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The Nation's Premier Civil and Human Rights Coalition

Civil Rights Monitor

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The CIVIL RIGHTS MONITOR is a quarterly publication that reports on civil rights issues pending before the three branches of government. The Monitor also provides a historical context within which to assess current civil rights issues. Back issues of the Monitor are available through this site. Browse or search the archives

Volume 9 Numbers 2-3


On June 25, 1997, in a 6-3 decision, Boerne v. Flores, No. 95-2074, the Supreme Court ruled that Congress' enactment of the Religious Freedom Restoration Act exceeded its power under section 5 of the Fourteenth Amendment and found the Act uncons titutional.

The decision placed important limitations on the authority of Congress to use Section 5 of the 14th Amendment ("The Congress shall have power to enforce [the Amendment] by appropriate legislation...") to expand the definition of personal righ ts. Its exercise of such authority in the voting rights arena had been upheld by the Supreme Court in the 1960's.


On November 16, 1993, President Clinton signed into law the Religious Freedom Restoration Act to overturn the Supreme Court's decision in Employment Division of Oregon v. Smith in which the Court held that the state of Oregon was free "to i nclude religiously inspired peyote use within the reach of its general criminal prohibition on use of that drug, and thus permitted the State to deny unemployment benefits to persons dismissed from their jobs because of such religiously inspired use." ;

The First Amendment to the U.S. Constitution states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." This clause was applied to states through the Fourteenth Amendment.

In upholding the Oregon law, the majority in Smith opinion, written by Justice Scalia and joined by Chief Justice Rehnquist and Justices White, Stevens, and Kennedy found that:

"There being no contention that Oregon's drug law represents an attempt to regulate religious beliefs, the communication of religious beliefs, or the raising of one's children

in those beliefs, the rule to which we have adhered since Reynolds [an 1879 opinion] plainly controls."

Justice O'Connor while concurring in the judgment of the Court in Smith that the State should prevail over the two applicants here did not join in its opinion. She asserted that prior to this decision the legal standard the Court applied to tes t the constitutionality of a state statute challenged as in conflict with the free exercise of religion was whether the state statute was "justified by a compelling interest that cannot be served by less restrictive means." In the Smith decision, the majority held that this standard did not apply to state statutes that do not target religious practices but are generally applicable prohibitions, and that the "compelling interest test [is] inapplicable to challenges to general crimina l prohibitions."

Justices Blackmun, Brennan and Marshall agreed with much of Justice O'Connor's analysis but wrote a dissenting opinion in Smith. The dissenters wrote:

"This Court over the years painstakingly has developed a consistent and exacting standard to test the constitutionality of a state statute that burdens the free exercise of religion. Such a statute may stand only if the law in general, and the St ate's refusal to allow a religious exemption in particular, are justified by a compelling interest that cannot be served by less restrictive means.

"Until today, I thought this was a settled and inviolate principle of this Court's First Amendment jurisprudence. The majority, however, perfunctorily dismisses it as a 'constitutional anomaly'... As carefully detailed in Justice O'Connor's concu rring opinion...the majority is able to arrive at this view only by mischaracterizing this Court's precedents."

The New Federal Statute

The Religious Freedom Restoration Act, sponsored by Senators Edward M. Kennedy (D-MA) and Orrin Hatch (R-UT) and Representatives Charles E. Schumer (D-NY) and Christopher C. Cox (R-CA) was supported by a broad spectrum of conservative and liberal relig ious groups. It passed the Senate by a vote of 97 to 3, and the House by voice vote in 1993.

RFRA sought to undo Smith by placing a heavy burden on government to modify infringements on religious freedom even when they resulted from rules of general applicability.

"Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except if...the...Government demonstrates that application of the burden to the person -- is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest."

The Majority Opinion in Boerne v. Flores

This case involved a challenge by St. Peter's Catholic Church in San Antonio, Texas, to the city's refusal to grant the church a construction permit to expand its building because the construction would have been in violation of a zoning ordinance d esignating the area an historic district. The church asserted in Federal Court that the denial of the permit was in violation of the Religious Freedom Restoration Act. The District Court concluded that Congress had exceeded its enforcement powers under section 5 of the Fourteenth Amendment in enacting the RFRA. The Fifth Circuit reversed, finding the RFRA to be constitutional.

The question before the Supreme Court, according to the Kennedy opinion, was whether RFRA "is a proper exercise of Congress' section 5 power 'to enforce' by 'appropriate legislation' the constitutional guarantee that no State shall deprive any per son of 'life, liberty, or property, without due process of law' nor deny any person 'equal protection of the laws.'" The church and United States as amicus had asserted that RFRA was permissible enforcement legislation:

"...[T]he 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 section 5 includes the power to enact legislation designed to prev ent as well as remedy constitutional violations. It is further contended that Congress' section 5 power is not limited to remedial or preventive legislation."

The majority asserted that Congress' power under section 5 is limited to "enforcing the provisions of the Fourteenth Amendment" and states that such power is "remedial."

"The design of the Amendment and the text of section 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 violat ion. 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 Congress must have wide latitude in determining where it lies, the distin ction 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. H istory and our case law support drawing the distinction, one apparent from the text of the Amendment."

The majority reviewed the Fourteenth Amendment's legislative history and case law and contend that both confirm the remedial rather than substantive nature of the Enforcement Clause. The opinion seeks to distinguish the RFRA from the Voting Ri ghts Act as an answer to the respondents contention that "if Congress can prohibit laws with discriminatory effects in order to prevent racial discrimination in violation of the Equal Protection Clause...then it can do the same...to promote religious liberty." In distinguishing the two laws, the Boerne majority:

    • contrasts the extensive record of discrimination in voting at the time of enactment of the VRA with the RFRA's legislative history of religious persecution that mentioned "no episodes occurring in the past 40 years."
    • contrasts the reach and scope of RFRA, which applies "to all federal and state law, statutory or otherwise, whether adopted before or after its enactment [so that] any law is subject to challenge at any time by any individual who alleges a substa ntial burden on his or her free exercise of religion," with the VRA, which is limited to jurisdictions with a history of discrimination, limited to state voting laws, and includes a termination mechanism.

The majority opinion states that "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," and would &q uot;open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind....This is a considerable congressional intrusion into the States' traditional prerogatives and general authority to regulate f or the health and welfare of their citizens."

A five-Justice majority concluded:

"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....Congress' discretion is not unlimited, howe ver, 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, RF RA 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."

Justice Stevens wrote a brief concurring opinion in which he concluded that the RFRA violates the other religion provision of the First Amendment to the Constitution, namely the Establishment Clause:

"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 land mark 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 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..."


Justice O'Connor wrote a dissenting opinion in which she adhered to her view in Smith that that case was wrongly decided. She would have "direct[ed] the parties to brief the question whether Smith represents the correct understandin g of the Free Exercise Clause and set the case for reargument."

Justice O'Connor continued:

"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, s o long as the prohibition is generally applicable. Contrary 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.... 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, ge nerally 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 at religion or applied gene rally -- we required government to justify that law with a compelling state interest and to use means narrowly tailored to achieve that interest.... The Court's rejection of this principle in Smith is supported neither by precedent nor...by history . The decision has harmed religious liberty [citing lower court decisions since Smith]."

Justice O'Connor concluded:

"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 t olerated 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 witho ut 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. F or 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 that both should be treated with the highest degree of respect..."

Justice Breyer who joined Justice O'Connor's opinion in part wrote a brief dissent to state his agreement with Justice O'Connor that the Court should instruct the parties to brief the question of whether Smith was correctly decided, but said he did not find it necessary to consider, as Justice O'Connor had, assuming Smith was correctly decided, whether section 5 of the Fourteenth Amendment would authorize Congress to enact the RFRA. Justice Souter also wrote a brief dissent:

"...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 prese nted by Justice O'Connor's opinion...which raises very substantial issues about the soundness of the Smith rule....But without briefing and argument on the merits of that rule...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 law r emains marked by an "intolerable tension,...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 according ly dissent from the Court's disposition of this case."


As to the question of whether the Smith decision was properly decided: six Justices respond in the affirmative (Rehnquist, Stevens, Scalia, Kennedy, Thomas, and Ginsburg). Justice O'Connor says no, and Justices Breyer and Souter wanted to hear further argument.

On the issue whether Congress had the authority under section 5 of the Fourteenth Amendment to overturn Smith, all justices who addressed the issue (5) answered in the negative.

The Constitution Subcommittee of the House Judiciary Committee has held hearings on whether to push for legislation or a constitutional amendment to counter the Court decision striking down the RFRA. Religious leaders who testified at a hearing before the Subcommittee generally called for caution in pushing for a constitutional amendment and suggested that a more narrowly written law tied to Congress' authority to regulate interstate commerce and to control Federal spending could protect religious fre edom and pass constitutional muster. Some legal authorities, however, do not believe that the court has left much room for a legislative fix.

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