City of Boerne v. Flores

At issue in City of Boerne v. Flores (1997) was the constitutionality of the Religious Freedom Restoration Act (RFRA), which was passed by Congress in 1993. Congress had passed the act in response to an earlier Supreme Court decision rejecting state employees’ appeal of their dismissal for smoking a controlled substance as part of their religious practice. In Flores, the Court found that this legislation, according to which the government had to demonstrate a compelling reason to interfere with religious practice, could be applied to federal actions but not to the states. Flores raised the question of whether receiving federal funds may trigger the protections of the RFRA in disputes involving school districts.

Facts of the Case

The city of Boerne adopted an ordinance designed to preserve its historic district. The congregation of the local Catholic church, a traditional adobe-style building, had outgrown the facilities. When the archbishop applied for a permit to enlarge the church, the city council denied the permit. The archbishop filed suit in a federal trial court in Texas, claiming that the denial of the permit violated the RFRA.

The RFRA was passed in reaction to the Supreme Court’s decision in Employment Division, Department of Human Resources of Oregon v. Smith (1990). In that case, members of the Native American Church had been fired and subsequently denied employment benefits because they ingested peyote for sacramental purposes. The Court opted not to apply a test that required that the practice of the government had to substantially burden a person’s religious practice. Rather, the Court applied a lesser standard and ruled against the employees. The employees were disciplined for breaking the rules of the employer against the use of alcohol and other drugs. The Court explained that laws that are officially neutral with respect to religion may be applied by the government. Under Smith, a compelling, substantial reason is not required before the government places a burden on a person’s religious practices.

Congress then passed the RFRA, which required that the state must have a compelling interest before it could burden a person’s religious practice. Congress believed that even neutral laws could place a burden on a person’s religious practices. According to the law, when the government applies a rule with general applicability, it must also show that it used the least restrictive means to advance the compelling interest. Congress based the RFRA on the Fourteenth Amendment to the Constitution, which made the Bill of Rights (the first ten amendments), applicable to the states. Congress believed that Section 5 of the Fourteenth Amendment gave it the power to enforce the provisions of the Fourteenth Amendment. The amendment requires due process before depriving any person of life, liberty, or property, and equal protection under the law.

In Flores, the trial court held that the RFRA was unconstitutional, but the Fifth Circuit reversed in finding it constitutional. On further review, the U.S. Supreme Court held that the RFRA was unconstitutional as applied to the states.

The Court’s Ruling

The Court held that Congress does not have unfettered discretion to enact laws under Section 5 of the Fourteenth Amendment. Congress has the power only to enforce the provisions, the Court decided, but may not change the right that it is enforcing. In effect, Congress has remedial power to prevent abuses under the Fourteenth Amendment.

Following its customary practice in such cases, the Court reviewed the legislative history of the RFRA, which was clearly amended during debate to give Congress the power to remedy specific abuses. Congress does not have the power to substantively change law, the Court ruled; therefore, it cannot apply the RFRA to the states.

The voting rights cases of the 19th century supported the Court’s conclusions. In the Voting Rights Act, Congress adopted a law to correct the abuses of a citizen’s right to vote. The Court explained that in the earlier cases, Congress had the right to enact strong “remedial and preventive measures” to correct the wrongs emerging from a history of racial discrimination in the United States. The Court reasoned that if Congress were to have the right to change the meaning of the Fourteenth Amendment, it would, in effect, have the power to rewrite the Constitution.

Turning again to the situation in Flores, the Court asked whether the RFRA met the constitutional requirements for enforcing the Fourteenth Amendment: Any remedial measures must be tailored to address the wrongs that exist. The Court found that the RFRA sweeps too broadly and would lead to intrusion at every level of government. The Court wondered how it would determine whether governmental action substantially burdened a person’s religious freedom. Laws of general applicability, the Court maintained, do not unduly burden the religious freedom of the members of the Native American Church. The Court concluded that RFRA actually violates the principles that are needed to assure that the powers of the branches of the federal government are separated.

Justice Sandra Day O’Connor wrote a spirited dissenting opinion. She argued that the Court needed to reconsider its opinion in Smith. Her lengthy review of the history of the religion clauses of the First Amendment led her to conclude the First Amendment guarantees citizens the right not to have their religious practices burdened by the government.

After Smith, the Court decided Gonzales v. Centro Espirita Beneficiente Unaio do Vegetal, a case involving the American branch of a Brazilian spiritist sect. The members of the sect imported into the United States and used hoasca, a tea that contained a controlled substance in violation of the Controlled Substances Act. The church sought relief under RFRA. Justice Roberts delivered the opinion of the Court in an 8-to-0 decision in which Justice Scalia did not participate. The Court upheld the right of the church members not to have undue burdens placed on the free exercise of their religion under RFRA. In a footnote, the Court made it clear that Flores meant that the RFRA did not apply to the states. It only applies to actions by the federal government.

While persons cannot use the RFRA to insulate religious practices from the authority of the states, the legislation does apply to actions by the federal government. Thus, Gonzales should alert educators in school systems that are supported by federal funds to the fact that the Court will look seriously at policies and procedures that unduly burden the free exercise of religion.

J. Patrick Mahon

See also Prayer in Public Schools; Religious Activities in Public Schools

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