Chapter 6:
Free Exercise of Religion
Although the Court has not decided any cases directly interpreting the Free Exercise of
Religion Clause of the First Amendment in any the last six terms, the Court in Boerne v. Flores
(1997) issued a decision of major significance for religious freedom in American society by
invalidating the 1993 Religious Freedom Restoration Act (RFRA). Congress had passed this
legislation in response to the Court=s 1990 decision in Employment Division v. Smith in which
the Court rejected the strict scrutiny approach -- or the Sherbert test -- to the Free Exercise Clause
and instead supported the principle that religious practices must always conform to neutral,
generally applicable laws. RFRA repudiated Smith by reestablishing the strict scrutiny standard,
but the Rehnquist Court by a 6-3 vote ruled in Boerne that RFRA was unconstitutional because
Congress had exceeded its proper authority and encroached upon the power of the Court to
interpret the meaning of the Constitution.
We have discussed the Smith case and the RFRA in depth in The Changing Supreme
Court: Constitutional Rights and Liberties (Hensley, Smith, and Baugh, 1997), and thus we only
need to summarize briefly the important developments leading to the Boerne case. Although the
Court=s free exercise jurisprudence during the Warren Court and Burger Court eras was
somewhat confusing and inconsistent, the Court nevertheless seemed committed to a strict
scrutiny approach under which any government policy that significantly burdened an
individual=s religious freedom had to be justified by a compelling government interest achieved
through the least restrictive means possible.
This doctrinal position was explicitly rejected in Employment Division v. Smith (1990)
by a five-person majority consisting of Justices Scalia, Rehnquist, Kennedy, White, and Stevens.
The case involved Native Americans who were fired from their jobs because they used illegal
drugs in their religious ceremonies and were subsequently denied unemployment benefits. In his
majority opinion for the Court, Justice Scalia argued that history, logic, and precedent all required
that religious practices could not be granted exemptions from neutral laws that were generally
applicable to all citizens.
The Court=s Smith decision was harshly criticized by the four dissenting justices -O=Connor, Brennan, Marshall, and Blackmun -- and by many Court experts and religious
leaders. The majority was accused of badly misreading and even distorting precedent. Criticism
also arose because the major doctrinal issues decided by the Court had not been addressed in the
written briefs or the oral arguments before the Court. In addition, widespread concern existed that
religious minorities would now experience significant interferences in their religious practices
and have no effective way to challenge these governmental intrusions into their religion.
In direct response to these concerns, Congress overwhelmingly passed RFRA in 1993.
Congress was openly critical of the Court in RFRA and explicitly sought to replace the Smith test
with the Sherbert test:
(1) [T]he framers of the Constitution, recognizing free exercise of religion as an
unalienable right, secured its protection in the First Amendment of the Constitution;
(2) laws “neutral” toward religion may burden religious exercise as surely as laws
intended to interfere with religious exercise;
(3) governments should not substantially burden religious exercise without compelling
justification;
(4) in Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court virtually
eliminated the requirement that the government justify burdens on religious exercise
imposed by laws neutral toward religion; and
(5) the compelling interest test as set forth in prior Federal court rulings is a workable test
for striking sensible balances between religious liberty and competing prior governmental
interests (65 U.S.L.W. at 4614, citing Section 2000bb(b) of RFRA).
RFRA provided the stimulus for hundreds of law suits around the country by individuals
claiming that various governmental activities unconstitutionally interfered with their free exercise
of religion, and the Court agreed to hear one of these cases, a dispute involving the St. Peter
Catholic Church in Boerne, Texas, a small community 28 miles northwest of San Antonio. The
church was built in 1923 and replicated the architectural style of the region=s earlier history.
Recent growth in the church=s membership resulted in 40 to 60 parishioners being unable to
attend some Sunday masses, and the Archbishop of San Antonio approved plans for the church to
expand its building. The Boerne City Council, however, denied the application for a permit by the
Archbishop, basing the decision on concerns about historic preservation of landmarks and
districts. The Archbishop in response filed suit challenging this denial in the United States
District Court for the Western District of Texas, relying in part upon RFRA. The District Court
ruled that Congress in enacting RFRA had exceeded its legitimate enforcement power under
Section 5 of the Fourteenth Amendment, but the Fifth Circuit Court of Appeals reversed the
decision, declaring RFRA constitutional.
Justice Kennedy=s majority opinion finding RFRA to be unconstitutional was joined by
Rehnquist, Stevens, Thomas, Scalia, and Ginsburg. The Court majority chose to avoid any
reconsideration of the Smith decision regarding the proper interpretation of the Free Exercise
Clause and instead analyzed RFRA under Section 5 of the Fourteenth Amendment, which states:
AThe Congress shall have the power to enforce, by appropriate legislation, the provisions of this
article.@ Thus, the issue for the Court to decide was whether Congress had exceeded its
permissible powers to enforce the Fourteenth Amendment provision that ANo state shall ...
deprive any person of life, liberty, or property, without due process of law....@ Kennedy=s
answer for the Court majority was that Congress had indeed gone beyond its legitimate authority,
and the duty of the Court was therefore to declare the law unconstitutional, exercising the
Court=s power of judicial review established in Marbury v. Madison (1803).
Kennedy began his analysis by arguing that history, the text of the Constitution, and the
Court=s precedents establish clearly that Congress= power under Section 5 extends only to
enforcing the provisions of the Fourteenth Amendment. This is solely a remedial power, and it
does not permit Congress to alter the meaning of a constitutional guarantee as interpreted by the
Supreme Court. In examining RFRA, Kennedy argued that the legislation A...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@ (65 U.S.L.W. at 4618). Kennedy concluded his
opinion as he began it by referencing Marbury v. Madison and the principle of the separation of
governmental powers among the various branches:
It is for Congress in the first instance to Adetermin[e] whether and what legislation is
needed to secure the guarantees of the Fourteenth Amendment,@ and its conclusions are
entitled to much deference. Congress= discretion is not unlimited, however, and the
courts retain the power, as they have since Marbury v. Madison, to determine if Congress
has exceeded its authority under the Constitution. Broad as the power of Congress is
under the Enforcement Clause of the Fourteenth Amendment, RFRA contradicts vital
principles necessary to maintain separation of powers and the federal balance. The
judgment of the Court of Appeals sustaining the Act=s constitutionality is reversed (65
U.S.L.W. at 4620).
Justices O=Connor, Souter, and Breyer dissented from the Court=s opinion. They did not
express disagreement with the separation of powers argument advanced by the Court majority.
Instead, they argued that the Court should have approached the case as a First Amendment free
exercise of religion case, although the dissenters disagreed among themselves about the proper
disposition of the case.
O=Connor, joined in dissent by Breyer, argued that Smith had been wrongly decided and
that the Boerne case should have been used to reexamine the validity of Smith. O=Connor
engaged in a lengthy historical analysis of the Free Exercise Clause, reaching the following
conclusion:
The historical evidence casts doubt on the Court=s current interpretation of the Free
Exercise Clause. The record instead reveals that its drafters and ratifiers more likely
viewed the Free Exercise Clause as a guarantee that government may not unnecessarily
hinder believers from freely practicing their religion, a position consistent with our preSmith jurisprudence (65 U.S.L.W. at 4623).
O=Connor=s preferred approach to the case was therefore to direct the parties to brief the
question of whether Smith was correctly decided and to set the case for reargument.
In his lone dissent, Justice Souter reiterated his earlier doubts about the Smith decision,
doubts which he stated were intensified by O=Connor=s historical analysis in her dissenting
opinion. Souter nonetheless stated that he could not join O=Connor=s dissent because Smith had
not been briefed or argued in Boerne. Thus, Souter stated, the Court=s proper approach should
have been to dismiss the writ of certiorari as improvidently granted.
The Boerne decision is an important one. The Court strongly reaffirmed the principle of
the separation of powers in declaring unconstitutional a rather remarkable challenge to the
Court=s power to interpret the Constitution. History will probably be kind to the Court on this
issue.
The practical effect of Boerne will be immediate and widespread. With RFRA invalid,
the numerous suits which had been initiated under the Act will probably be dismissed. In Ohio
alone, 130 suits had reportedly been raised regarding religious objections to prison rules (Epstein,
1997, p. A3). The Smith rule now clearly controls free exercise cases, and this means that few
claims of government interference with religious freedom will prevail.
Opponents of Smith will continue to fight the decision, but their options appear to be
limited (McFadden, 1997, A18). Little support exists for a constitutional amendment effort, and
the possibility of passing new federal laws to counteract Smith do not seem promising. For
example, in 1998 the Religious Liberty Protection Act (RLPA) was introduced in the House and
the Senate in an effort to address the Smith case in a manner that would meet the Court’s
approval, but the bill was killed when it reached the Senate in 1999 (Long, 2000 pp. 262-270).
Some states have considered adopting laws to counteract Smith, but this is a long, slow, and
difficult process (Long, 2000, pp. 270-272). Another alternative is to bring a test case before the
Court to challenge Smith directly, but this option also seems to hold little immediate promise. A
five-person majority -- Rehnquist, Scalia, Thomas, O=Connor, and Stevens -- seems committed
to the Smith rule, and Justice Ginsburg joined this group in Boerne. This does not necessarily
mean that Ginsburg would join them in a case directly challenging Smith, however, because
Ginsburg has yet to commit herself on the central question of the proper interpretation of the Free
Exercise Clause. Ginsburg=s failure to join the dissenting opinions by Souter and O=Connor in
Boerne certainly suggests, however, that she will support the Smith rule. Opponents of Smith thus
appear to have little immediate prospect of seeing the decision overturned.
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REFERENCES
Epstein, Aaron. AReligious Exemptions Curbed.@ Akron Beacon Journal, 26 June 1997, A3.
Hensley, Thomas R., Christopher E. Smith, and Joyce A. Baugh. 1997. The Changing Supreme
Court:
Constitutional Rights and Liberties . St. Paul, Minnesota: West/Wadsworth
Publishing Co.
Long, Carolyn N. 2000. Religious Freedom and Indian Rights. Lawrence, Kansas: University of
Kansas Press.
McFadden, Robert D. AHigh Court Criticized for Striking Down Federal Law Shielding
Religious Practices.@ New York Times, 27 June 1997, A18.