Flores v. City of Boerne, Tex.

• Decision Date: 23 January 1996
• Docket Number: No. 95-50306,95-50306
• Citation: 73 F.3d 1352
• Parties: P.F. FLORES, Archbishop of San Antonio, Plaintiff-Appellant, and United States of America, Intervenor-Plaintiff-Appellant, v. CITY OF BOERNE, TEXAS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1352

73 F.3d 1352

64 USLW 2472

P.F. FLORES, Archbishop of San Antonio, Plaintiff-Appellant, and United States of America, Intervenor-Plaintiff-Appellant, v. CITY OF BOERNE, TEXAS, Defendant-Appellee.

No. 95-50306.

United States Court of Appeals, Fifth Circuit.

Jan. 23, 1996.

Thomas Drought, Patricia Jean Schofield, Drought & Pipkin, San Antonio, TX, H. Douglas Laycock, Austin, TX, for plaintiff-appellant.

Lowell Frank Denton, William Michael McKamie, Denton, McKamie & Navarro, San Antonio, TX, Marci A. Hamilton, Benjamin N. Cardozo School of Law, Yardley, PA, Gordon L. Hollon, Boerne, TX, for defendant-appellee.

Michael Jay Singer, Patricia Ann Millett, U.S. Dept. of Justice, Civil Division, App. Staff, Washington, DC, for United States.

James C. Geoly, James A. Serritella, Kevin R. Gustafson, Lily Fu, Mayer, Brown & Platt, Chicago, IL, for Catholic Conference of Illinois, amicus curiae.

Gene C. Schaerr, Rex E. Lee, Nathan C. Sheers, Sidley & Austin, Washington, DC, for Orrin G. Hatch, Senator, amicus curiae.

John H. Beisner, Washington, DC, David Armour Doheny, Elizabeth Sherrill Merritt, Washington, DC, Peter C. Chocharis, O'Melveny & Myers, Washington, DC, Laura S. Nelson, National Trust for Historic Preservation, Washington, DC, for National Trust for Historic Preservation in the United States, amicus curiae.

Marc D. Stern, American Jewish Congress, New York City, for Coalition for the Free Exercise of Religion, amicus curiae.

Appeals from the United States District Court for the Western District of Texas.

Before HIGGINBOTHAM, EMILIO M. GARZA and BENAVIDES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

The City of Boerne, Texas, contends that Congress lacks the authority to enact the Religious Freedom Restoration Act of 1993, Pub.L. No. 103-141, 42 U.S.C. Sec. 2000bb et seq. The district court agreed. We are persuaded that the act is constitutional and reverse.

I.

The Saint Peter Catholic Church in Boerne, Texas, was built in 1923. In 1991, the Archbishop of San Antonio, Bishop Flores, authorized the parish to build a larger facility.

Some months later, the City of Boerne enacted Ordinance 91-05 in order to "protect, enhance and perpetuate selected historic landmarks" and to "safeguard the City's historic and cultural heritage." The Ordinance authorized the City's Historic Landmark Commission to prepare a preservation plan with proposed Historic Districts. The City Council adopted the Landmark Commission's proposal for designating a Historic District. Saint Peter was not designated as a historic landmark but at least part of the church was included within the District. According to Archbishop Flores, the Historic District included only its facade, but the City considered the entire structure to be within the District.

In 1993, the church applied for a building permit from the City to enlarge the church building, urging that its proposed addition did not affect the church's facade. The Landmark Commission denied the permit application, and the City Council, in turn, denied the church's appeal. The church filed this suit seeking a judicial declaration that the Ordinance was unconstitutional and violated the Religious Freedom Restoration Act, 42 U.S.C. Sec. 2000bb et seq., injunctive relief, and attorneys' fees.

The City's first mention of constitutionality came in a Proposed Joint Pre-trial Order asserting that "any interpretation or application of the Religious Freedom Restoration Act of 1993 which imposes a statutory revision in the applicable standards of First Amendment jurisprudence is not valid ... taking into account the operative provisions of Article III, the Free Exercise Clause of the First Amendment, Section 5 of the Fourteenth Amendment, and the Tenth Amendment." Over the church's objection, the district court granted the City leave to amend its answer to plead the unconstitutionality of RFRA as asserted in the pre-trial order.

The district court held that RFRA was facially invalid because it infringed on the authority of the judiciary "to say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). The district court reasoned that "Congress specifically sought to overturn Supreme Court precedent as found in Employment Division v. Smith through the passage of RFRA." It was also persuaded that Congress had not invoked its power under Section 5 of the Fourteenth Amendment in enacting RFRA. The district court certified its order for interlocutory appeal to this court pursuant to 28 U.S.C. Sec. 1292(b) and entered a partial final judgment under Fed.R.Civ.P. 54(b). The United States and the church appealed and petitioned for leave to appeal. We have jurisdiction.

II.

A.

Employment Division, Dep't of Human Resources v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), held that the First Amendment's Free Exercise Clause does not bar application of a facially neutral, generally applicable law to religiously motivated conduct. Id. at 881, 110 S.Ct. at 1601. Five months after Smith, Congress conducted its first hearing on a legislative response, the Religious Freedom Restoration Act of 1990. See, Hearing Before the Subcomm. on Civil and Constitution Rights of the House Comm. on the Judiciary, 101st Cong., 2d Sess. (1990) (hereinafter "1990 House Hearing"). The 101st Congress did not pass the bill, but it was reintroduced in the 102nd Congress, S. 2969, 102nd Cong., 1st Sess. (1991); H.R. 2797, 102nd Cong., 1st Sess. (1991), and again in the 103rd Congress. S. 578, 103rd Cong., 1st. Sess. (1993); H.R. 1308, 103rd Cong., 1st Sess. (1993).

B.

In enacting the Religious Freedom Restoration Act of 1993, Congress mandated that "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability" unless the Government demonstrates that application of the burden "(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. Sec. 2000bb-1(a), (b). RFRA applies both to Federal and State law, whether enacted before or after RFRA became effective. 42 U.S.C. Sec. 2000bb-3(a).

Congress found that "governments should not substantially burden religious exercise without compelling justification," and decried the Supreme Court's decision in Smith, asserting that it "virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion." 42 U.S.C. Sec. 2000bb(a). The Act's stated purpose was "to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened." 42 U.S.C. Sec. 2000bb(b)(1).

III.

A.

Congress considered its constitutional authority to enact legislation to overturn Smith. See 1990 House Hearing at 51 (statement of Rev. John H. Buchanan, Jr.). Scholars critical of Smith found in Section 5 of the Fourteenth Amendment authority to enact RFRA. See id. at 51, 54 (statement of Rev. John H. Buchanan, Jr.), 72-79 (letter from Douglas Laycock); Congressional Research Service, The Religious Freedom Restoration Act and The Religious Freedom Act: A Legal Analysis 30-31 (1992) (prepared by David Ackerman). Later hearings continued the study of Section 5 and the support it would offer to such legislation. See Religious Freedom Restoration Act of 1991: Hearings Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 102nd Cong., 2d Sess. 353-59 (1992) (statement of Douglas Laycock) (hereinafter "1992 House Hearings"); The Religious Freedom Restoration Act: Hearing Before the Senate Comm. on the Judiciary, 102nd Cong., 2d Sess. 92-97 (1992) (statement of Douglas Laycock) (hereinafter "1992 Senate Hearing").

Some thoughtful scholars questioned the authority of Congress under Section 5, at least as far as RFRA pushed it. See, e.g., 1992 House Hearings at 385-94 (statement of Ira Lupu); 1992 Senate Hearing at 122-25 (statement of Bruce Fein). Congress ultimately believed that Section 5 of the Fourteenth Amendment granted it sufficient authority to enact the bill:

Pursuant to Section 5 of the Fourteenth Amendment and the Necessary and Proper Clause embodied in Article I, Section 8 of the Constitution, the legislative branch has been given the authority to provide statutory protection for a constitutional value when the Supreme Court has been unwilling to assert its authority. The Supreme Court has repeatedly upheld such congressional action after declining to find a constitutional protection itself. However, limits to congressional authority do exist. Congress may not (1) create a statutory right prohibited by some other provision of the Constitution, (2) remove rights granted by the Constitution, or (3) create a right inconsistent with an objective of a constitutional provision. Because [RFRA] is well within these limits, the Committee believes that in passing the Religious Freedom Restoration Act, Congress appropriately creates a statutory right within the perimeters of its power.

H.R.Rep. No. 88, 103d Cong., 1st Sess. 9 (1993). The Senate report expressed similar views, noting that RFRA "falls squarely within Congress' section 5 enforcement power." S.Rep. 111, 103d Cong., 1st Sess. 14 (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1903.

When RFRA reached the Senate floor for debate, no Senator questioned Congress' power under Section 5. The Senators expressing a view on the issue were persuaded that Section 5 provided ample authority. See 139 Cong.Rec. S14469 (statement of Sen. Grassley); 139 Cong.Rec. S14470 (statement of Sen. Hatch).

B.

That the Executive and Legislative branches also have both the right and duty to interpret the constitution...