Facts—After the Supreme Court’s decision in Employment Division v. Smith, 494 U.S. 872 (1990), Congress held hearings and adopted the Religious Freedom Restoration Act of 1995 (RFRA). The law mandated that governments should not adopt laws of general applicability that substantially burden individual religious freedoms unless they could show that such laws furthered “a compelling governmental interest” and were “the least restrictive means of furthering that compelling governmental interest.” In the case at hand, the City Council of Boerne, Texas, attempted to limit the expansion of a Catholic Church in a historic district under its historic landmarks ordinance. The local archbishop claimed protection under RFRA.
The U.S. District Court argued that the RFRA exceeded congressional powers, but the Fifth Circuit Court upheld the law’s constitutionality.
Question—Are the provisions of the Religious Freedom Restoration Act of 1995 a proper exercise of congressional authority under Section 5 of the Fourteenth Amendment to enforce its provisions?
Decision—No, the law is not an attempt to “enforce” the amendment but to interpret and redefine its terms.
Reasons—J. Kennedy (6–3). Kennedy noted that in Employment Division v. Smith (1990), the Court had abandoned the balancing test it had established in Sherbert v. Verner (1963), deciding in Smith that, when states adopted laws of general applicability, lawmakers did not need to show that they met a “compelling state interest.” RFRA had attempted to overturn this decision. The national government is one of “enumerated powers.” Although Section 5 of the Fourteenth Amendment is a positive grant of power to Congress, this power is not unlimited. The power is a “remedial” power, extending “only to ‘enforcing’ the provisions of the Fourteenth Amendment.” The means that Congress adopts to enforce the amendment must show “a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” When Congress debated the Fourteenth Amendment, it modified its language to give itself “remedial” rather than “substantive” powers. “The power to interpret the Constitution in a case or controversy remains in the Judiciary.” The best interpretation of cases such as Katzenbach v. Morgan (1966) is that Congress can fully enforce, but cannot expand existing constitutional powers. If it were permitted to do so, the Constitution would cease to be paramount law and “Shifting legislative majorities could change the Constitution and effectively circumvent the difficult and detailed amendment process.” In judging the constitutionality of congressional enforcement efforts, the Court examines the “congruence” and the “proportionality” of its legislation. In adopting the RFRA, the Congress rested chiefly upon anecdotal evidence to require states to adopt a heavy burden that imposes “substantial costs.” In so doing, Congress exceeded its enforcement powers.
J. Stevens’s concurrence stressed that the RFRA gave an undue preference to religion, which was forbidden by the First Amendment. J. Scalia’s concurrence attempted to refute historical evidence that the dissenters had cited to prove that the First Amendment was initially understood to require exemptions of religious individuals from laws of general applicability that were not specifically aimed at them. J. O’Connor’s dissent focused on what she considered to be the Court’s earlier misstep in the Smith case (abandoning the “compelling state interest test”), which she thought was inconsistent with history and judicial precedent and which she believed further undermined the protection of religious liberty. J. Souter’s dissent also raised questions about the Smith case and argued that a decision should await resolution of the historical questions raised there. J. Breyer’s dissent also questioned whether Smith was correctly decided and would set that case for reargument.