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  •   'Congress Does Not Enforce a . . . Right by Changing What the Right Is'

    Thursday, June 26, 1997; Page A14

    Following are excerpts from the majority opinion written by Justice Anthony M. Kennedy in Boerne v. Flores, in which the Supreme Court overturned a 1993 federal law aimed at curbing governmental interference in private spiritual lives:

    A decision by local zoning authorities to deny a church a building permit was challenged under the Religious Freedom Restoration Act of 1993 (RFRA). . . . The case calls into question the authority of Congress to enact RFRA. We conclude the statute exceeds Congress' power.

    Congress enacted RFRA in direct response to the Court's decision in Employment Div., Dept. of Human Resources of Ore. v. Smith. . . . We stated: "[G]overnment's ability to enforce generally applicable prohibitions of socially harmful conduct . . . cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development. To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is compelling . . . contradicts both constitutional tradition and common sense."

    These points of constitutional interpretation were debated by Members of Congress. . . . Many criticized the Court's reasoning, and this disagreement resulted in the passage of RFRA.

    RFRA prohibits "[g]overnment" from "substantially burden[ing]" a person's exercise of religion even if the burden results from a rule of general applicability unless the government can demonstrate the burden "(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest."

    Amendment Basis

    Congress relied on its Fourteenth Amendment enforcement power in enacting the most far reaching and substantial of RFRA's provisions, those which impose its requirements on the States. . . . The Fourteenth Amendment provides, in relevant part:

    "[Section 1]. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    "[Section 5]. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

    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 violation. . . . 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 . . . the distinction 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.

    Enforcement Clause

    The Enforcement Clause . . . did not authorize Congress to pass "general legislation upon the rights of the citizen, but corrective legislation; that is, such as may be necessary and proper for counteracting such laws as the States may adopt or enforce, and which, by the amendment, they are prohibited from making or enforcing."

    If Congress could define its own powers by altering the Fourteenth Amendment's meaning . . . shifting legislative majorities could change the Constitution and effectively circumvent the difficult and detailed amendment process.

    Respondent contends that RFRA . . . prevents and remedies laws which are enacted with the unconstitutional object of targeting religious beliefs and practices.

    While preventive rules are sometimes appropriate remedial measures, there must be a congruence between the means used and the ends to be achieved. . . . RFRA's legislative record lacks examples of modern instances of generally applicable laws passed because of religious bigotry. The history of persecution in this country detailed in the [congressional] hearings [on RFRA] mentions no episodes occurring in the past 40 years. . . . [T]he emphasis of the hearings was on laws of general applicability which place incidental burdens on religion.

    Serious Shortcoming

    This lack of support in the legislative record, however, is not RFRA's most serious shortcoming. . . . RFRA cannot be considered remedial, preventive legislation, if those terms are to have any meaning. RFRA is 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. It appears, instead, to attempt a substantive change in constitutional protections. Preventive measures prohibiting certain types of laws may be appropriate when there is reason to believe that many of the laws affected by the congressional enactment have a significant likelihood of being unconstitutional. . . . Sweeping coverage ensures its intrusion at every level of government. . . . RFRA's restrictions apply to every agency and official of the Federal, State, and local Governments. . . . This is a considerable congressional intrusion into the States' traditional prerogatives and general authority to regulate for the health and welfare of their citizens.

    State Laws at Issue

    Simply put, RFRA is not designed to identify and counteract state laws likely to be unconstitutional because of their treatment of religion. . . . [N]umerous state laws, such as the zoning regulations at issue here, impose a substantial burden on a large class of individuals. When the exercise of religion has been burdened in an incidental way by a law of general application, it does not follow that the persons affected have been burdened any more than other citizens, let alone burdened because of their religious beliefs.

    © Copyright 1997 The Washington Post Company

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