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)
February 19, 1997, Argued
June 25, 1997, Decided
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.
OPINION BY: KENNEDY
OPINION
[***633] [*511] [**2160] JUSTICE
KENNEDY delivered the opinion of the Court. [Footnote*]
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
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). 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. 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).
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). 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]."
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
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.
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
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] 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] 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. 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.
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. 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. 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.
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.
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.
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. 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.
* * *
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.
CONCUR BY: 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). [Footnote 1] 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. [Footnote 2] 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.
[*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) [Footnote 3] 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.
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 the various forms of
accommodation discussed by the dissent were constitutionally required (either by
State Constitutions or by the Federal Constitution), it would be surprising not
to find a single state or federal case refusing to enforce a generally applicable
statute because of its failure to make accommodation. Yet the dissent cites none--and
to my knowledge, and to the knowledge of the academic defenders of the dissent's
position, see, e.g., id., at 1504, 1506-1511 (discussing early [*543]
cases), none exists. The closest one can come in the period prior to 1850 is the
decision of a New York City municipal court in 1813, holding that the New York Constitution
of 1777, quoted post, at 10, required acknowledgement of a priest-penitent privilege,
to protect a Catholic priest from being compelled to testify as to the contents
of a confession. People v. Philips, Court of General Sessions, City of
New York (June 14, 1813), excerpted in Privileged Communications to Clergymen, 1
Cath. Lawyer 199 (1955). Even this lone case is weak authority, not only because
it comes from a minor court, [Footnote 4] but also because it did not involve a
statute, and the same result might possibly have been achieved (without invoking
constitutional entitlement) by [***654] the court's simply modifying
the common-law rules of evidence to recognize such a privilege. On the other side
of the ledger, moreover, there are two cases, from the Supreme Court of Pennsylvania,
flatly rejecting the dissent's view. In Simon's Executors v. Gratz, 2 Pen.
& W. 412 (Pa. 1831), the court held that a litigant was not entitled to a continuance
of trial on the ground that appearing on his Sabbath would violate his religious
principles. And in Stansbury v. Marks, 2 U.S. 213, 2 Dall. 213, 1 L. Ed.
353 (Pa. 1793), decided just two years after the ratification of the Bill of Rights,
the court imposed a fine on a witness who "refused to be sworn, because it
was his Sabbath." [Footnote 5]
I have limited this response to the new items of "historical evidence"
brought forward by today's dissent. (The dissent's [*544] claim
that "before
Smith, our free exercise cases were generally in keeping" with
the dissent's view, post, at 3, is adequately answered in Smith itself.) The
historical evidence marshalled by the dissent cannot fairly be said to demonstrate
the correctness of
Smith; but it is more supportive of that conclusion than destructive
of it. And, to return to a point I made earlier, that evidence is not compatible
with any theory I am familiar with that has been proposed as an [**2176]
alternative to
Smith. The dissent's approach has, of course, great popular attraction.
Who can possibly be against the abstract proposition that government should not,
even in its general, nondiscriminatory laws, place unreasonable burdens upon religious
practice? Unfortunately, however, that abstract proposition must ultimately be reduced
to concrete cases. The issue presented by
Smith is, quite simply, whether the people, through their elected representatives,
or rather this Court, shall control the outcome of those concrete cases. For example,
shall it be the determination of this Court, or rather of the people, whether (as
the dissent apparently believes, post,, at 4) church construction will be exempt
from zoning laws? The historical evidence put forward by the dissent does nothing
to undermine the conclusion we reached in
Smith: It shall be the people.
DISSENT BY: O'CONNOR; SOUTER; BREYER
DISSENT
JUSTICE O'CONNOR, with whom JUSTICE BREYER joins except as to a portion of Part
I, dissenting.
I dissent from the Court's disposition of this case. I agree with the Court that
the issue before us is whether the Religious Freedom Restoration Act (RFRA) is a
proper exercise of Congress' power to enforce § 5 of the Fourteenth Amendment. But
as a yardstick for measuring the constitutionality of RFRA, the Court uses its holding
in Employment
Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 108
L. Ed. 2d 876, 110 S. Ct. 1595 (1990), the decision that prompted Congress to enact
RFRA as a means of more rigorously enforcing the Free Exercise Clause. I remain
of the view that
Smith was [*545] wrongly decided, and I would use
this case to reexamine the Court's holding there. Therefore, I would direct the
parties to brief the question whether
Smith represents the correct understanding of the Free [***655]
Exercise Clause and set the case for reargument. If the Court were to correct the
misinterpretation of the Free Exercise Clause set forth in Smith, it would simultaneously
put our First Amendment jurisprudence back on course and allay the legitimate concerns
of a majority in Congress who believed that
Smith improperly restricted religious liberty. We would then be in
a position to review RFRA in light of a proper interpretation of the Free Exercise
Clause.
I
I agree with much of the reasoning set forth in Part III-A of the Court's opinion.
Indeed, if I agreed with the Court's standard in
Smith, I would join the opinion. As the Court's careful and thorough
historical analysis shows, Congress lacks the "power to decree the substance
of the Fourteenth Amendment's restrictions on the States." Ante, at 9 (emphasis
added). Rather, its power under § 5 of the Fourteenth Amendment extends only to
enforcing the Amendment's provisions. In short, Congress lacks the ability independently
to define or expand the scope of constitutional rights by statute. Accordingly,
whether Congress has exceeded its § 5 powers turns on whether there is a "congruence
and proportionality between the injury to be prevented or remedied and the means
adopted to that end." Ante, at 10. This recognition does not, of course, in
any way diminish Congress' obligation to draw its own conclusions regarding the
Constitution's meaning. Congress, no less than this Court, is called upon to consider
the requirements of the Constitution and to act in accordance with its dictates.
But when it enacts legislation in furtherance of its delegated powers, Congress
must make its judgments consistent with this Court's exposition of the Constitution
and with the limits [*546] placed on its legislative authority
by provisions such as the Fourteenth Amendment.
The Court's analysis of whether RFRA is a constitutional exercise of Congress' §
5 power, set forth in Part III-B of its opinion, is premised on the assumption that
Smith
correctly interprets the Free Exercise Clause. This is an assumption that I do not
accept. I continue to believe that
Smith adopted an improper standard for deciding free exercise claims.
In Smith,
five Members of this Court--without briefing or argument on the issue--interpreted
the Free Exercise Clause to permit the government to prohibit, without justification,
conduct mandated by an individual's religious beliefs, so long as the prohibition
is generally applicable. Contrary [**2177] to the Court's holding
in that case, however, the Free Exercise Clause is not simply an antidiscrimination
principle that protects only against those laws that single out religious practice
for unfavorable treatment. See
Smith, supra, at 892-903 (O'CONNOR, J., concurring in judgment). Rather,
the Clause 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. Before
Smith,
our free exercise cases were generally in keeping with this idea: where a law substantially
burdened religiously motivated conduct--regardless whether it was specifically targeted
[***656]
at religion or applied generally--we required government to justify that law with
a compelling state interest and to use means narrowly tailored to achieve that interest.
See 494 U.S. at 894 (citing Hernandez v. Commissioner, 490 U.S. 680, 699,
104 L. Ed. 2d 766, 109 S. Ct. 2136 (1989); Hobbie v. Unemployment Appeals Comm'n
of Fla., 480 U.S. 136, 141, 94 L. Ed. 2d 190, 107 S. Ct. 1046 (1987); United
States v. Lee, 455 U.S. 252, 257-258, 71 L. Ed. 2d 127, 102 S. Ct.
1051 (1982); McDaniel v. Paty, 435 U.S. 618, 626-629, 55 L. Ed. 2d 593,
98 S. Ct. 1322 (1978); Wisconsin v. Yoder, 406 U.S. 205, 215, 32 L. Ed.
2d 15, 92 S. Ct. 1526 (1972); Gillette v. United States, 401 U.S. 437,
462, 28 L. Ed. 2d 168, 91 S. Ct. 828 (1971); Sherbert v. Verner, 374 U.S.
398, 403, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963)). [*547]
The Court's rejection of this principle in
Smith is supported neither by precedent nor, as discussed below, by
history. The decision has harmed religious liberty. For example, a Federal District
Court, in reliance on
Smith, ruled that the Free Exercise Clause was not implicated where
Hmong natives objected on religious grounds to their son's autopsy, conducted pursuant
to a generally applicable state law. Yang v. Sturner, 750 F. Supp. 558,
559 (RI 1990). The Court of Appeals for the Eighth Circuit held that application
of a city's zoning laws to prevent a church from conducting services in an area
zoned for commercial uses raised no free exercise concerns, even though the city
permitted secular not-for-profit organizations in that area. Cornerstone Bible Church
v. Hastings, 948 F.2d 464 (CA8 1991); see also Rector of St. Bartholomew's
Church v. New York, 914 F.2d 348, 355 (CA2 1990) (no Free Exercise
claim where city's application of facially neutral landmark designation law "drastically
restricted the Church's ability to raise revenue to carry out its various charitable
and ministerial programs"), cert. denied, 499 U.S. 905, 113 L. Ed.
2d 214, 111 S. Ct. 1103 (1991); State v. Hershberger, 462 N.W.2d 393 (Minn.
1990) (Free Exercise Clause provided no basis for exempting an Amish farmer from
displaying a bright orange triangle on his buggy, to which the farmer objected on
religious grounds, even though the evidence showed that some other material would
have served the State's purpose equally well). These cases demonstrate that lower
courts applying
Smith no longer find necessary a searching judicial inquiry into the
possibility of reasonably accommodating religious practice.
Stare decisis concerns should not prevent us from revisiting our holding in Smith.
"'Stare decisis is a principle of policy and not a mechanical formula of adherence
to the latest decision, however recent and questionable, when such adherence involves
collision with a prior doctrine more embracing in its scope, intrinsically sounder,
and verified by experience.'" Adarand Constructors, Inc. v. Pena,
515 U.S. 200, [*548] 231, 132 L. Ed. 2d 158, 115 S. Ct. 2097 (1995)
(citing Helvering v. Hallock, 309 U.S. 106, 119, 84 L. Ed. 604, 60 S. Ct.
444 (1940)). This principle is particularly true in constitutional cases, where--as
this case so plainly illustrates--"correction through legislative action is
practically impossible." Seminole Tribe of Fla. v. Florida, 517 U.S.
___, ___, 116 S. Ct. 1114, ___, 134 L. Ed. 2d ___, ___ (1996) (internal quotation
marks and citation omitted). I believe that, in [***657] light
of both our precedent and our Nation's tradition of religious liberty, Smith is demonstrably
wrong. Moreover, it is a recent decision. As such, it has not engendered the kind
of reliance on its continued application that would militate against overruling
it. Cf. Planned Parenthood [**2178] of Southeastern Pa.
v. Casey, 505 U.S. 833, 855-856, 120 L. Ed. 2d 674, 112 S. Ct. 2791 (1992).
Accordingly, I believe that we should reexamine our holding in Smith, and do so in
this very case. In its place, I would return to a rule that requires government
to justify any substantial burden on religiously motivated conduct by a compelling
state interest and to impose that burden only by means narrowly tailored to achieve
that interest.
II
I shall not restate what has been said in other opinions, which have demonstrated
that Smith
is gravely at odds with our earlier free exercise precedents. See Church of Lukumi
Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 570-571, 124 L. Ed. 2d 472,
113 S. Ct. 2217 (1993) (SOUTER, J., concurring) (stating that it is "difficult
to escape the conclusion that, whatever
Smith's virtues, they do not include a comfortable fit with settled
law");
Smith, supra, at 894-901 (O'CONNOR, J., concurring); see also McConnell,
Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109, 1120-1127
(1990). Rather, I examine here the early American tradition of religious free exercise
to gain insight into the original understanding of the Free Exercise Clause--an
inquiry the Court in
Smith did not undertake. We have previously recognized the importance
of interpreting the Religion Clauses in light of their history. Lynch v. Donnelly,
465 U.S. 668, 673, 79 L. Ed. 2d 604, 104 S. Ct. 1355 (1984) ("The Court's
[*549] interpretation of the Establishment Clause has comported with
what history reveals was the contemporaneous understanding of its guarantees");
School Dist. of Abington Township v. Schempp, 374 U.S. 203, 212-214, 10
L. Ed. 2d 844, 83 S. Ct. 1560 (1963).
The historical evidence casts doubt on the Court's current interpretation of the
Free Exercise Clause. The record instead reveals that its drafters and ratifiers
more likely viewed the Free Exercise Clause as a guarantee that government may not
unnecessarily hinder believers from freely practicing their religion, a position
consistent with our pre-Smith
jurisprudence.
A
The original Constitution, drafted in 1787 and ratified by the States in 1788, had
no provisions safeguarding individual liberties, such as freedom of speech or religion.
Federalists, the chief supporters of the new Constitution, took the view that amending
the Constitution to explicitly protect individual freedoms was superfluous, since
the rights that the amendments would protect were already completely secure. See,
e.g., 1 Annals of Congress 440, 443-444, 448-459 (Gales and Seaton ed. 1834) (remarks
of James Madison, June 8, 1789). Moreover, they feared that guaranteeing certain
civil liberties might backfire, since the express mention of some freedoms might
imply that others were not protected. According to Alexander Hamilton, a Bill of
Rights would even be dangerous, in that by specifying "various exceptions
[***658] to powers" not granted, it "would afford a colorable
pretext to claim more than were granted." The Federalist No. 84, p. 513 (C.
Rossiter ed. 1961). Anti-Federalists, however, insisted on more definite guarantees.
Apprehensive that the newly established federal government would overwhelm the rights
of States and individuals, they wanted explicit assurances that the federal government
had no power in matters of personal liberty. T. Curry, The First Freedoms: Church
and State in America to the Passage of the First Amendment 194 (1986). Additionally,
Baptists and other Protestant dissenters feared for their religious liberty under
[*550] the new Federal Government and called for an amendment guaranteeing
religious freedom. Id., at 198.
In the end, legislators acceded to these demands. By December 1791, the Bill of
Rights had been added to the Constitution. With respect to religious liberty, the
First Amendment provided: "Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof." U.S. Const., Amdt.
1. Neither the First Congress nor the ratifying state legislatures debated the question
of religious freedom in much detail, nor did they directly consider [**2179]
the scope of the First Amendment's free exercise protection. It would be disingenuous
to say that the Framers neglected to define precisely the scope of the Free Exercise
Clause because the words "free exercise" had a precise meaning. L. Levy,
Essays on American Constitutional History 173 (1972). As is the case for a number
of the terms used in the Bill of Rights, it is not exactly clear what the Framers
thought the phrase signified. Ibid. ("It is astonishing to discover that the
debate on a Bill of Rights was conducted on a level of abstraction so vague as to
convey the impression that Americans of 1787-1788 had only the most nebulous conception
of the meanings of the particular rights they sought to insure"). But a variety
of sources supplement the legislative history and shed light on the original understanding
of the Free Exercise Clause. These materials suggest that--contrary to Smith--the Framers
did not intend simply to prevent the Government from adopting laws that discriminated
against religion. Although the Framers may not have asked precisely the questions
about religious liberty that we do today, the historical record indicates that they
believed that the Constitution affirmatively protects religious free exercise and
that it limits the government's ability to intrude on religious practice.
B
The principle of religious "free exercise" and the notion that religious
liberty deserved legal protection were by no [*551] means new concepts
in 1791, when the Bill of Rights was ratified. To the contrary, these principles
were first articulated in this country in the colonies of Maryland, Rhode Island,
Pennsylvania, Delaware, and Carolina, in the mid-1600's. These colonies, though
established as sanctuaries for particular groups of religious dissenters, extended
freedom of religion to groups--although often limited to Christian groups--beyond
their own. Thus, they encountered early on the conflicts that may arise in a society
made up of a plurality of faiths.
The term "free exercise" appeared in an American legal document as
[***659] early as 1648, when Lord Baltimore extracted from the new
Protestant governor of Maryland and his councilors a promise not to disturb Christians,
particularly Roman Catholics, in the "free exercise" of their religion.
McConnell, The Origins and Historical Understanding of Free Exercise of Religion,
103 Harv. L. Rev. 1409, 1425 (1990) (hereinafter Origins of Free Exercise). Soon
after, in 1649, the Maryland Assembly enacted the first free exercise clause by
passing the Act Concerning Religion: "Noe person . . . professing to believe
in Jesus Christ, shall from henceforth bee any waies troubled, Molested or discountenanced
for or in respect of his or her religion nor in the free exercise thereof . . .
nor any way [be] compelled to the believe or exercise of any other Religion against
his or her consent, soe as they be not unfaithful to the Lord Proprietary, or molest
or conspire against the civil Governemt." Act Concerning Religion of 1649,
reprinted in 5 The Founders' Constitution 49, 50 (P. Kurland & R. Lerner eds.
1987) (hereinafter Founders' Constitution). Rhode Island's Charter of 1663 used
the analogous term "liberty of conscience." It protected residents from
being "in any ways molested, punished, disquieted, or called into question,
for any differences in opinion, in matters of religion, and do not actually disturb
the civil peace of our said colony." The Charter further provided that residents
may "freely, and fully have and enjoy his and their own judgments, and conscience
in matters of religious [*552] concernments . . .; they behaving
themselves peaceably and quietly and not using this liberty to licentiousness and
profaneness; nor to the civil injury, or outward disturbance of others." Charter
of Rhode Island and Providence Plantations, 1663, in 8 W. Swindler, Sources and
Documents of United States Constitutions 363 (1979). Various agreements between
prospective settlers and the proprietors of Carolina, New York, and New Jersey similarly
guaranteed religious freedom, using language that paralleled that of the Rhode Island
Charter of 1663. See New York Act Declaring Rights & Priviledges (1691); Concession
and Agreement of the Lords Proprietors of the Province of New Caesarea, or New-Jersey
(1664); Laws of West New-Jersey, Art. X (1681); Fundamental [**2180]
Constitutions for East New-Jersey, Art. XVI (1683); First Charter of Carolina, Art.
XVIII (1663). N. Cogan, The Complete Bill of Rights 23-27 (Galley 1997).
These documents suggest that, early in our country's history, several colonies acknowledged
that freedom to pursue one's chosen religious beliefs was an essential liberty.
Moreover, these colonies appeared to recognize that government should interfere
in religious matters only when necessary to protect the civil peace or to prevent
"licentiousness." In other words, when religious beliefs conflicted with
civil law, religion prevailed unless important state interests militated otherwise.
Such notions parallel the ideas expressed in our pre-Smith
cases--that government may not hinder believers from freely exercising their religion,
unless necessary to further a significant state interest.
C
The principles expounded in these early charters re-emerged over a century later
in state constitutions that were adopted in the flurry of [***660]
constitution-drafting that followed the American Revolution. By 1789, every State
but Connecticut had incorporated some version of a free exercise [*553]
clause into its constitution. Origins of Free Exercise 1455. These state provisions,
which were typically longer and more detailed than the federal Free Exercise Clause,
are perhaps the best evidence of the original understanding of the Constitution's
protection of religious liberty. After all, it is reasonable to think that the States
that ratified the First Amendment assumed that the meaning of the federal free exercise
provision corresponded to that of their existing state clauses. The precise language
of these state precursors to the Free Exercise Clause varied, but most guaranteed
free exercise of religion or liberty of conscience, limited by particular, defined
state interests. For example, the New York Constitution of 1777 provided:
"The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever hereafter be allowed, within this State,
to all mankind: Provided, That the liberty of conscience, hereby granted, shall
not be so construed as to excuse acts of licentiousness, or justify practices inconsistent
with the peace or safety of this State." N. Y. Const., Art. XXXVIII (1777),
in 7 Swindler, supra, at 178 (emphasis added).
Similarly, the New Hampshire Constitution of 1784 declared:
"Every individual has a natural and unalienable right to worship GOD according
to the dictates of his own conscience, and reason; and no subject shall be hurt,
molested, or restrained in his person, liberty or estate for worshipping GOD, in
the manner and season most agreeable to the dictates of his own conscience, . .
. provided he doth not disturb the public peace, or disturb others, in their religious
worship." N. H. Const., Art. I, § 5 (1784), in 6 Swindler, supra, at 345 (emphasis
added).
The Maryland Declaration of Rights of 1776 read:
"No person ought by any law to be molested in his person or estate on account
of his religious persuasion [*554] or profession, or for his religious
practice; unless, under colour of religion, any man shall disturb the good order,
peace or safety of the State, or shall infringe the laws of morality, or injure
others, in their natural, civil, or religious rights." Md. Const., Declaration
of Rights, Art. XXXIII in 4 Swindler, supra, at 374 (emphasis added).
The religious liberty clause of the Georgia Constitution of 1777 stated:
"All persons whatever shall have the free exercise of their religion; provided
it be not repugnant to the peace and safety of the State." Ga. Const., Art.
LVI (1777), in 2 Swindler, supra, at 449 (emphasis added).
In addition to these state provisions, the Northwest Ordinance of 1787--which was
enacted contemporaneously with the drafting of the Constitution and re-enacted by
the First Congress--established a bill of rights for a territory that included what
is now Ohio, Indiana, Michigan, Wisconsin, and part of Minnesota. Article I of the
Ordinance declared: [**2181]
"No person, demeaning himself in a peaceable and orderly manner, [***66]
shall ever be molested on account of his mode of worship or religious sentiments,
in the said territory." Northwest Territory Ordinance of 1787, Art. I, 1 Stat.
52 (emphasis added).
The language used in these state constitutional provisions and the Northwest Ordinance
strongly suggests that, around the time of the drafting of the Bill of Rights, it
was generally accepted that the right to "free exercise" required, where
possible, accommodation of religious practice. If not--and if the Court was correct
in Smith
that generally applicable laws are enforceable regardless of religious conscience--there
would have been no need for these documents to specify, as the New York Constitution
did, that rights of conscience should not be "construed as to excuse acts of
licentiousness, or justify practices inconsistent with the peace or safety of [the]
State." Such a proviso would have been superfluous. [*555]
Instead, these documents make sense only if the right to free exercise was viewed
as generally superior to ordinary legislation, to be overridden only when necessary
to secure important government purposes.
The Virginia Legislature may have debated the issue most fully. In May 1776, the
Virginia Constitutional Convention wrote a constitution containing a Declaration
of Rights with a clause on religious liberty. The initial drafter of the clause,
George Mason, proposed the following:
"That religion, or the duty which we owe to our CREATOR, and the manner of
discharging it, can be (directed) only by reason and conviction, not by force or
violence; and therefore, that all men should enjoy the fullest toleration in the
exercise of religion, according to the dictates of conscience, unpunished and unrestrained
by the magistrate, unless, under colour of religion, any man disturb the peace,
the happiness, or safety of society. And that it is the mutual duty of all to practice
Christian forbearance, love, and charity towards each other." Committee Draft
of the Virginia Declaration of Rights, 1 Papers of George Mason 284-285 (R. Rutland
ed. 1970) (emphasis added).
Mason's proposal did not go far enough for a 26-year-old James Madison, who had
recently completed his studies at the Presbyterian College of Princeton. He objected
first to Mason's use of the term "toleration," contending that the word
implied that the right to practice one's religion was a governmental favor, rather
than an inalienable liberty. Second, Madison thought Mason's proposal countenanced
too much state interference in religious matters, since the "exercise of religion"
would have yielded whenever it was deemed inimical to "the peace, happiness,
or safety of society." Madison suggested the provision read instead:
"'That religion, or the duty we owe our Creator, and the manner of discharging
it, being under the direction [*556] of reason and conviction only,
not of violence or compulsion, all men are equally entitled to the full and free
exercise of it, according to the dictates of conscience; and therefore that no man
or class of men ought on account of religion to be invested with peculiar emoluments
or privileges, nor subjected to any penalties or disabilities, unless under color
of religion the preservation of equal [***662] liberty, and the
existence of the State be manifestly endangered.'" G. Hunt, James Madison and
Religious Liberty, 1 Annual Report of the American Historical Association 163, 166-167
(1901) (emphasis added).
Thus, Madison wished to shift Mason's language of "toleration" to the
language of rights. See S. Cobb, The Rise of Religious Liberty in America 492 (1902)
(reprint 1970) (noting that Madison objected to the word "toleration"
as belonging to "a system where was an established Church, and where a certain
liberty of worship was granted, not of right, but of grace"). Additionally,
under Madison's proposal, the State could interfere in a believer's religious exercise
only if the State would otherwise "be manifestly endangered." In the end,
neither Mason's nor Madison's language regarding the extent to which state interests
could limit religious exercise made it into the Virginia Constitution's religious
liberty clause. Like the federal Free Exercise Clause, the Virginia religious
[**2182] liberty clause was simply silent on the subject, providing
only that "all men are equally entitled to the free exercise of religion, according
to the dictates of conscience." Virginia Declaration of Rights, Art. XVI (1776),
in 10 Swindler, Sources and Documents of United States Constitutions, at 50. For
our purposes, however, it is telling that both Mason's and Madison's formulations
envisioned that, when there was a conflict, a person's interest in freely practicing
his religion was to be balanced against state interests. Although Madison endorsed
a more limited state interest exception than did Mason, the debate would have been
irrelevant if either had thought the right to free exercise did not [*557]
include a right to be exempt from certain generally applicable laws. Presumably,
the Virginia Legislature intended the scope of its free exercise provision to strike
some middle ground between Mason's narrower and Madison's broader notions of the
right to religious freedom.
D
The practice of the colonies and early States bears out the conclusion that, at
the time the Bill of Rights was ratified, it was accepted that government should,
when possible, accommodate religious practice. Unsurprisingly, of course, even in
the American colonies inhabited by people of religious persuasions, religious conscience
and civil law rarely conflicted. Most 17th and 18th century Americans belonged to
denominations of Protestant Christianity whose religious practices were generally
harmonious with colonial law. Curry, The First Freedoms, at 219 ("The vast
majority of Americans assumed that theirs was a Christian, i.e. Protestant, country,
and they automatically expected that government would uphold the commonly agreed
on Protestant ethos and morality"). Moreover, governments then were far smaller
and less intrusive than they are today, which made conflict between civil law and
religion unusual.
Nevertheless, tension between religious conscience and generally applicable laws,
though rare, was not unknown in pre-Constitutional America. Most commonly, such
conflicts arose from oath requirements, military conscription, and religious assessments.
Origins of Free Exercise 1466. The ways in which these conflicts were resolved suggest
that [***663] Americans in the colonies and early States thought
that, if an individual's religious scruples prevented him from complying with a
generally applicable law, the government should, if possible, excuse the person
from the law's coverage. For example, Quakers and certain other Protestant sects
refused on Biblical grounds to subscribe to oaths or "swear" allegiance
to civil authority. A. Adams & C. Emmerich, [*558] A Nation
Dedicated to Religious Liberty: The Constitutional Heritage of the Religion Clauses
14 (1990) (hereinafter Adams & Emmerich). Without accommodation, their beliefs
would have prevented them from participating in civic activities involving oaths,
including testifying in court. Colonial governments created alternatives to the
oath requirement for these individuals. In early decisions, for example, the Carolina
proprietors applied the religious liberty provision of the Carolina Charter of 1665
to permit Quakers to enter pledges in a book. Curry, The First Freedoms, at 56.
Similarly, in 1691, New York enacted a law allowing Quakers to testify by affirmation,
and in 1734, it permitted Quakers to qualify to vote by affirmation. Id., at 64.
By 1789, virtually all of the States had enacted oath exemptions. See Adams &
Emmerich 62.
Early conflicts between religious beliefs and generally applicable laws also occurred
because of military conscription requirements. Quakers and Mennonites, as well as
a few smaller denominations, refused on religious grounds to carry arms. Members
of these denominations asserted that liberty of conscience should exempt them from
military conscription. Obviously, excusing such objectors from military service
had a high public cost, given the importance of the military to the defense of society.
Nevertheless, Rhode Island, North Carolina, and Maryland exempted Quakers from military
service in the late 1600's. New York, Massachusetts, Virginia, and New Hampshire
followed suit in the mid-1700's. Origins of Free Exercise 1468. The Continental
Congress likewise granted exemption from conscription: [**2183]
"As there are some people, who, from religious principles, cannot bear arms
in any case, this Congress intend no violence to their consciences, but earnestly
recommend it to them, to contribute liberally in this time of universal calamity,
to the relief of their distressed brethren in the several colonies, and to do all
other services to their oppressed Country, which they can consistently [*559]
with their religious principles." Resolution of July 18, 1775, reprinted in
2 Journals of the Continental Congress, 1774-1789, pp. 187, 189 (W. Ford ed. 1905).
Again, this practice of excusing religious pacifists from military service demonstrates
that, long before the First Amendment was ratified, legislative accommodations were
a common response to conflicts between religious practice and civil obligation.
Notably, the Continental Congress exempted objectors from conscription to avoid
"violence to their consciences," explicitly recognizing that civil laws
must sometimes give way to freedom of conscience. Origins of Free Exercise 1468.
States and colonies with established churches encountered a further religious accommodation
problem. Typically, these governments [***664] required citizens
to pay tithes to support either the government-established church or the church
to which the tithepayer belonged. But Baptists and Quakers, as well as others, opposed
all government-compelled tithes on religious grounds. Id., at 1469. Massachusetts,
Connecticut, New Hampshire, and Virginia responded by exempting such objectors from
religious assessments. Ibid. There are additional examples of early conflicts between
civil laws and religious practice that were similarly settled through accommodation
of religious exercise. Both North Carolina and Maryland excused Quakers from the
requirement of removing their hats in court; Rhode Island exempted Jews from the
requirements of the state marriage laws; and Georgia allowed groups of European
immigrants to organize whole towns according to their own faith. Id., at 1471.
To be sure, legislatures, not courts, granted these early accommodations. But these
were the days before there was a Constitution to protect civil liberties--judicial
review did not yet exist. These legislatures apparently believed that the appropriate
response to conflicts between civil law and religious scruples was, where possible,
accommodation of religious [*560] conduct. It is reasonable to
presume that the drafters and ratifiers of the First Amendment--many of whom served
in state legislatures--assumed courts would apply the Free Exercise Clause similarly,
so that religious liberty was safeguarded.
E
The writings of the early leaders who helped to shape our Nation provide a final
source of insight into the original understanding of the Free Exercise Clause. The
thoughts of James Madison--one of the principal architects of the Bill of Rights--as
revealed by the controversy surrounding Virginia's General Assessment Bill of 1784,
are particularly illuminating. Virginia's debate over religious issues did not end
with its adoption of a constitutional free exercise provision. Although Virginia
had disestablished the Church of England in 1776, it left open the question whether
religion might be supported on a nonpreferential basis by a so-called "general
assessment." Levy, Essays on American Constitutional History, at 200. In the
years between 1776 and 1784, the issue how to support religion in Virginia--either
by general assessment or voluntarily--was widely debated. Curry, The First Freedoms,
at 136.
By 1784, supporters of a general assessment, led by Patrick Henry, had gained a
slight majority in the Virginia Assembly. M. Malbin, Religion and Politics: The
Intentions of the Authors of the First Amendment 23 (1978); Levy, supra, at 200.
They introduced "A Bill Establishing a Provision for the Teachers of the Christian
Religion," which proposed that citizens be taxed in order to support the Christian
denomination of their choice, with those taxes not designated for any specific denomination
to go to a public fund to aid seminaries. Levy, supra, at 200-201; Curry, supra,
at 140-141; Malbin, supra, at 23. Madison viewed religious assessment as a dangerous
infringement of religious liberty and led the opposition to the [**2184]
bill. He took the case against religious assessment to the people of Virginia in
his now-famous "Memorial [*561] and Remonstrance Against Religious
Assessments." Levy, supra, at 201. This [***665] pamphlet
led thousands of Virginians to oppose the bill and to submit petitions expressing
their views to the legislature. Malbin, supra, at 24. The bill eventually died in
committee, and Virginia instead enacted a Bill for Establishing Religious Freedom,
which Thomas Jefferson had drafted in 1779. Malbin, supra, at 24.
The "Memorial and Remonstrance" begins with the recognition that "the
Religion . . . of every man must be left to the conviction and conscience of every
man; and it is the right of every man to exercise it as these may dictate."
2 Writings of James Madison 184 (G. Hunt ed. 1901). By its very nature, Madison
wrote, the right to free exercise is "unalienable," both because a person's
opinion "cannot follow the dictates of others," and because it entails
"a duty toward the Creator." Ibid. Madison continued:
"This duty [owed the Creator] is precedent both in order of time and degree
of obligation, to the claims of Civil Society. . . . Every man who becomes a member
of any Civil Society, [must] do it with a saving of his allegiance to the Universal
Sovereign. We maintain therefore that in matters of Religion, no man's right is
abridged by the institution of Civil Society, and that Religion is wholly exempt
from its cognizance." Id., at 184-185.
To Madison, then, duties to God were superior to duties to civil authorities--the
ultimate loyalty was owed to God above all. Madison did not say that duties to the
Creator are precedent only to those laws specifically directed at religion, nor
did he strive simply to prevent deliberate acts of persecution or discrimination.
The idea that civil obligations are subordinate to religious duty is consonant with
the notion that government must accommodate, where possible, those religious practices
that conflict with civil law. [*562]
Other early leaders expressed similar views regarding religious liberty. Thomas
Jefferson, the drafter of Virginia's Bill for Establishing Religious Freedom, wrote
in that document that civil government could interfere in religious exercise only
"when principles break out into overt acts against peace and good order."
In 1808, he indicated that he considered "'the government of the United States
as interdicted by the Constitution from intermeddling with religious institutions,
their doctrines, discipline, or exercises.'" 11 The Writings of Thomas Jefferson
428-429 (A. Lipscomb ed. 1904) (quoted in Office of Legal Policy, U.S. Dept. of
Justice, Report to the Attorney General, Religious Liberty under the Free Exercise
Clause 7 (1986)). Moreover, Jefferson believed that "'every religious society
has a right to determine for itself the time of these exercises, and the objects
proper for them, according to their own particular tenets; and this right can never
be safer than in their own hands, where the Constitution has deposited it.'"
Ibid.
George Washington expressly stated that he believed that government should do its
utmost to accommodate religious scruples, writing in a letter to a group of Quakers:
"In my opinion the conscientious scruples of all men should be treated with
great delicacy and tenderness; and it is my wish and desire, that the laws may always
be as extensively accommodated to [***666] them, as a due regard
to the protection and essential interests of the nation may justify and permit."
Letter from George Washington to the Religious Society Called Quakers (Oct. 1789),
in George Washington on Religious Liberty and Mutual Understanding 11 (E. Humphrey
ed. 1932).
Oliver Ellsworth, a Framer of the First Amendment and later Chief Justice of the
United States, expressed the similar view that government could interfere in religious
matters only when necessary "to prohibit and punish gross immoralities
[*563] and impieties; because the open practice of these is of evil
example and detriment." Oliver Ellsworth, Landholder, No. 7 (Dec. 17, 1787),
reprinted in 4 Founders' Constitution, 640. Isaac Backus, a Baptist minister who
was a delegate to the Massachusetts ratifying convention of 1788, declared that
"'every person has an unalienable right to act in all religious affairs according
to the full persuasion of his own [**2185] mind, where others are
not injured thereby.'" Backus, A Declaration of Rights, of the Inhabitants
of the State of Massachusetts-Bay, in Isaac Backus on Church, State, and Calvinism
487 (W. McLoughlin ed. 1968).
These are but a few examples of various perspectives regarding the proper relationship
between church and government that existed during the time the First Amendment was
drafted and ratified. Obviously, since these thinkers approached the issue of religious
freedom somewhat differently, see Adams & Emmerich 21-31, it is not possible
to distill their thoughts into one tidy formula. Nevertheless, a few general principles
may be discerned. Foremost, these early leaders accorded religious exercise a special
constitutional status. The right to free exercise was a substantive guarantee of
individual liberty, no less important than the right to free speech or the right
to just compensation for the taking of property. See P. Kauper, Religion and the
Constitution 17 (1964) ("Our whole constitutional history . . . supports the
conclusion that religious liberty is an independent liberty, that its recognition
may either require or permit preferential treatment on religious grounds in some
instances . . . "). As Madison put it in the concluding argument of his "Memorial
and Remonstrance":
"'The equal right of every citizen to the free exercise of his Religion according
to the dictates of [his] conscience' is held by the same tenure with all our other
rights. . . . It is equally the gift of nature; . . . it cannot be less dear to
us; . . . it is enumerated with equal solemnity, [*564] or rather
studied emphasis." 2 Writings of James Madison, at 191.
Second, all agreed that government interference in religious practice was not to
be lightly countenanced. Adams & Emmerich at 31. Finally, all shared the conviction
that "'true religion and good morals are the only solid foundation of public
liberty and happiness.'" Curry, The First Freedoms, at 219 (quoting Continental
Congress); see Adams & Emmerich at 72 ("The Founders . . . acknowledged
that the republic rested largely on moral principles derived from religion").
To give meaning to these ideas--particularly in a society characterized by religious
pluralism and pervasive regulation--there will be times when the Constitution requires
government to accommodate the needs of those citizens [***667]
whose religious practices conflict with generally applicable law.
III
The Religion Clauses of the Constitution represent a profound commitment to religious
liberty. Our Nation's Founders conceived of a Republic receptive to voluntary religious
expression, not of a secular society in which religious expression is tolerated
only when it does not conflict with a generally applicable law. As the historical
sources discussed above show, the Free Exercise Clause is properly understood as
an affirmative guarantee of the right to participate in religious activities without
impermissible governmental interference, even where a believer's conduct is in tension
with a law of general application. Certainly, it is in no way anomalous to accord
heightened protection to a right identified in the text of the First Amendment.
For example, it has long been the Court's position that freedom of speech--a right
enumerated only a few words after the right to free exercise--has special constitutional
status. Given the centrality of freedom of speech and religion to the American concept
of personal liberty, it is altogether reasonable to conclude [*565]
that both should be treated with the highest degree of respect.
Although it may provide a bright line, the rule the Court declared in Smith does not faithfully
serve the purpose of the Constitution. Accordingly, I believe that it is essential
for the Court to reconsider its holding in
Smith--and to do so in this very case. I would therefore direct the
parties to brief this issue and set the case for reargument.
I respectfully dissent from the Court's disposition of this case.
JUSTICE SOUTER, dissenting.
To decide whether the Fourteenth Amendment gives Congress sufficient power to enact
the Religious Freedom Restoration Act, the Court measures the legislation against
[**2186] the free-exercise standard of Employment Div., Dept. of Human
Resources of Ore. v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876, 110 S.
Ct. 1595 (1990). For the reasons stated in my opinion in Church of Lukumi Babalu
Aye, Inc. v. Hialeah, 508 U.S. 520, 564-577, 124 L. Ed. 2d 472, 113 S.
Ct. 2217 (1993) (opinion concurring in part and concurring in judgment), I have
serious doubts about the precedential value of the
Smith rule and its entitlement to adherence. These doubts are intensified
today by the historical arguments going to the original understanding of the Free
Exercise Clause presented in JUSTICE O'CONNOR's opinion, ante, at 5-21, which raises
very substantial issues about the soundness of the
Smith rule. See also ante, at 1-9 (JUSTICE SCALIA, concurring) (addressing
historical arguments). But without briefing and argument on the merits of that rule
(which this Court has never had in any case, including
Smith itself, see Lukumi, supra, at 571-572), I am not now
prepared to join JUSTICE O'CONNOR in rejecting it or the majority in assuming it
to be correct. In order to provide full adversarial consideration, this case should
be set down for reargument permitting plenary reexamination of the issue. Since
the Court declines to follow that course, our free-exercise [*566]
law remains marked by an "intolerable tension," Lukumi, 508 U.S.
at 574, [***668] and the constitutionality of the Act of Congress
to enforce the free-exercise right cannot now be soundly decided. I would therefore
dismiss the writ of certiorari as improvidently granted, and I accordingly dissent
from the Court's disposition of this case.
JUSTICE BREYER, dissenting.
I agree with JUSTICE O'CONNOR that the Court should direct the parties to brief
the question whether
Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S.
872, 108 L. Ed. 2d 876, 110 S. Ct. 1595 (1990) was correctly decided, and set this
case for reargument. I do not, however, find it necessary to consider the question
whether, assuming
Smith is correct, § 5 of the Fourteenth Amendment would authorize Congress
to enact the legislation before us. Thus, while I agree with some of the views expressed
in the first paragraph of Part I of JUSTICE O'CONNOR's dissent, I do not necessarily
agree with all of them. I therefore join JUSTICE O'CONNOR's dissent, with the exception
of the first paragraph of Part I.