City of Boerne v. Flores - Opinion Announcement

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 95-2074, City of Boerne versus Flores will be announced by Justice Kennedy.

Argument of Justice Kennedy

Mr. Kennedy: The Saint Peter Catholic Church in Boerne, Texas was built in 1923 and it is said that replicate the mission style of that region’s earlier history that actually proved to be a problem for the Church.

The Archbishop had given approval for a remodeling plan with cause alterations to the structure to increase the size of the Church.

Because of the niche in style the Church was said by local authorities to be subject to the restrictions of a historic preservation zone, so the building permit was denied.

Now, the church, through the Archbishop, challenged the denial in Federal District Court.

The complaint contained various claims but to this point, the litigation has sent it on the constitutionality of the Religious Freedom Restoration Act of 1993.

The Act is abbreviated RFRA and then you supply a vowel to pronounce it RFRA.

The Church claims that because of the protection afforded to it by RFRA is exempt from the zoning restrictions.

The District Court found RFRA unconstitutional.

The Court of Appeals for the Fifth Circuit reversed, and we now reverse the Court of Appeals.

Congress enacted RFRA in direct response to our decision in Employment Division versus Smith.

In Smith we held that a neutral generally applicable law consistent with the Free Exercise Clause need not be justified by a compelling governmental interest.

Even if it is substantially burden the religious practice.

RFRA thought to alter that rule.

RFRA requires that all laws whether federal or state must be justified by a compelling governmental interest and employ the least restrictive means of furthering that interest whenever it substantially burdens a religious practice.

Our Federal Government is one of the enumerated powers.

Congress relied on its Fourteenth Amendment enforcement power in enacting the most far reaching and substantial of RFRA's provisions of which impose its requirements from states and local government.

The question posed by this case is whether RFRA enforces the Free Exercise Clause as interpreted by Smith.

Congress’ power under Section 5 extends only to enforcing the Fourteenth Amendment.

Legislation which deters or remedies its constitutional violations can fall within the suite of Congress’ enforcement power.

However, Congress does not have the power to decree the substance of the Fourteenth Amendment’s restrictions on the states.

While the line between measures that remedy and prevent unconstitutional actions, and measures that make substantive change in the governing law is not easy to determine, and Congress must have a wide latitude in determining where it lies.

The distinction exists and it must be observed.

It must be congruent in proportionality between the injury to be prevented or remedied in the means adopted to that end.

The Fourteenth Amendment’s history and our case will confirm the remedial rather than substantive nature of the Enforcement Clause.

RFRA is not a proper exercise of Congress’ remedial or preventive power.

In this regard, a comparison between RFRA and the Voting Rights Act is instrictive.

In contrast to the record which confronted Congress and the judiciary in the Voting Rights cases, RFRA’s legislative record lacks examples of modern infrences of generally applicable laws passed because of religious bigotry.

Moreover, RFRA’s coverage is sweeping.

It applies to every level of government and to all rules regardless of subject matter.

Its least restrictive means compelling governmental interest test is the most demanding known to the constitutional law.

This is a considerable congressional intrusion into the states' traditional prerogative and general authority to regulate for the health and welfare of their citizens.

The substantial cause RFRA exacts far exceed any pattern or practice of unconstitutional conduct under the Free Exercise Clause of as interpreted in Smith.

When Congress acts within its fair power and responsibility, it has not just the right but the duty to make its own informed judgment on the meaning and force of the Constitution.

On the other hand, 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.

When the political branches of the government act against a background of a judicial interpretation of the constitutional 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.

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 president and not RFRA which must control.

Justice Stevens has filed a concurring opinion; Justice Scalia has filed an opinion concurring in part joined by Justice Stevens; Justice O’Connor has filed a dissenting opinion joined in part by Justice Breyer; Justices Souter and Breyer have filed dissenting opinion.

Argument of Justice O’connor

Mr. O’connor: I would agree with the Court in its opinion in this case today if I thought the Court’s decision seven years ago in Employment Division versus Smith, set forth the proper standard under the First Amendment, but I do not, and as a result, I dissent from the Court’s disposition of this case.

In order to accept the Court’s conclusion that the Religious Freedom Restoration Act is unconstitutional, one must first accept the Court’s current interpretation of the Free Exercise Clause we could set forth in Smith.

It was the court’s decision in that case that prompted Congress to enact the Religious Freedom Restoration Act.

In my view, Smith does not reflect the correct understanding of the federal Free Exercise Clause.

The court’s holding in that case has harmed religious liberty in our nation.

I would direct the parties in this case to address the scope of the First Amendment's guarantee a religious free exercise and set the case for the argument next term.

Our citizens hold many different religious beliefs and subscribed to a variety of faith.

Governmental regulation in our society today is pervasive.

Given these characteristics of religious pluralism and extensive government regulation, there are times when a person’s religiously motivated conduct conflicts with a generally applicable secular law.

In Smith, this Court without actual briefing our argument on the issue, held that government need not justify the burdens it places on religious practice.

No matter how extensive, so long as the law imposes such burdens in a generally applicable law.

In adopting this rule, the court abandoned the approach it had taken to free exercise claims for some decades.

Before Smith, this Court had interpreted the Free Exercise Clause in a number of cases to require the government to justify any substantial burden it placed on religious free exercise with a compelling state interest and a showing that the burden was the most narrowly tailored means of achieving that interest.

I continued to believe that this compelling interest approach to free exercise claims more faithfully serves the intentions of the framers of the federal Free Exercise Clause.

I would therefore return to such a rule.

In my dissenting opinion filed today, I examined the early American tradition of religious free exercise to gain insight into the original understanding of that clause.

The historical record reveals that its drafters and ratifiers viewed the Free Exercise Clause as a guarantee that government may not unnecessarily hinder believers from freely practicing their religions.

For example, nearly all the constitutions that the early states which were adopted at roughly the same time as the federal Bill of Rights, guaranteed free exercise of religion limited by particular defined state interest.

In the days before the Constitution was ratified when religious practice conflicted with the generally applicable law, state legislatures frequently exempted believers from the requirements of such laws including, for example, requirements of taking an oath, military conscription, and religious assessments.

The framers of the federal Free Exercise Clause drafted and ratified the clause against that historical backdrop.

They conceived that the nation recepted to voluntary religious expression, not of a secular society in which religious excretion is tolerated only when it does not conflict with a generally applicable law.

The rule the court adopted in Smith provides a bright line that is more easily applied but it is not faithful, I think, to the First Amendment.

I believe that it is important that this court reconsider its holding in Smith.

I would do so in this very case.

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 would allay the legitimate concerns of a majority in Congress who believed that Smith improperly restricted religious liberty.

We would then be able to review the constitutionality of the Act in light of a proper interpretation of the Free Exercise Clause.

I therefore dissent from the Court’s disposition.