City of Boerne v. Flores
Did Congress exceed its enforcement power under Section 5 of the Fourteenth Amendment when it enacted the Religious Freedom Restoration Act (RFRA), which imposed strict scrutiny on all government actions that substantially burden religious exercise?
The Decision
6-3 decision · Opinion by Anthony M. Kennedy · 1997
Majority Opinion— Anthony M. Kennedyconcurring ↓dissent ↓
In a 6–3 decision authored by Justice Anthony M. Kennedy, the Supreme Court struck down RFRA as it applied to state and local governments, holding that Congress had exceeded its enforcement power under Section 5 of the Fourteenth Amendment. The Court ruled that while Section 5 grants Congress the authority to pass legislation enforcing the guarantees of the Fourteenth Amendment, that power is fundamentally remedial in nature — it allows Congress to prevent or remedy violations of rights recognized by the courts, but it does not allow Congress to change what those rights actually mean.
The majority established what has come to be known as the 'congruence and proportionality' test: legislation enacted under Section 5 must be congruent with and proportional to the constitutional injuries it seeks to address. In other words, there must be a reasonable fit between the constitutional problem Congress identified and the legislative solution it crafted. Congress cannot simply decree a new standard of constitutional protection and impose it on every government in the country.
Applying this test to RFRA, the Court found that the law failed badly. RFRA was not a measured response to a documented pattern of religious persecution. Instead, it imposed the most demanding standard of judicial review — strict scrutiny — on virtually every government action in the nation, regardless of whether there was any evidence of intentional discrimination against religion. The law had no termination date, no geographic limitations, and no connection to specific instances of unconstitutional conduct. The Court emphasized that RFRA's sweeping scope was '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.'
Justice Kennedy's opinion also rested on important separation-of-powers principles. The majority stressed that the power to interpret the Constitution belongs to the judiciary, and that if Congress could use Section 5 to effectively overrule the Court's interpretations of constitutional provisions, it would fundamentally alter the balance of power among the branches of government. The Court distinguished RFRA from the Voting Rights Act, which it held up as an example of valid Section 5 legislation because the VRA was closely tied to documented, widespread patterns of racial discrimination and included built-in limitations. RFRA, by contrast, was an attempt to change constitutional law through ordinary legislation.
Concurring Opinions
Justice John Paul Stevens wrote a concurrence arguing that RFRA violated the Establishment Clause of the First Amendment because it provided a special governmental preference for religion over non-religion. Justice Antonin Scalia also wrote a concurrence, joined by Justice Stevens, directly responding to Justice O'Connor's historical arguments, defending the Smith decision as correct and arguing that the historical record did not support the application of strict scrutiny to neutral, generally applicable laws burdening religious exercise.
Dissenting Opinions
Sandra Day O'Connorjoined by Stephen G. Breyer
Justice O'Connor argued that the Court should reconsider its earlier decision in Employment Division v. Smith, which she believed was wrongly decided. She contended that the historical record supported a more robust interpretation of the Free Exercise Clause — one that would require the government to justify substantial burdens on religious practice — making RFRA consistent with, rather than an expansion of, the Constitution's original meaning.
- The historical understanding of free exercise of religion, dating back to the founding era, supported applying a compelling interest test to laws that substantially burden religious practice, and Smith departed from this long tradition without adequate justification.
- If Smith were overruled and the Free Exercise Clause were properly interpreted to require strict scrutiny of burdens on religion, RFRA would be entirely consistent with Congress's enforcement power because it would merely be codifying the correct constitutional standard rather than creating a new one.
- The Court's approach in Smith left religious minorities particularly vulnerable because democratic majorities are unlikely to be sensitive to the impact of neutral laws on minority faiths.
David H. Souter
Justice Souter wrote a brief separate dissent arguing that the Court should not decide the case until it had reconsidered the validity of Employment Division v. Smith. He believed the constitutional question about RFRA's validity depended entirely on whether Smith was correctly decided, and the Court should have ordered reargument on that threshold issue.
- The constitutionality of RFRA was directly tied to the scope of the Free Exercise Clause, and the Court should not have resolved RFRA's validity without first reexamining the Smith decision that prompted it.
- There were serious historical and doctrinal reasons to doubt that Smith correctly interpreted the Free Exercise Clause.
Stephen G. Breyer
Justice Breyer wrote a brief separate dissent agreeing with much of Justice O'Connor's analysis regarding the need to reconsider Smith. He indicated that the question of Smith's correctness was essential to resolving the case, though he expressly declined to take a position on whether RFRA would violate the Establishment Clause.
- The Smith decision should be reconsidered because of the historical and constitutional arguments presented in O'Connor's dissent.
- He joined O'Connor's dissent except for the portion discussing whether RFRA might raise Establishment Clause concerns, preferring to leave that question open.
Background & Facts
In the early 1990s, Congress passed the Religious Freedom Restoration Act (RFRA) in response to widespread concern about a 1990 Supreme Court decision — Employment Division v. Smith — that had dramatically narrowed protections for religious exercise. In Smith, the Court held that neutral, generally applicable laws that happen to burden religion do not violate the First Amendment's Free Exercise Clause, even if they impose significant hardships on religious practice. RFRA was designed to override that decision by requiring all levels of government — federal, state, and local — to demonstrate a 'compelling governmental interest' and use the 'least restrictive means' before enforcing any law that substantially burdened a person's religious exercise. The law passed with near-unanimous support in Congress.
The dispute that brought RFRA before the Supreme Court arose in Boerne, Texas, a small city northwest of San Antonio. Archbishop Patrick F. Flores of the Catholic Archdiocese of San Antonio sought a building permit to expand St. Peter Catholic Church, a modest stone structure built in 1923 that had become too small for its growing congregation. However, the city of Boerne had recently enacted a historic preservation ordinance, and the church fell within a designated historic district. City authorities denied the building permit on the grounds that the proposed expansion would alter the historic character of the area.
Archbishop Flores sued the city in federal court, arguing that denying the permit violated RFRA because it substantially burdened the parish's religious exercise without serving a compelling government interest. The city fought back by challenging the constitutionality of RFRA itself, arguing that Congress lacked the power to impose such sweeping requirements on state and local governments. The federal district court agreed with the city and struck down RFRA as unconstitutional. The Fifth Circuit Court of Appeals reversed, finding RFRA valid. Because the case raised fundamental questions about the scope of congressional power and its relationship to the Supreme Court's authority to interpret the Constitution, the Supreme Court agreed to hear the case.
The stakes were enormous. RFRA was one of the most popular pieces of legislation Congress had ever passed, supported by an extraordinarily broad coalition of religious and civil liberties groups spanning the political spectrum. Yet the case forced the Court to confront a deep structural question: Can Congress use its power to 'enforce' the Fourteenth Amendment to effectively change the meaning of constitutional rights that the Supreme Court itself had defined?
The Arguments
The city argued that RFRA was unconstitutional because Congress overstepped its authority under Section 5 of the Fourteenth Amendment. Rather than simply enforcing the rights recognized by the Court, Congress attempted to redefine the substantive meaning of the Free Exercise Clause, which only the Supreme Court has the power to do.
- Section 5 of the Fourteenth Amendment gives Congress the power to 'enforce' constitutional rights through appropriate legislation, but this is a remedial power — it does not authorize Congress to define new rights or expand existing ones beyond what the Court has recognized.
- RFRA was not a targeted response to documented patterns of religious discrimination; instead, it imposed a sweeping, one-size-fits-all standard on every law at every level of government across the entire country, with no geographic or temporal limits.
- If Congress could use Section 5 to override the Court's interpretation of constitutional rights, it would upset the fundamental separation of powers and undermine the judiciary's role as the final interpreter of the Constitution.
Archbishop Flores argued that RFRA was a valid exercise of Congress's enforcement power under Section 5 of the Fourteenth Amendment, because Congress was acting to protect religious liberty from government overreach — a legitimate remedial and preventive purpose well within its constitutional authority.
- Congress has broad discretion under Section 5 to choose the means of enforcing Fourteenth Amendment rights, and it compiled extensive testimony and evidence showing that religious practices across the nation were being burdened by neutral laws.
- The Supreme Court itself had historically recognized that Congress's enforcement power includes the ability to enact prophylactic or preventive measures — laws that go beyond what the courts have found to be actual constitutional violations — in order to deter future violations.
- RFRA did not change the meaning of the Constitution; it simply provided a statutory protection for religious exercise that was consistent with how courts had interpreted the Free Exercise Clause for decades before the Smith decision.