Mr. Lanting, a member of South Holland Protestant Reformed Church, is a practicing attorney.

Congress’ power extends only to “enforcing” the provisions of the Fourteenth Amendment. Legislation such as the RFRA 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 that right is.

The courts retain the power to determine if Congress has exceeded its authority under the Constitution. Broad as the power of Congress is, the RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance.

Boerne v. Flores

(Majority Opinion) (June, 1997)

Religious freedom suffered a disappointing setback this summer when the U.S. Supreme Court by a 6-3 vote in Boerne v. Flores declared the Religious Freedom Restoration Act (RFRA) unconstitutional. This judicial repeal of the popular law adopted by Congress in 1993 caused consternation among those who had strived for and celebrated its passage only a few years before. Some evangelical leaders described the Boerne opinion as “disastrous” and “the worst religious liberty decision in the last 50 years.” Although it could be argued that such an analysis is an exaggeration, there is no question but that the Boerne decision is a discouraging blow to religious freedom in this country.

RFRA’s Short History

Congress enacted RFRA four years ago in direct response to the Supreme Court’s controversial decision in the earlier case of Employment Div. v. Smith in 1990. The Smith case was brought by two members of the Native American Church who were denied unemployment benefit when they lost their jobs for ingesting peyote, a hallucinogenic drug used by Native Americans for sacramental purposes in their religious ceremonies. Smith held that “neutral, generally applicable” laws may impinge upon religious practices, even though such laws are not supported by a “compelling governmental interest.”

In deciding the Smith case, the Court declined to apply established precedent which held that when a law “substantially burdens” a religious practice, the law is constitutionally deficient unless the resulting burden on religious freedom is justified by a “compelling government interest.” In rejecting the historic test, the Court held in Smith:

Government’s ability to enforce generally applicable prohibitions of socially harmful conduct … cannot depend on measuring the effects of governmental action on a religious objector’s spiritual development.

The Smith Court’s abandonment of the “compelling interest” test for laws burdening religious practices outraged religious leaders and many members of Congress. Reacting swiftly to the Smith decision, Congress in 1993 passed RFRA, a federal law purposely intended to revive the “compelling interest” test for laws that impact the religious practices of U.S. citizens. (See box on at right for text of RFRA.)

This resulted, of course, in an obvious tension between the Supreme Court, which had abandoned the historic test in Smith, and Congress’ attempt to revive the test by enacting RFRA. The Boerne case gave the Court an opportunity to resolve this tension between Congress and the judiciary, and it did so by invalidating RFRA.

The Boerne Case

The Boerne case was initiated by a small Catholic parish church located in Boerne, Texas. The church building was erected in 1923 and its architecture replicated the mission style of the region’s earlier history. Because the edifice could no longer accommodate the growing congregation, the parish applied for a city building permit to enlarge the structure.

The Boerne city council denied the permit application, claiming that the building was located in a designated historic district wherein alteration of historic landmarks or buildings was forbidden by city ordinance. The parish then filed suit challenging the building permit denial, arguing the city’s refusal of its permit application was a violation of RFRA. The city responded by arguing that RFRA itself was unconstitutional. Although a federal appellate court ruled in favor of the church, the U.S. Supreme Court ruled for the city and held that RFRA was a bold attempt by Congress to exceed its power and thwart the Court’s decision in Smith.

The Boerne Decision

The majority held that Congress’ power extends only to “enforcing” the religious freedoms guaranteed by the Constitution, not “defining” those freedoms:

The design of the 14th Amendment is inconsistent with the suggestion that Congress has the power to decree the substance of [religious freedom]. 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 that right is.

The Court argued that if Congress was given the power to alter the meaning of religious freedom, Congress could then also define its own power. Then the Constitution, instead of remaining a “superior paramount law, unchangeable by ordinary means,” would be placed on a level with other legislative acts, to be altered whenever the legislature pleased.

Overbreadth

The majority also held that the RFRA was so overly broad, its scope so expansive, and its test so stringent, that its enforcement would be impracticable if not impossible:

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 government. Any law is subject to challenge at any time by any individual who alleges a substantial burden on his or her religion.

Finally, in addition to its overbreadth, the Court also complained that because the “compelling interest” test is the most “demanding test known to constitutional law,” the test would open the prospect of constitutionally required religious exemptions from “civic obligations of every conceivable kind.” The Court remarked that the result would be a congressional intrusion into state and local prerogatives to regulate the health and welfare of their citizens.

The Minority Opinion

The minority opinion, written by Justice Sandra Day O’Conner, urged the majority to reexamine its holding in Smith and return to a rule which would require government to justify any substantial burden on religiously motivated conduct by a compelling state interest. Justice O’Conner’s dissenting opinion reviewed the early American tradition of religious free exercise, and concluded that the original drafters and ratifiers of the Constitution viewed the Free Exercise Clause as a guarantee that government may not unnecessarily hinder believers from freely practicing their religion:

As historical evidence shows, the Free Exercise Clause is properly understood as an affirmative guarantee of the right to participate in religious activities without impermissible governmental interference, even where a believer’s conduct is in tension with a law of general application.

Comment

It is readily apparent to the reader of the Boerne decision that, at least for the majority, this case, ostensibly addressing religious freedom, was in reality much more about the issue of separation of powers—the political power struggle between the legislature and the judiciary. Although it appears the Court won this particular battle, religious freedom was the unwilling victim.

Secondly, religious freedom proponents are astonished to learn that RFRA was struck down by the Court partly because of its perceived overbreadth—because its “restrictions apply to every agency and official of the federal, state, and local governments.” But surely this is true of much federal legislation enforcing constitutional guarantees (e.g., anti-discrimination laws, free speech legislation, etc.). Why religious freedom laws must be subjected to a standard different from other federal laws enforcing constitutional guarantees is indeed puzzling.

Finally, serious proponents of religious liberty perhaps feel some resentment toward the peyote ingesting plaintiffs in Smith (the case that precipitated the Court’s abandonment of the “compelling interest” test for laws impacting religious practices). There is an old adage among lawyers that “bad cases make bad laws,” and perhaps Smith is an example. Peyote is a powerful drug that alters perception by producing vivid color hallucinations, inaccurate estimation of time, and feelings of anxiety. Large doses can have toxic effects. Thus, to argue that ingesting this illegal drug for “sacramental” purposes must be recognized as religious liberty is dubious indeed. Of course, religious liberty must by definition embrace peculiar, unorthodox, unpopular, and even despised practices. But when bizarre rites involving hallucinogenic drugs are characterized as a “religious” ceremony, then the courts become skeptical, harmful decisions result, and authentic religious freedom suffers.