement "constituted an invidious discrimination in violation of the Equal
Protection Clause").
3
Any suggestion that Congress has a substantive, non-remedial power under the
Fourteenth Amendment is not supported by our case law. In Oregon v. Mitchell,
supra, at 112, a majority of the Court concluded Congress had exceeded its
enforcement powers by enacting legislation lowering the minimum age of voters
from 21 to 18 in state and local elections. The five Members of the Court who
reached this conclusion explained that the legislation intruded into an area
reserved by the Constitution to the States. See 400 U.S. at 125 (concluding that
the legislation was unconstitutional because the Constitution "reserves to the
States the power to set voter qualifications in state and local elections")
(opinion of Black, J.); id., at 154 (explaining that the "Fourteenth Amendment
was never intended to restrict the authority of the States to allocate their
political power as they see fit") (opinion of Harlan, J.); id., at 294
(concluding that States, not Congress, have the power "to establish a
qualification for voting based on age") (opinion of Stewart, J., joined by
Burger, C. J., and Blackmun, J.). Four of these [**2168] five were explicit in
rejecting the position that § 5 endowed Congress with the power to establish the
meaning of constitutional provisions. See id., at 209 (opinion of Harlan, J.);
id., at 296 (opinion of Stewart, J.). Justice Black's rejection of this position
might be inferred from his disagreement with Congress' interpretation of the
Equal Protection Clause. See id., at 125.
There is language in our opinion in Katzenbach v. Morgan, 384 U.S. 641, 16 L.
Ed. 2d 828, 86 S. Ct. 1717 (1966), which could be interpreted as acknowledging a
power in Congress to enact legislation that expands [*528] the rights
contained in § 1 of the Fourteenth [***644] Amendment. This is not a necessary
interpretation, however, or even the best one. In Morgan, the Court considered
the constitutionality of § 4(e) of the Voting Rights Act of 1965, which provided
that no person who had successfully completed the sixth primary grade in a
public school in, or a private school accredited by, the Commonwealth of Puerto
Rico in which the language of instruction was other than English could be denied
the right to vote because of an inability to read or write English. New York's
Constitution, on the other hand, required voters to be able to read and write
English. The Court provided two related rationales for its conclusion that §
4(e) could "be viewed as a measure to secure for the Puerto Rican community
residing in New York nondiscriminatory treatment by government." Id., at 652.
Under the first rationale, Congress could prohibit New York from denying the
right to vote to large segments of its Puerto Rican community, in order to give
Puerto Ricans "enhanced political power" that would be "helpful in gaining
nondiscriminatory treatment in public services for the entire Puerto Rican
community." Ibid. Section 4(e) thus could be justified as a remedial measure to
deal with "discrimination in governmental services." Id., at 653. The second
rationale, an alternative holding, did not address discrimination in the
provision of public services but "discrimination in establishing voter
qualifications." Id., at 654. The Court perceived a factual basis on which
Congress could have concluded that New York's literacy requirement "constituted
an invidious discrimination in violation of the Equal Protection Clause." Id.,
at 656. Both rationales for upholding § 4(e) rested on unconstitutional
discrimination by New York and Congress' reasonable attempt to combat it. As
Justice Stewart explained in Oregon v. Mitchell, supra, at 296, interpreting
Morgan to give Congress the power to interpret the Constitution "would require
an enormous extension of that decision's rationale." [*529]
[***LEdHR9F] [9F]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, 1 Cranch at 177.
Under this approach, it is difficult to conceive of a principle that would limit
congressional power. See Van Alstyne, The Failure of the Religious Freedom
Restoration Act under Section 5 of the Fourteenth Amendment, 46 Duke L. J. 291,
292-303 (1996). 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 [***645] as defined by Smith. It prevents and
remedies laws which are enacted with the unconstitutional object of targeting
religious beliefs and practices. See Church of the Lukumi Babalu Aye, Inc. v.
Hialeah, 508 U.S. 520, 533, 124 L. Ed. 2d 472, 113 S. Ct. 2217 (1993) ("[A] law
targeting religious beliefs as such is never permissible"). To avoid the
difficulty of proving such violations, it is said, Congress can simply
invalidate any law which imposes a substantial [**2169] burden on a religious
practice unless it is justified by a compelling interest and is the least
restrictive means of accomplishing that interest. If Congress can prohibit laws
with discriminatory effects in order to prevent racial discrimination in
violation of the Equal Protection Clause, see Fullilove v. Klutznick, 448 U.S.
448, 477, 65 L. Ed. 2d 902, 100 S. Ct. 2758 (1980) (plurality opinion); City of
Rome, 446 U.S. at 177, then it can do the same, respondent argues, to promote
religious liberty. [*530]
[***LEdHR11B] [11B]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. See South Carolina v. Katzenbach, 383 U.S. at 308.
Strong measures appropriate to address one harm may be an unwarranted response
to another, lesser one. Id., at 334.
[***LEdHR1C] [1C] [***LEdHR13] [13]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. See, e.g.,
Religious Freedom Restoration Act of 1991, Hearings on H. R. 2797 before the
Subcommittee on Civil and Constitutional Rights of the House Committee on the
Judiciary, 102d Cong., 2d Sess., 331-334 (1993) (statement of Douglas Laycock)
(House Hearings); The Religious Freedom Restoration Act, Hearing on S. 2969
before the Senate Committee on the Judiciary, 102d Cong., 2d Sess., 30-31 (1993)
(statement of Dallin H. Oaks) (Senate Hearing); Senate Hearing 68-76 (statement
of Douglas Laycock); Religious Freedom Restoration Act of 1990, Hearing on H. R.
5377 before the Subcommittee on Civil and Constitutional Rights of the House
Committee on the Judiciary, 101st Cong., 2d Sess., 49 (1991) (statement of John
H. Buchanan, Jr.) (1990 House Hearing). 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." House Hearings 334 (statement of Douglas
Laycock). See also House Report 2 ("Laws directly targeting religious practices
have become increasingly rare"). Rather, the emphasis of the hearings was on
laws of general applicability which place incidental burdens on religion. Much
of the discussion centered [*531] upon anecdotal evidence of autopsies
performed on Jewish individuals and Hmong immigrants in violation of their
religious beliefs, see, e.g., House Hearings 81 (statement of Nadine Strossen);
id., at 107-110 (statement of William Yang); id., at 118 (statement [***646] of
Rep. Stephen J. Solarz); id., at 336 (statement of Douglas Laycock); Senate
Hearing 5-6, 14-26 (statement of William Yang); id., at 27-28 (statement of
Hmong-Lao Unity Assn., Inc.); id., at 50 (statement of Baptist Joint Committee);
see also Senate Report 8; House Report 5-6, and n.14, and on zoning regulations
and historic preservation laws (like the one at issue here), which as an
incident of their normal operation, have adverse effects on churches and
synagogues. See, e.g. House Hearings 17, 57 (statement of Robert P. Dugan, Jr.);
id., at 81 (statement of Nadine Strossen); id., at 122-123 (statement of Rep.
Stephen J. Solarz); id., at 157 (statement of Edward M. Gaffney, Jr.); id., at
327 (statement of Douglas Laycock); Senate Hearing 143-144 (statement of Forest
D. Montgomery); 1990 House Hearing 39 (statement of Robert P. Dugan, Jr.); see
also Senate Report 8; House Report 5-6, and n.14. It is difficult to maintain
that they are examples of legislation enacted or enforced due to animus or
hostility to the burdened religious practices or that they indicate some
widespread pattern of religious discrimination in this country. Congress'
concern was with the incidental burdens imposed, not the object or purpose of
the legislation. See House Report 2; Senate Report 4-5; House Hearings 64
(statement of Nadine Strossen); id., at 117-118 (statement of Rep. Stephen J.
Solarz); 1990 House Hearing at 14 (statement of Rep. Stephen J. Solarz). This
lack of support in the legislative record, however, is not RFRA's most serious
shortcoming. [**2170] Judicial deference, in most cases, is based not on the
state of the legislative record Congress compiles but "on due regard for the
decision of the body constitutionally appointed to decide." Oregon v. Mitchell,
400 U.S. at 207 (opinion of Harlan, J.). As a general [*532] matter, it is for
Congress to determine the method by which it will reach a decision.
[***LEdHR1D] [1D] [***LEdHR11C] [11C]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. See City of
Rome, 446 U.S. at 177 (since "jurisdictions with a demonstrable history of
intentional racial discrimination . . . create the risk of purposeful
discrimination" Congress could "prohibit changes that have a discriminatory
impact" in those jurisdictions). Remedial legislation under § 5 "should be
adapted to the mischief and wrong which the [Fourteenth] Amendment was intended
to provide against." Civil Rights Cases, 109 U.S. at 13.
[***LEdHR1E] [1E]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. [***647] 42 U.S.C. § 2000bb-2(1). RFRA applies to all federal
and state law, statutory or otherwise, whether adopted before or after its
enactment. § 2000bb-3(a). 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.
[***LEdHR14] [14]The reach and scope of RFRA distinguish it from other
measures passed under Congress' enforcement power, even in the area of voting
rights. In South Carolina v. Katzenbach, the challenged provisions were confined
to those regions [*533] of the country where voting discrimination had been
most flagrant, see 383 U.S. at 315, and affected a discrete class of state laws,
i.e., state voting laws. Furthermore, to ensure that the reach of the Voting
Rights Act was limited to those cases in which constitutional violations were
most likely (in order to reduce the possibility of overbreadth), the coverage
under the Act would terminate "at the behest of States and political
subdivisions in which the danger of substantial voting discrimination has not
materialized during the preceding five years." Id., at 331. The provisions
restricting and banning literacy tests, upheld in Katzenbach v. Morgan, 384 U.S.
641, 16 L. Ed. 2d 828, 86 S. Ct. 1717 (1966), and Oregon v. Mitchell, 400 U.S.
112, 27 L. Ed. 2d 272, 91 S. Ct. 260 (1970), attacked a particular type of
voting qualification, one with a long history as a "notorious means to deny and
abridge voting rights on racial grounds." South Carolina v. Katzenbach, 383 U.S.
at 355 (Black, J., concurring and dissenting). In City of Rome, 446 U.S. 156, 64
L. Ed. 2d 119, 100 S. Ct. 1548, the Court rejected a challenge to the
constitutionality of a Voting Rights Act provision which required certain
jurisdictions to submit changes in electoral practices to the Department of
Justice for preimplementation review. The requirement was placed only on
jurisdictions with a history of intentional racial discrimination in voting. Id.
, at 177. Like the provisions at issue in South Carolina v. Katzenbach, this
provision permitted a covered jurisdiction to avoid preclearance requirements
under certain conditions and, moreover, lapsed in seven years. This is not to
say, of course, that § 5 legislation requires termination dates, geographic
restrictions or egregious predicates. Where, however, a congressional enactment
pervasively prohibits constitutional state action in an effort to remedy or to
prevent unconstitutional state action, limitations of this kind tend to ensure
Congress' [**2171] means are proportionate to ends legitimate under § 5.
[***LEdHR1F] [1F] [***LEdHR15] [15]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 [*534] 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. See Smith, 494 U.S. at
887 ("What principle of law or logic can be brought to bear to contradict a
believer's assertion that a [***648] particular act is 'central' to his
personal faith?"); id., at 907 ("The distinction between questions of centrality
and questions of sincerity and burden is admittedly fine . . .") (O'CONNOR, J.,
concurring in judgment). 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. If "'compelling
interest' really means what it says . . . many laws will not meet the test. . .
. [The test] would open the prospect of constitutionally required religious
exemptions from civic obligations of almost every conceivable kind." Id., at
888. Laws valid under Smith would fall under RFRA without regard to whether they
had the object of stifling or punishing free exercise. We make these
observations not to reargue the position of the majority in Smith but to
illustrate the substantive alteration of its holding attempted by RFRA. Even
assuming RFRA would be interpreted in effect to mandate some lesser test, say
one equivalent to intermediate scrutiny, the statute nevertheless would require
searching judicial scrutiny of state law with the attendant likelihood of
invalidation. This is a considerable congressional intrusion into the States'
traditional prerogatives and general authority to regulate for the health and
welfare of their citizens.
[***LEdHR1G] [1G]The substantial costs RFRA exacts, both in practical terms of
imposing a heavy litigation burden on the States and in terms of curtailing
their traditional general regulatory power, far exceed any pattern or practice
of unconstitutional conduct under the Free Exercise Clause as interpreted in
Smith. Simply put, RFRA is not designed to identify and counteract state laws
likely to be unconstitutional because of [*535] 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. If a state law disproportionately burdened
a particular class of religious observers, this circumstance might be evidence
of an impermissible legislative motive. Cf. Washington v. Davis, 426 U.S. 229,
241, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976). RFRA's substantial burden test,
however, is not even a discriminatory effects or disparate impact test. 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.
[***LEdHR16] [16] [***LEdHR17] [17]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. In 1789, when a Member of the
[***649] House of Representatives objected to a debate on the constitutionality
of legislation based on the theory that "it would be officious" to consider the
constitutionality of a measure that did not affect the House, James Madison
explained that "it is incontrovertibly of as much importance to this branch of
the Government as to any other, that the constitution should be preserved
entire. It is our duty." 1 Annals of Congress 500 (1789). Were it otherwise, we
[**2172] would not afford Congress the presumption of validity its enactments
now enjoy.
[***LEdHR2B] [2B] [***LEdHR18] [18] [***LEdHR19] [19]Our national experience
teaches that the Constitution is preserved best when each part of the government
respects [*536] 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, 1 Cranch at 177.
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.
* * *
[***LEdHR1H] [1H] [***LEdHR20] [20]It is for Congress in the first instance
to "determine whether and what legislation is needed to secure the guarantees of
the Fourteenth Amendment," and its conclusions are entitled to much deference.
Katzenbach v. Morgan, 384 U.S. at 651. 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.
CONCURBY: STEVENS; SCALIA (In Part)
CONCUR:
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. [*537]
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 [***650] 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. Wallace
v. Jaffree, 472 U.S. 38, 52-55, 86 L. Ed. 2d 29, 105 S. Ct. 2479 (1985).
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, 494 U.S. 872, 108 L. Ed. 2d 876, 110 S. Ct. 1595 (1990). See post, p.
(dissenting opinion). We held in Smith that the Constitution's Free Exercise
Clause "does not relieve an individual of the obligation to comply with a 'valid
and neutral law of general applicability on the ground that the law proscribes
(or prescribes) conduct that his religion prescribes (or proscribes).'" 494 U.S.
at 879 (quoting United States v. Lee, 455 U.S. 252, 263, n.3, 71 L. Ed. 2d 127,
102 S. Ct. 1051 (1982) (STEVENS, J., concurring in judgment)). The material that
the dissent claims is at odds with Smith either has little to say about the
issue or is in fact more consistent with Smith than with the dissent's
interpretation of the Free Exercise Clause. The dissent's extravagant claim that
the historical record shows Smith to have been wrong should be compared with the
assessment of the most prominent scholarly critic of Smith, who, after an
extensive review of the historical record, was willing to venture [**2173] no
more than that "constitutionally [*538] compelled exemptions [from generally
applicable laws regulating conduct] were within the contemplation of the framers
and ratifiers as a possible interpretation of the free exercise clause."
McConnell, The Origins and Historical Understanding of Free Exercise of
Religion, 103 Harv. L. Rev. 1409, 1415 (1990) (emphasis added); see also
Hamburger, A Constitutional Right of Religious Exemption: An Historical
Perspective, 60 Geo. Wash. Law Rev. 915 (1992) (arguing that historical evidence
supports Smith's interpretation of free exercise).
The dissent first claims that Smith's interpretation of the Free Exercise
Clause departs from the understanding reflected in various statutory and
constitutional protections of religion enacted by Colonies, States, and
Territories in the period leading up to the ratification of the Bill of Rights.
Post, at 8-14. But the protections afforded by those enactments are in fact more
consistent with Smith's interpretation of free exercise than with the dissent's
understanding of it. The Free Exercise Clause, the dissent claims, "is best
understood as 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"; thus, even
neutral laws of general application may be invalid if they burden religiously
motivated conduct. Post, at 3. However, the early "free exercise" enactments
cited by the dissent protect only against action that is taken "for" or "in
respect of" religion, post, at 8-11 (Maryland [***651] Act [*539] Concerning
Religion of 1649, Rhode Island Charter of 1663, and New Hampshire Constitution);
or action taken "on account of" religion, post, at 11-12 (Maryland Declaration
of Rights of 1776 and Northwest Ordinance of 1787); or "discriminatory" action,
post, at 10 (New York Constitution); or, finally (and unhelpfully for purposes
of interpreting "free exercise" in the Federal Constitution), action that
interferes with the "free exercise" of religion, post, at 8, 11 (Maryland Act
Concerning Religion of 1649 and Georgia Constitution). It is eminently arguable
that application of neutral, generally applicable laws of the sort the dissent
refers to--such as zoning laws, post, at 4--would not constitute action taken
"for," "in respect of," or "on account of" one's religion, or "discriminatory"
action.
Assuming, however, that the affirmative protection of religion accorded by
the early "free exercise" enactments sweeps as broadly as the dissent's theory
would require, those enactments do not support the dissent's view, since they
contain "provisos" that significantly qualify the affirmative protection they
grant. According to the dissent, the "provisos" support its view because they
would have been "superfluous" if "the Court was correct in Smith that generally
applicable laws are enforceable regardless of religious conscience." Post, at
12. I disagree. In fact, the most plausible reading of the "free exercise"
enactments (if their affirmative provisions are read broadly, as the dissent's
view requires) is a virtual restatement of Smith: Religious exercise shall be
permitted so long as it does not violate general laws governing conduct. The
"provisos" in the enactments negate a license to act in a manner "unfaithful to
the Lord Proprietary" (Maryland Act Concerning Religion of 1649), or "behave" in
other than a "peaceable and quiet" manner (Rhode Island Charter of 1663), or
"disturb the public peace" (New Hampshire Constitution), or interfere with the
"peace [and] safety of the State" (New York, Maryland, and Georgia
Constitutions), or "demean" oneself in other than a "peaceable and orderly
manner" (Northwest Ordinance of 1787). See post, at 8-12. At the time these
provisos were enacted, keeping "peace" and "order" seems to have meant,
precisely, obeying the laws. "Every breach of law is against the peace." Queen
v. Lane, 6 Mod. 128, 87 Eng. Rep. 884, 885 (Q. B. 1704). Even as late as 1828,
when Noah Webster published his American Dictionary of the English Language, he
gave as one of the meanings of "peace": "8. Public [*540] tranquility; that
quiet, order and security which is guaranteed by the laws; as, to keep the
peace; to break the peace." 2 An American Dictionary of the English Language 31
[**2174] (1828). n1 This limitation upon the scope of religious exercise would
have been in accord with the background political philosophy of the age
(associated most prominently with John Locke), which regarded freedom as the
right "to do only what was not lawfully prohibited," West, The Case Against a
Right to Religion-Based Exemptions, 4 Notre [***652] Dame J. of Law, Ethics &
Public Policy 591, 624 (1990). "Thus, the disturb-the-peace caveats apparently
permitted government to deny religious freedom, not merely in the event of
violence or force, but, more generally, upon the occurrence of illegal actions."
Hamburger, supra, at 918-919. n2 And while, under this interpretation, these
early "free exercise" enactments support the Court's judgment in Smith, I see no
sensible interpretation that could cause them to support what I understand to be
the position of JUSTICE O'CONNOR, or any of Smith's other critics. No one in
that camp, to my knowledge, contends that their favored "compelling state
interest" test conforms to any possible interpretation of "breach of peace and
order"--i.e., that only violence or force, or any other category of action (more
limited than "violation of law") which can possibly be conveyed by the phrase
"peace and order," justifies state prohibition of religiously motivated conduct.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 The word "licentious," used in several of the early enactments, likewise
meant "exceeding the limits of law." 2 An American Dictionary of the English
Language 6 (1828).
n2 The same explanation applies, of course, to George Mason's initial draft
of Virginia's religious liberty clause, see post, at 12-13. When it said
"unless, under colour of religion, any man disturb the peace . . . of society,"
it probably meant "unless under color of religion any man break the law." Thus,
it is not the case that "both Mason's and [James] Madison's formulations
envisioned that, where there was a conflict [between religious exercise and
generally applicable laws], a person's interest in freely practicing his
religion was to be balanced against state interests," post, at 14--at least
insofar as regulation of conduct was concerned.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*541]
Apart from the early "free exercise" enactments of Colonies, States, and
Territories, the dissent calls attention to those bodies', and the Continental
Congress's, legislative accommodation of religious practices prior to
ratification of the Bill of Rights. Post, at 14-17. This accommodation--which
took place both before and after enactment of the state constitutional
protections of religious liberty--suggests (according to the dissent) that "the
drafters and ratifiers of the First Amendment . . . assumed courts would apply
the Free Exercise Clause similarly." Post, at 17. But that legislatures
sometimes (though not always) n3 found it "appropriate," ibid., to accommodate
religious practices does not establish that accommodation was understood to be
constitutionally mandated by the Free Exercise Clause. As we explained in Smith,
"To say that a nondiscriminatory religious-practice exemption is permitted, or
even that it is desirable, is not to say that it is constitutionally required."
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." Ibid.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n3 The dissent mentions, for example, that only seven of the thirteen
Colonies had exempted Quakers from military service by the mid-1700's; and that
"virtually all" of the States had enacted oath exemptions by 1789. Post, at
15-16 (emphasis added).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The dissent's final source of claimed historical support consists of
statements of certain of the Framers in the context of debates about proposed
legislative enactments or debates over general principles (not in connection
with the drafting of State or Federal Constitutions). Those statements are
subject to the same objection as was the evidence about [***653] legislative
accommodation: There is no reason to think they were meant to describe what was
constitutionally required (and judicially enforceable), as opposed to what was
thought to be legislatively or even morally desirable. Thus, for example, the
pamphlet written by James Madison opposing Virginia's proposed general
assessment for support of religion, [*542] post, at 17-19, does not argue that
the assessment would violate the "free exercise" provision in the Virginia
Declaration of Rights, although that provision had been enacted into law only
eight years earlier, post, at 14; rather the pamphlet argues that the assessment
wrongly placed civil society ahead of personal religious belief and, thus,
should not be approved [**2175] by the legislators, post, at 18. Likewise, the
letter from George Washington to the Quakers, post, at 20, by its own terms
refers to Washington's "wish and desire" that religion be accommodated, not his
belief that existing constitutional provisions required accommodation. These and
other examples offered by the dissent reflect the speakers' views of the "proper
" relationship between government and religion, post, at 21, but not their views
(at least insofar as the content or context of the material suggests) of the
constitutionally required relationship. The one exception is the statement by
Thomas Jefferson that he considered "the government of the United States as
interdicted by the Constitution from intermeddling with religious institutions,
their doctrines, discipline, or exercises," post, at 19-20 (internal quotation
marks omitted); but it is quite clear that Jefferson did not in fact espouse the
broad principle of affirmative accommodation advocated by the dissent, see
McConnell, 103 Harv. L. Rev., at 1449-1452.
It seems to me that the most telling point made by the dissent is to be
found, not in what it says, but in what it fails to say. Had the understanding
in the period surrounding the ratification of the Bill of Rights been that