521 U.S. 507 (1997), 95-2074, City of Boerne v. Flores

Docket NºCase No. 95-2074
Citation521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624, 65 U.S.L.W. 4612
Party NameCITY OF BOERNE v. FLORES, ARCHBISHOP OF SAN ANTONIO, et al.
Case DateJune 25, 1997
CourtUnited States Supreme Court

Page 507

521 U.S. 507 (1997)

117 S.Ct. 2157, 138 L.Ed.2d 624, 65 U.S.L.W. 4612

CITY OF BOERNE

v.

FLORES, ARCHBISHOP OF SAN ANTONIO, et al.

Case No. 95-2074

United States Supreme Court

June 25, 1997

Argued February 19, 1997

Certiorari to the United States Court of Appeals for the Fifth Circuit

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. 512-536.

(a) Congress enacted RFRA in direct response to Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 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, 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 "[g]overnment" from "substantially burden[ing]" a person's exercise of religion even if the burden results from a rule of general applicability unless the government can demonstrate the burden "(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that . . . 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. 512-516.

(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,

Page 508

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 Archbishop and the United States 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, its § 5 power "to enforce" is only preventive or "remedial," South Carolina v. Katzenbach, 383 U.S. 301, 326. 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; Oregon v. Mitchell, 400 U.S. 112, 209, 296. 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. 516-529.

(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

Page 509

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. 529-536.

73 F.3d 1352, reversed.

Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Thomas, and Ginsburg, JJ., joined, and in which Scalia, J., joined as to all but Part III-A-1. Stevens, J., filed a concurring opinion, post, p. 536. Scalia, J., filed an opinion concurring in part, in which Stevens, J., joined, post, p. 537. O'Connor, J., filed a dissenting opinion, in which Breyer, J., joined except as to the first paragraph of Part I, post, p. 544. Souter, J., post, p. 565, and Breyer, J., post, p. 566, filed dissenting opinions.

Marci A. Hamilton argued the cause for petitioner. With her on the briefs were Lowell F. Denton and Gordon L. Hollon.

Jeffrey S. Sutton, State Solicitor of Ohio, argued the cause for the State of Ohio et al. as amici curiae urging reversal. With him on the brief were Betty D. Montgomery, Attorney

Page 510

General of Ohio, Robert C. Maier and Todd Marti, Assistant Attorneys General, and the Attorneys General for their respective jurisdictions as follows: Malaetasi M. Togafau of American Samoa, Grant Woods of Arizona, Gale A. Norton of Colorado, M. Jane Brady of Delaware, Robert Butterworth of Florida, Calvin Holloway, Sr., of Guam, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, Mike Moore of Mississippi, Frankie Sue Del Papa of Nevada, Jeffrey R. Howard of New Hampshire, Michael F. Easley of North Carolina, W. A. Drew Edmondson of Oklahoma, Thomas W. Corbett, Jr., of Pennsylvania, and Julio A. Brady of the Virgin Islands.

Douglas Laycock argued the cause for respondent Flores. With him on the brief were Thomas Drought and Patricia J. Schofield. Acting Solicitor General Dellinger argued the cause for the United States. With him on the brief were Assistant Attorney General Hunger, Deputy Solicitor General Waxman, Patricia A. Millett, and Michael Jay Singer. [*]

Page 511

Justice Kennedy delivered the opinion of the Court.[*]

A decision by local zoning authorities to deny a church a building permit was challenged under the Religious Freedom Restoration Act of 1993 (RFRA or Act), 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

Page 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...

To continue reading

Request your trial
2111 practice notes
  • Federal Law Protections for Religious Liberty
    • United States
    • Federal Register October 26, 2017
    • October 26, 2017
    ...form of scrutiny identified by the Supreme Court. Church of the Lukumi Babalu Aye, 508 U.S. at 546; see also City of Boerne v. Flores, 521 U.S. 507, 534 (1997) (``Requiring a State to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving tha......
  • 19 F.Supp.2d 816 (S.D.Ohio 1998), C-1-96-764, Thrope v. State of Ohio
    • United States
    • Federal Cases United States District Courts 6th Circuit Southern District of Ohio
    • August 28, 1998
    ...to secure the guarantees of the Fourteenth Amendment, and its conclusions are entitled to much deference. See City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 2172, 138 L.Ed.2d 624 (1997) (citing Katzenbach v. Morgan, 384 U.S. 641, 651, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966)). In enact......
  • 203 F.R.D. 403 (S.D.Ind. 2001), IP 99-9310-C-B/S, In re Bromine Antitrust Litigation
    • United States
    • Federal Cases United States District Courts 7th Circuit Southern District of Indiana
    • September 28, 2001
    ...Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure: Civil § 1778. See City of Boerne v. Flores, 521 U.S. at 515-16, 117 S.Ct. 2157, 138 L.Ed.2d 624. Here, " Plaintiffs must establish that the common questions of law or fact predominate with respec......
  • 241 B.R. 862 (Bkrtcy.N.D.Ohio 1999), 98-3134, In re Pitts
    • United States
    • Federal Cases United States Bankruptcy Courts Sixth Circuit
    • September 9, 1999
    ...instead, only grants to Congress the power to achieve the remedial ends advanced by the Fourteenth Amendment. City of Boerne v. Flores, 521 U.S. 507, 519-21, 117 S.Ct. 2157, 2164, 138 L.Ed.2d 624 (1997). Hence, in conformity with these tenets, in order for the Privilege and Immunity Clause ......
  • Request a trial to view additional results
1623 cases
  • 19 F.Supp.2d 816 (S.D.Ohio 1998), C-1-96-764, Thrope v. State of Ohio
    • United States
    • Federal Cases United States District Courts 6th Circuit Southern District of Ohio
    • August 28, 1998
    ...to secure the guarantees of the Fourteenth Amendment, and its conclusions are entitled to much deference. See City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 2172, 138 L.Ed.2d 624 (1997) (citing Katzenbach v. Morgan, 384 U.S. 641, 651, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966)). In enact......
  • 203 F.R.D. 403 (S.D.Ind. 2001), IP 99-9310-C-B/S, In re Bromine Antitrust Litigation
    • United States
    • Federal Cases United States District Courts 7th Circuit Southern District of Indiana
    • September 28, 2001
    ...Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure: Civil § 1778. See City of Boerne v. Flores, 521 U.S. at 515-16, 117 S.Ct. 2157, 138 L.Ed.2d 624. Here, " Plaintiffs must establish that the common questions of law or fact predominate with respec......
  • 241 B.R. 862 (Bkrtcy.N.D.Ohio 1999), 98-3134, In re Pitts
    • United States
    • Federal Cases United States Bankruptcy Courts Sixth Circuit
    • September 9, 1999
    ...instead, only grants to Congress the power to achieve the remedial ends advanced by the Fourteenth Amendment. City of Boerne v. Flores, 521 U.S. 507, 519-21, 117 S.Ct. 2157, 2164, 138 L.Ed.2d 624 (1997). Hence, in conformity with these tenets, in order for the Privilege and Immunity Clause ......
  • 249 F.R.D. 334 (N.D.Cal. 2008), C 06-5125 SBA, Californians for Disability Rights, Inc. v. California Dept. of Transp.
    • United States
    • Federal Cases United States Bankruptcy Courts Ninth Circuit
    • March 13, 2008
    ...scheme that is " congruent and proportional" to the identified harm. See Docket No. 52 at 13; see also City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). Caltrans concedes the ADA satisfies the first two elements,3 but argues that the statute's " ......
  • Request a trial to view additional results
20 firm's commentaries
473 books & journal articles
  • Material to whom? Implementing Brady's duty to disclose at trial and during plea bargaining.
    • United States
    • American Criminal Law Review Vol. 50 Nbr. 3, June 2013
    • June 22, 2013
    ...Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 364-85 (2001) (Breyer, J., dissenting). (207.) In City of Boerne v. Flores, 521 U.S. 507, 532-34 (1997), the Court struck down a congressional statute interpreting the Free Exercise Clause more expansively than the Court, without ov......
  • Free exercise in the states: belief, conduct, and judicial benchmarks.
    • United States
    • Albany Law Review Vol. 63 Nbr. 4, June 2000
    • June 22, 2000
    ...burden results from a rule of general applicability. However, the Act was subsequently held unconstitutional in City of Boerne v. Flores, 521 U.S. 507, 536 (1997) (finding that as broad as the powers of Congress may be, the Religious Freedom Restoration Act "contradicts vital principle......
  • The new sovereignty and the old constitution: the chemical weapons convention and the Appointments Clause.
    • United States
    • Constitutional Commentary Vol. 15 Nbr. 1, March 1998
    • March 22, 1998
    ...452 (1991); New York v. United States,505 U.S. 144 (1992); Seminole Tribe v. Florida, 116 S. Ct. 1114 (1996); City of Boerne v. Flores, 117 S. Ct. 2157 (1997); Printz v. United States, 117 S. Ct. 2365 (1997); see also Yoo, 70 S. Cal. L. Rev. 1311 (cited in note 115). (169.) See Yoo, 84 Cal.......
  • Partial-birth abortion and the perils of constitutional common law.
    • United States
    • Harvard Journal of Law & Public Policy Vol. 31 Nbr. 2, March 2008
    • March 22, 2008
    ...The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 GEO. L.J. 217 (1994). (27.) See, e.g., City of Boerne v. Flores, 521 U.S. 507 (1997) (rejecting Congress's attempt to restore the Court's formerly generous approach to protecting the free exercise of religion). (28.) A di......
  • Request a trial to view additional results
4 provisions
  • Federal Law Protections for Religious Liberty
    • United States
    • Federal Register October 26, 2017
    • October 26, 2017
    ...form of scrutiny identified by the Supreme Court. Church of the Lukumi Babalu Aye, 508 U.S. at 546; see also City of Boerne v. Flores, 521 U.S. 507, 534 (1997) (``Requiring a State to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving tha......
  • Special regulations: Wupatki National Monument, AZ; golden eaglets; religious ceremonial collection by Hopi Tribe,
    • United States
    • Federal Register January 22, 2001
    • January 12, 2001
    ...such accommodation. \1\ The Supreme Court has held that RRA is unconstitutional as applied to state governments, City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157 (1997), but the question here is the impact of RFRA on the federal government. The American Indian Religious Freedom Act (A......
  • Sovereign Immunity Study
    • United States
    • Commerce Department,Patent And Trademark Office
    • Invalid date
    ...5, 2020 / Notices 1527 U.S. 627 (1999). 2527 U.S. 666 (1999). 3140 S. Ct. 994 (2020). 4U.S. Const. amend. XI. 5427 U.S. 445 (1976). 6521 U.S. 507 (1997). Committee serves as advisors to the Council’s Citizen Science Program. Committee members include representatives from the Council’s fishe......
  • Sovereign Immunity Study: Notice and Request for Public Comment
    • United States
    • Library Of Congress,U.s. Copyright Office
    • Invalid date
    ...U.S. 627 (1999). \20\ Id. at 640. \21\ Id. at 642. \22\ Id. at 643. \23\ Id. at 645. \24\ Id. at 639 (quoting City of Boerne v. Flores, 521 U.S. 507, 520 The Court in Florida Prepaid struck down the Patent Remedy Act for failure to meet these requirements. It concluded that Congress had not......