City of Boerne v. Flores, 521 U.S. 507, was a Supreme Court case concerning the scope
of Congress's enforcement power under the fifth section of the Fourteenth Amendment.
The case also had a significant impact on historic preservation.
Facts The basis for dispute arose when the Catholic
Archbishop of San Antonio, Patrick Flores, applied for a building permit to enlarge his
1923 mission-style St. Peter's Church in Boerne, Texas. The building was located in a historic
district and considered a contributing property. Local zoning authorities denied the permit,
citing an ordinance governing additions and new construction in a historic district. The
Archbishop brought suit, challenging the ruling under the Religious Freedom Restoration Act
of 1993. Flores argued that his congregation had outgrown the existing structure, rendering
the ruling a substantial burden on the free exercise of religion without a compelling
state interest. Religious Freedom Restoration Act
RFRA had been crafted as a direct response to the Supreme Court's decision in Employment
Division v. Smith, 494 U.S. 872, wherein the Court had upheld—against a First Amendment
challenge—an Oregon law criminalizing peyote use, which was used in Native American religious
rituals. The State of Oregon won on the basis that the drug laws were "non-discriminatory
laws of general applicability." Religious groups became concerned that this case would
be cited as precedent for further regulation of common religious practices, and lobbied
Congress for legislative protection. RFRA provided a strict scrutiny standard, requiring
narrowly tailored regulation serving a compelling government interest in any case substantially
burdening the free exercise of religion, regardless of the intent and general applicability of
the law. The RFRA applies to all laws passed by Congress
prior to its enactment and to all future laws that are not explicitly exempted.(42 U.S.
Code § 2000bb–3) Congress' power to do so was not challenged here. Congress also
applied the law to state and local governments, the City of Boerne in this case, relying on
the Fourteenth Amendment, in particular Section 5, which says "The Congress shall have power
to enforce, by appropriate legislation, the provisions of this article."
Result District Court
The City of Boerne was successful at the United States District Court for the Western District
of Texas; the judge struck down the RFRA as unconstitutional. Flores appealed to the United
States Court of Appeals for the Fifth Circuit, which found the RFRA constitutional and reversed
the District Court's decision. Boerne filed a certiorari petition to the Supreme Court.
The National Trust for Historic Preservation, among other preservation organizations, filed
briefs in support of Boerne. Supreme Court
The Court, in an opinion by Justice Anthony Kennedy, struck down RFRA as it applies to
the states as an unconstitutional use of Congress's enforcement powers. The Court held that it
holds the sole power to define the substantive rights guaranteed by the Fourteenth Amendment—a
definition to which Congress may not add and from which it may not subtract. Congress could
not constitutionally enact RFRA because the law was not designed to have "congruence and
proportionality" with the substantive rights that the Court had defined. Although Congress
could enact "remedial" or "prophylactic" legislation to guarantee rights not exactly congruent
with those defined by the Court, it could only do so in order to more effectively prevent,
deter, or correct violations of those rights actually guaranteed by the Court. RFRA was
seen disproportionate in its effects compared to its objective. Justice Kennedy wrote:
Congress' power under § 5, however, extends only to "enforc[ing]" the provisions of the
Fourteenth Amendment. The Court has described this power as "remedial." The design of the
Amendment and the text of § 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
violation. Were it not so, what Congress would be enforcing would no longer be, in any meaningful
sense, the "provisions of [the Fourteenth Amendment]."
Moreover, remedial or prophylactic legislation still had to show "congruence and proportionality"
between the end it aimed to reach, and the means it chose to reach those ends—that
is, the penalties or prohibitions it enacted to prevent or correct those violations. Because
RFRA was not reasonably remedial or prophylactic, it was unconstitutional.
Implications Congruence and proportionality
Boerne is important for several reasons. One reason is that it introduced a completely
new test for deciding whether Congress had exceeded its section-five powers: the "congruence
and proportionality" test, a test that has proven to have great importance in the context
of the Eleventh Amendment. Another reason was that it explicitly declared that the Court
alone has the ability to state which rights are protected by the Fourteenth Amendment.
Yet another was that it had First Amendment consequences too, in that it spelled the end
for any legislative attempts to overturn Employment Division v. Smith.
The "congruence and proportionality" requirement replaced the previous theory advanced in Katzenbach
v. Morgan that the Equal Protection Clause is "a positive grant of legislative power
authorizing Congress to exercise its discretion in determining the need for and nature of
legislation to secure Fourteenth Amendment guarantees." Before the 1997 Boerne decision,
Katzenbach v. Morgan was often interpreted as allowing Congress to go beyond, but not
fall short of, the Court's interpretation of the Equal Protection Clause. But that is
not how the majority opinion in Boerne interpreted Katzenbach:
There is language in our opinion in Katzenbach v. Morgan, 384 U.S. 641, which could be interpreted
as acknowledging a power in Congress to enact legislation that expands the rights contained
in § 1 of the Fourteenth Amendment. This is not a necessary interpretation, however,
or even the best one.... If Congress could define its own powers by altering the Fourteenth
Amendment's meaning, no longer would the Constitution be "superior paramount law, unchangeable by
ordinary means."
The holding of Boerne said that only the Court could interpret the Constitution, in order
to maintain the "traditional separation of powers between Congress and the Judiciary."
Also, Boerne relied on arguments for protecting the rights that pertain to state governments
based on "enumerated powers." The intent of Boerne was to prevent "a considerable congressional
intrusion into the States' traditional prerogatives and general authority." The holding of Boerne
specifically mentioned the state action doctrine of the Civil Rights Cases as a Court interpretation
of the Equal Protection Clause that limits the "remedial or preventive" power of Congress.
Historic preservation The Supreme Court's decision in City of Boerne
made a significant impact on the states' authority to enact and enforce laws, including those
pertaining to historic preservation. Under RFRA, an otherwise neutral state law—such
as zoning, or historic preservation ordinances—needed to be scrutinized if its enforcement involved
a religious group or individual. Therefore, by declaring RFRA unconstitutional, the ability
of the states to establish and maintain historic preservation ordinances was made easier. However,
in 2000, Congress enacted the Religious Land Use and Institutionalized Persons Act, in
which it used the Spending Clause to require, for localities that receive federal funding,
land use laws to accommodate religious freedom, essentially, as if RFRA had been constitutional.
Federal law The validity of the RFRA as applied to federal
law was not at issue in this case. The RFRA was later upheld for federal law in Gonzales
v. O Centro Espirita Beneficente Uniao do Vegetal.
See also List of United States Supreme Court cases,
volume 521 List of United States Supreme Court cases
Lists of United States Supreme Court cases by volume
References
Further reading Alley, Robert S.. The Constitution & Religion:
Leading Supreme Court Cases on Church and State. Amherst, NY: Prometheus Books.
pp. 515–535. ISBN 1-57392-703-1. External links
Text of City of Boerne v. Flores, 521 U.S. 507 is available from: Findlaw Justia LII