City of Boerne, Petitioner v. P.F. Flores, Archbishop of San Antonio, and United States No. 95-2074 Supreme Court of The United States 117 S. Ct. 2157; 1997 U.S.

June 25, 1997, Decided

CORE TERMS: religious, religion, Fourteenth Amendment, church, voting, remedial, peace, conscience, enforcing, accommodation, enact, literacy, preventive, colony, ordinance, Fourteenth Amendment's, CONSTITUTIONAL LAW, First Amendment, burdened, applicability, joined, restrictive, exemption, zoning, historic, archbishop, dictate, charter, exceeded, framer

In case involving zoning ordinance as applied to church, Religious Freedom Restoration Act of 1993 (42 USCS 2000bb et seq.) held beyond Congress' power to enact under 5 of Federal Constitution's Fourteenth Amendment.

FACTS:

Formerly, in cases such as Sherbert v Verner (1963) 374 US 398, 10 L Ed 2d 965, 83 S Ct 1790, and Wisconsin v Yoder (1972) 406 US 205, 32 L Ed 2d 15, 92 S Ct 1526, the United States Supreme Court applied a test under which the court asked

(1) whether the regulation substantially burdened a religious practice, and

(2) if so, whether the burden was justified by a compelling governmental interest.

In direct response, Employment Div. v Smith (1990) 494 US 872, 108 L Ed 2d 876, 110 S Ct 1595, Congress enacted the Religious Freedom Restoration Act of 1993 (RFRA) (42 USCS 2000bb et seq.). Among other provisions, the RFRA

(1) recited that one of its purposes was to "restore" the compelling-interest test as set forth in Sherbert v Verner and Wisconsin v Yoder;

(2) prohibited a government--federal, state, or local--from substantially burdening a person's exercise of religion, even if the burden resulted from a rule of general applicability, unless the government could demonstrate that the burden was in furtherance of a compelling governmental interest and was the least restrictive means of furthering that interest; and

(3) made the RFRA applicable to all federal or state law and the implementation of that law, whether statutory or otherwise and whether adopted before or after the RFRA's enactment. In the case at hand, an archbishop applied for a building permit to enlarge a church in a Texas city, but local zoning authorities--relying upon a city ordinance concerning historic landmarks and districts--denied the application. LEXIS 762). The Court of Appeals then denied rehearing en banc (83 F3d 421, 1996 US App LEXIS 9586).

In an opinion by Kennedy, J., joined by Rehnquist, Ch. J., and Stevens, Thomas, and Ginsburg, JJ., and joined in pertinent part by Scalia, J., it was held that (1) the RFRA exceeded Congress' power, under 5 of the Fourteenth Amendment, to enact legislation enforcing the First Amendment's free exercise clause, because--without the Supreme Court's rearguing the decision in Employment Div. v Smith--the RFRA contradicted vital principles necessary to maintain separation of powers and the federal balance, in that the RFRA appeared to attempt a substantive change in constitutional protections; and (2) accordingly, it was the Supreme Court's precedent, not the RFRA, which had to control the case at hand.

Stevens, J., concurring, expressed the view that the RFRA, by preferring religion over irreligion, violated the First Amendment's clause prohibiting an establishment of religion.

Scalia, J., joined by Stevens, J., concurring in part, expressed the view that the new items of historical evidence that were brought forward in the dissent of O'Connor, J., did not undermine the correctness of the conclusion which the Supreme Court had reached in Employment Div. v Smith.

O'Connor, J., joined by Breyer, J., as to points 1 and 2 below, dissenting, expressed the view that (1) the Supreme Court's analysis in the case at hand, as to whether the RFRA was a proper exercise of Congress' enforcement power under 5 of the Fourteenth Amendment, was premised on the assumption that Employment Div. v Smith had correctly interpreted the First Amendment's free exercise clause; (2) because--in light of factors including the historical evidence--Employment Div. v Smith had been wrongly decided, the Supreme Court should have (a) directed the parties to brief the question whether Employment Div. v Smith represented the correct understanding of the free exercise clause, and (b) set the case at hand for reargument; and (3) if she agreed with the standard in Employment Div. v Smith, then she would have joined the court's opinion in the case at hand.

Souter, J., dissenting, expressed the view that the Supreme Court should have dismissed the writ of certiorari in the case at hand as improvidently granted, since the court declined to set the case down for reargument that would permit plenary re-examination of the merits of the free exercise standard of Employment Div. v Smith.

Breyer, J., dissenting, expressed the view that (1) the court should have directed the parties to brief the question whether Employment Div. v Smith had been correctly decided, and (2) it was unnecessary to consider the question whether, on the assumption that Employment Div. v Smith had been correctly decided, 5 of the Fourteenth Amendment authorized Congress to enact the RFRA.

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