City of Boerne v. Flores, 521 U.S. 507 (1997) (The Religious Freedom Restoration Act
of 1993 was held unconstitutional on the grounds that the law went beyond Congress’ authority
to enforce the Fourteenth Amendment, which is remedial only.)
Summary prepared by John M. Mattox
Succinct Summary
The Catholic Archbishop of San Antonio applied for a building permit to enlarge a parish
church, built in 1923, in Boerne, Texas. Under an ordinance that had recently been passed by the
city council, the city’s Historic Landmark Commission had to preapprove construction affecting
historic landmarks or buildings in the historic district. Relying on this ordinance, city officials
denied the Archbishop’s application. The Archbishop challenged the denial under the Religious
Freedom Restoration Act of 1993 (RFRA).
The Court held that Congress’ enactment of RFRA was not a proper exercise of its enforcement
power under Section 5 of the Fourteenth Amendment. The Court explained it contradicted
important principles that maintain the separation of powers framework and the federal-state
balance. Contrasting RFRA with the Voting Rights Act of 1965—whose enactment the Court
upheld as a legitimate use of Congress’ enforcement power under the Fourteenth Amendment—
the Court explained that RFRA’s legislative record lacked examples of instances of generally
applicable laws passed because of religious bigotry in the past 40 years. More problematic for
the Court, however, was the fact that RFRA was out of proportion to the remedial power vested
in Congress by the Fourteenth Amendment. Instead of responding to or preventing
unconstitutional behavior, the Court viewed RFRA as attempting a substantive change in
constitutional protections. In addition, RFRA was unconstitutional because it was not adapted to
the wrong which the Fourteenth Amendment was intended to provide against.
Facts of the Case
St. Peter Catholic Church, located in Boerne, Texas—approximately 28 miles from San
Antonio—was too small for its growing parish. Church leaders, therefore, undertook plans to
enlarge that building, which had been built in 1923. Shortly thereafter, the Boerne City Council
passed an ordinance authorizing the city’s Historic Landmark Commission to prepare a
preservation plan with proposed landmarks and districts. Under the ordinance, the commission
had to preapprove construction affecting historic landmarks or buildings in a historic
district. After the ordinance was enacted, the Archbishop of San Antonio applied for a permit to
enlarge St. Peter. City authorities, relying on the ordinance and the designation of an historic
district, denied the permit. The Archbishop challenged the denial under RFRA in U.S. District
Court. The District Court held that Congress had exceeded its authority under Section 5 of the
Fourteenth Amendment in enacting RFRA. On an interlocutory appeal, the Fifth Circuit
reversed.
Issue Presented to the Court
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The issue before the Court was whether Congress’ enactment of RFRA exceeded its power to
“enforce” the guarantees in the Fourteenth Amendment by “appropriate legislation.”
Finding and Conclusion
RFRA was enacted as a direct response to the Court’s Employment Div., Dept. of Human
Resources of Oregon v. Smith decision. Its stated purposes were to restore the compelling
interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and to guarantee its
application in all cases where free exercise of religion is substantially burdened. RFRA
prohibited “government” 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.’” Id. at 515-516.
Congress relied on its enforcement power in Section 5 of the Fourteenth Amendment to impose
RFRA’s requirements on the States. The Court explained that while Congress’ enforcement
power under Section 5 is broad, it is not unlimited. The Court stated:
Congress’ power under § 5, however, extends only to enforcing 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.
Id. at 519 (internal citations and quotation marks omitted).
The Court undertook an extensive review of the Fourteenth Amendment’s history and its own
jurisprudence and concluded that both confirm the remedial, rather than substantive nature of
Congress’ Fourteenth Amendment enforcement power.
The Court found that RFRA was not a proper exercise of the remedial enforcement power
conferred by the Fourteenth Amendment. Indeed, it reasoned:
. . . 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. Remedial legislation under § 5 should be adapted to the
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mischief and wrong which the Fourteenth Amendment was intended to provide
against.
RFRA is not so confined.
Id. at 532 (internal citations and quotation marks omitted). The Court further held that 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.” Id. at 533.
Based on these considerations, the Court concluded that RFRA “contradicts vital principles
necessary to maintain separation of powers and the federal balance” and was an unconstitutional
exercise of power.
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