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The City of Boerne Case

§ 12.02.03
Key point 12-02.03. In the City of Boerne case (1997), the Supreme Court ruled that the Religious Freedom Restoration Act was unconstitutional. Other courts have limited this ruling to state and local legislation, and have concluded that the Act continues to apply to federal laws.

In the City of Boerne case, in 1997, the Supreme Court struck down the Religious Freedom Restoration Act on the ground that Congress exceeded its authority in enacting the law.[48] It is not clear whether the Supreme Court intended to invalidate the Act as applied to federal law, state law, or both. Some courts have concluded that the Supreme Court only intended to invalidate the Act as applied to state and local legislation, and that the Act still applies to federal legislation that burdens the exercise of religion. See, e.g., In re Young, 82 F.3d 1407 (8th Cir. 1996) (the Act prevented federal bankruptcy law from infringing upon the religious beliefs of church members). The Supreme Court will need to resolve this ambiguity. The Court's decision will impact virtually every religious organization in America. Some of those impacts are predictable, but others are not. This subsection reviews the facts of this important case, and the Court's conclusions.

Situated on a hill in the city of Boerne, Texas, some 28 miles northwest of San Antonio, is St. Peter Catholic Church. Built in 1923, the church's structure reflects the mission style of the region's earlier history. The church seats about 230 worshippers, a number too small for its growing parish. Some 40 to 60 parishioners cannot be accommodated at some Sunday services. In order to meet the needs of the congregation the Archbishop of San Antonio gave permission to the parish to plan alterations to enlarge the building.

A few months later, the Boerne City Council passed an ordinance authorizing the city's Historic Landmark Commission to prepare a preservation plan with proposed historic landmarks and districts. Under the ordinance, the Commission must pre-approve construction affecting historic landmarks or buildings in a historic district.

Soon afterwards the Archbishop applied for a building permit so construction to enlarge the church could proceed. City authorities, relying on the ordinance and the designation of a historic district (which, they claimed, included the church), denied the application. The Archbishop filed a lawsuit challenging the city's denial of the permit. The lawsuit relied upon RFRA as one basis for relief from the refusal to issue the permit. A federal district court concluded that by enacting RFRA Congress exceeded the scope of its authority. A federal appeals court reversed this decision, and upheld the constitutionality of RFRA. The city appealed to the United States Supreme Court. The appeal addressed the question of the constitutional validity of RFRA.

The Supreme Court ruled that RFRA was unconstitutional since Congress did not have the authority to enact it. The Court began its opinion by noting that the federal government "is one of enumerated powers." That is, each branch (legislative, executive, judicial) can only do those things specifically authorized by the Constitution. The First Amendment specifies that "Congress" cannot enact legislation "prohibiting the free exercise" of religion. Of course, "Congress" refers to the federal legislature, and so the First Amendment guaranty of religious freedom, as originally worded, was not a limitation on the power of state or local governments. In 1868, the Fourteenth Amendment to the Constitution was ratified, which prohibits any state from depriving "any person of life, liberty, or property without due process of law." Then, in 1940, the Supreme Court ruled that the "liberty" protected by the Fourteenth Amendment against state interference included the First Amendment guaranty of religious freedom. For the first time, this limitation upon the power of Congress to prohibit the free exercise of religion now applied to state and local governments as well. The Fourteenth Amendment contained a section (section 5) which gave Congress "power to enforce, by appropriate legislation, the provisions of this [amendment]." Congress pointed to this section as the source of its authority to enact RFRA. Members of Congress insisted that they were only protecting by legislation one of the liberties guaranteed by the Fourteenth Amendment that had been diminished by the Supreme Court's ruling in Smith.

The Supreme Court ruled that section 5 of the Fourteenth Amendment did not authorize Congress to enact RFRA. It acknowledged that section 5 authorizes Congress to "enforce" the Fourteenth Amendment, and therefore Congress can enact legislation "enforcing the constitutional right to the free exercise of religion." However, the Court then observed:

Congress' power under section 5, however, extends only to enforcing the provisions of the Fourteenth Amendment. … 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 [of religion] 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]. …"
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." It would be "on a level with ordinary legislative acts, and, like other acts … alterable when the legislature shall please to alter it." Under this approach, it is difficult to conceive of a principle that would limit congressional power. Shifting legislative majorities could change the Constitution and effectively circumvent the difficult and detailed amendment process contained [therein].

The Court conceded that it is not always clear whether Congress is "enforcing" the Fourteenth Amendment or making unauthorized substantive changes in the Constitution. However, it insisted that there must be a "proportionality between the injury to be prevented or remedied and the means adopted to that end." The Court concluded that this test was not met in this case, since RFRA was not a "proportional" response to the "injury to be prevented or remedied." Rather, RFRA was an expansive law that was enacted to address minimal threats to religious freedom. The Court noted that

sweeping coverage ensures [RFRA's] intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter. RFRA's restrictions apply to every agency and official of the federal, state, and local governments. RFRA applies to all federal and state law, statutory or otherwise, whether adopted before or after its enactment. RFRA has no termination date or termination mechanism. Any law is subject to challenge at any time by any individual who alleges a substantial burden on his or her free exercise of religion.
Further, this massive response was not warranted by any significant threat to religious freedom:
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 mentions no episodes occurring in the past 40 years. … The absence of more recent episodes stems from the fact that, as one witness testified, "deliberate persecution is not the usual problem in this country." Rather, the emphasis of the [congressional] hearings was on laws of general applicability which place incidental burdens on religion. Much of the discussion centered upon anecdotal evidence of autopsies performed on Jewish individuals and Hmong immigrants in violation of their religious beliefs … and on zoning regulations and historic preservation laws (like the one at issue here), which as an incident of their normal operation, have adverse effects on churches and synagogues. … It is difficult to maintain that they are examples of legislation enacted or enforced due to animus or hostility to the burdened religious practices or that they indicate some widespread pattern of religious discrimination in this country. Congress' concern was with the incidental burdens imposed, not the object or purpose of the legislation.
The stringent test RFRA demands of state laws reflects a lack of proportionality or congruence between the means adopted and the legitimate end to be achieved. If an objector can show a substantial burden on his free exercise, the State must demonstrate a compelling governmental interest and show that the law is the least restrictive means of furthering its interest. Claims that a law substantially burdens someone's exercise of religion will often be difficult to contest. Requiring a state to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law. If "compelling interest" really means what it says … many laws will not meet the test. … [The test] would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind." Laws valid under Smith would fall under RFRA without regard to whether they had the object of stifling or punishing free exercise. … [RFRA] would require searching judicial scrutiny of state law with the attendant likelihood of invalidation. This is a considerable congressional intrusion into the states' traditional prerogatives and general authority to regulate for the health and welfare of their citizens.
The substantial costs RFRA exacts, both in practical terms of imposing a heavy litigation burden on the states and in terms of curtailing their traditional general regulatory power, far exceed any pattern or practice of unconstitutional conduct under the free exercise clause as interpreted in Smith. Simply put, RFRA is not designed to identify and counteract state laws likely to be unconstitutional because of their treatment of religion. In most cases, the state laws to which RFRA applies are not ones which will have been motivated by religious bigotry. …
It is a reality of the modern regulatory state that numerous 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. (emphasis added)
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