In City of Boerne v. Flores, 521 U.S. 507 ( 1997 ), the Supreme Court of the United States declared the Religious Freedom Restoration Act of 1993 (RFRA) unconstitutional as applied to state laws. Congress passed RFRA in response to the Supreme Court's decision in Employment Division v. Smith, 494 U.S. 872 ( 1990
City of Boerne v. Flores arose when the city officials in Boerne, Texas, refused to grant Archbishop P. F. Flores permission to expand the local Catholic Church. Boerne claimed the construction plan violated a city ordinance calling for the preservation of historic buildings. Flores responded that the historic preservation plan was inconsistent with RFRA because the law burdened Catholics who could not attend services for lack of space and did not serve a compelling state interest. The local district court declared RFRA unconstitutional, but that decision was reversed by the Court of Appeals for the Fifth Circuit.
A 6–3 Supreme Court majority reinstated the lower federal court ruling that RFRA was unconstitutional as applied to state laws (no dispute existed that RFRA was constitutionally applied only to federal laws). Justice Kennedy's opinion for the Court held that Congress did not have power under the Fourteenth Amendment to interpret the Constitution. Kennedy accepted such precedents as South Carolina v. Katzenbach, 383 U.S. 301 ( 1966 ), and Katzenbach v. Morgan, 384 U.S. 641 ( 1966
Kennedy introduced a “proportionality or congruence” test for determining when Congress was constitutionally deterring unconstitutional state behavior and when Congress was unconstitutionally reinterpreting the Constitution. This test has two elements. The first is whether there is a “congruence between the means used and the ends to be achieved” (384 U.S. at 530). The second is whether a high percentage of state laws prohibited by national legislation are likely to be unconstitutional. Congress, Kennedy concluded, satisfied neither element. The national legislature did not produce a record demonstrating that states frequently passed neutral laws for the purpose of burdening religious practice. Moreover, given the wide variety of religious practice in the United States, RFRA would require courts to dramatically curtail state power for the sake of preventing a limited number of constitutional violations.
Justice Sandra Day O'Connor's dissent endorsed Kennedy's interpretation of congressional power under Section 5. “If I agreed with the Court's standard in Smith,” she wrote, “I would join the Court's opinion” ; Congress, O'Connor and Kennedy agreed, “lacks the power to decree the substance of the Fourteenth Amendment's restrictions on the States” (384 U.S. at 545). O'Connor dissented only because she disagreed with the holding in Smith. States should be forbidden from burdening religious practice, in her view, because such burdens are prohibited by the free exercise clause of the First Amendment as incorporated by the due process clause of the Fourteenth Amendment.
The judicial decision to declare RFRA unconstitutional provoked extensive scholarly commentary. Marci Hamilton of Cardozo Law School, who argued the case for Boerne, insists the “decision invalidating the Act is a sterling example of the sturdiness of the Constitution's structure and, indeed, of the Court in the face of immense and impressive political pressure” ( Hamilton 1998, 702 ). In her view, “the Supreme Court's decision … reaffirms the Constitutional Convention's simultaneous faith in and distrust of national power” ( Hamilton 1998, 703 ). Douglas Laycock of the University of Virginia School of Law, who argued the case for Flores, insists that Kennedy failed to recognize that the point of Section 5 of the Fourteenth Amendment is that “Congress did not entrust the fruits of the Civil War to the unchecked discretion of the Court that decided Dred Scott v. San[d]ford” ( Laycock 1998, 765 ). In his view, “Congress's power to protect liberty in the states appears to have shrunk dramatically” ( Laycock 1998, 745 ).
Federal and state laws have modified the impact of City of Boerne. The ruling declared RFRA unconstitutional as applied to state laws only. The justices in Gonzales v. O Centro Espirita Beneficente Uniao Do Ve, 544 U.S. 973 ( 2006 ), ruled that RFRA was constitutional when applied to federal law, as the federal government when exercising the commerce and other powers is authorized to determine whether to provide exemptions for religious believers. In Cutter v. Wilkinson, 544 U.S. 709 ( 2005 ), the Supreme Court declared that a federal law requiring the compelling interest test for laws that burden the free exercise of prisoners met the congruence and proportionality standard because in that limited context Congress had demonstrated a high probability of constitutional violations. Finally, many states have passed either laws or constitutional amendments mandating exemptions for religious believers. City of Boerne held only that Congress could not hold states to a higher standard of religious freedom than does the Supreme Court. States remain free to protect more rights than protected by the Constitution of the United States as interpreted by the Supreme Court.
SEE ALSO Constitutional Dialogues ; Freedom of Religion: Free Exercise ; Judicial Supremacy ; Kennedy, Anthony M. ; Scalia, Antonin .
Hamilton, Marci A. “City of Boerne v. Flores: A Landmark for Structural Analysis.” William and Mary Law Review 39, no. 3 (1998): 699–723. http://scholarship.law.wm.edu/wmlr/vol39/iss3/ .
Laycock, Douglas. “Conceptual Gulfs in City of Boerne v. Flores.” William and Mary Law Review 39, no. 3 (1998): 743–92. http://scholarship.law.wm.edu/wmlr/vol39/iss3/ .
Waltman, Jerold. Congress, the Supreme Court, and Religious Liberty: The Case of City of Boerne v. Flores. New York: Palgrave Macmillan, 2013.
Mark A. Graber
University of Maryland Carey School of Law