City of Boerne v. Flores: Defining the Limits of Congress's Fourteenth Amendment Enforcement Clause Power - R. Brent Hatcher, Jr.

• Jurisdiction: United States,Federal
• Publication year: 1998
• Citation: Vol. 49 No. 2

CASENOTES

City of Boerne v. Flores: Defining the Limits of Congress's Fourteenth Amendment Enforcement Clause Power

In City of Boerne v. Flores,¹ the United States Supreme Court held that through the enactment of the Religious Freedom Restoration Act ("RFRA")² Congress exceeded its Fourteenth Amendment Enforcement Clause Power. The Court invalidated the statute because of its incongruence and its contradiction of vital principles necessary to maintain the Separation of Powers doctrine.³

I. FACTUAL BACKGROUND

St. Peter Catholic Church is located in the city of Boerne, Texas, approximately twenty-eight miles northwest of San Antonio. The church was built in 1923 and replicates the mission style architecture of the region's earlier history. St. Peter's seats about 230 worshipers, a number too small to accommodate the growing parish. At some Sunday masses, approximately forty to sixty parishioners could not be supplied with seating. In order to meet the needs of the St. Peter's congregation, the Archbishop of San Antonio, P.F. Flores, gave permission to the parish to plan alterations to enlarge the building.⁴

A few months after the Archbishop's approval for enlargement, 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.⁵ Under this ordinance, the Commis-sion must pre-approve construction affecting historic landmarks or buildings in a historic district. Soon after the enactment of the ordinance, the Archbishop applied for a building permit so that construction to enlarge the church could proceed. City authorities, relying on the ordinance and the designation of a historic district (which they argued included the church), denied the Archbishop's application.⁶ The Archbishop brought suit under RFRA challenging the permit denial⁷ in the United States District Court for the Western District of Texas.⁸

Aware of the city's special constitutional issue, the district court allowed both parties to submit briefs addressing the constitutionality of RFRA.⁹ The district court held RFRA to be unconstitutional because it "changfed] the burden of proof as established in Employment Division v. Smith."¹⁰ In addition, the court held that through the enactment of RFRA Congress had exceeded the scope of its enforcement power under Section Five of the Fourteenth Amendment.¹¹ The district court certified its order for interlocutory appeal to the Fifth Circuit.¹² The United States and the church appealed and petitioned for leave to appeal.¹³ The Fifth Circuit held that Section Five of the Fourteenth

Amendment empowered Congress to enact RFRA.¹⁴ The court also held that RFRA did not violate the Separation of Powers doctrine by usurping the judiciary's power o interpret the Constitution and reversed the decision of the district court.¹⁵ The Supreme Court granted certiora-ri,¹⁶ reversed the Fifth Circuit's decision, and held that by enacting RFRA, Congress had exceeded its enforcement power under the Fourteenth Amendment.¹⁷

II. LEGAL BACKGROUND

The United States Congress enacted RFRA in 1993 as a legislative response to Employment Division v. Smith.¹⁸ Under Smith, the First Amendment no longer protected religious practices that conflicted with "valid and neutral law[s] of general applicability."¹⁹ The Court held that the Constitution's Free Exercise Clause "does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or pre-scribes) conduct that his religion prescribes (or proscribes).'"²⁰ The majority declined to examine whether the denial of a religious exemp-tion, which prohibited Oregon Native Americans from ingesting peyote for sacramental purposes, was necessary to the achievement of a compelling governmental interest.²¹

The compelling interest standard had been articulated in numerous cases since Sherbert v. Verner.²² In Sherbert, the Supreme Court established a three part test for evaluating Free Exercise claims. If (1) the religious observer could show a sincerely held religious belief that was substantially burdened by some government rule or regulation, then (2) the government had to demonstrate a compelling interest in passing the rule or regulation, and (3) such regulation must be the least restrictive means available to achieve the compelling governmental interest.²³ This three part analysis served as the standard for inter-preting the Free Exercise Clause for nearly three decades.

The purpose of RFRA was "to restore the compelling interest test set forth in Sherbert v. Verner and Wisconsin v. Yoder²⁴ and to guarantee its application in all cases where free exercise of religion was substan-tially burdened."²⁵ Additionally, RFRA served as a vehicle to provide "claim[s] or defensefs] to persons whose religious exercise is substantial-ly burdened by government."²⁶ The statute protected the free exercise of religion by establishing the burden the government must meet in order for laws affecting such free exercise to withstand judicial scrutiny. The government could burden a person's free exercise of religion (even if the burden resulted from a rule of general applicability)²⁷ only if it demonstrated that the application of the burden to the person was in furtherance of a compelling governmental interest and was the least restrictive means of furthering that interest.²⁸ RFRA was not to be construed as authorizing the federal or state governments to burden any religious belief, nor as affecting in any way the Establishment Clause of the First Amendment.²⁹

Congress's reinstatement of the Sherbert standard had been examined on constitutional grounds by lower federal courts prior to City of Boerne. These courts examined the constitutionality of RFRA as applied to state-imposed burdens on the exercise of religion and reached different conclusions.³⁰ Some district courts upheld RFRA on either remedial grounds by approving of Congress's power to enact corrective legislation, or substantive grounds by recognizing Congress's ability to disagree with the Court on the reach of Constitutional rights.³¹ Two district courts, however, held RFRA unconstitutional.³² These cases centered around concerns about Congress's power to create religious exemptions to state legislation. Thus, the constitutionality of RFRA would rest on the

Supreme Court's definition of congressional powers under Section Five of the Fourteenth Amendment.

The Enforcement Clause of the Fourteenth Amendment provides: "The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."³³ The enforcement power of Congress under the Clause has been defined by the Supreme Court since the Amend-ment's ratification in 1866.

Perhaps the most important early decision construing the breadth of congressional power under Section Five came in the Civil Rights Cases,³⁴ which set the tone for defining the reach of the Enforcement Clause. In these decisions, the Court declared void sections of the Civil Rights Act of 1875 that prescribed criminal sanctions for denying to any person the enjoyment of public accommodations.³⁵ The majority noted that the Amendment's entire purpose was to prohibit state action; individual invasion of individual rights was not the subject matter of the amendment.³⁶ The Court concluded that the Enforcement Clause vests Congress with the power to enforce prohibitions against certain state actions.³⁷ In the majority's view, congressional Enforcement Clause power was limited to the enactment of corrective legislation. The Clause did not endow Congress with the "power to legislate upon subjects which are within the domain of State legislation."³⁸ The Fourteenth Amendment provides "modes of relief against State legislation, or State action."³⁹

In addition to the Civil Rights Cases, several other early decisions reflect the Supreme Court's construction of Congress's enforcement power in connection with particular actions of the states. For example, in United States v. Reese,⁴⁰ the Court stated that although Congress has the authority to regulate federal elections, such regulations are inapplicable to state elections and exceed the scope of the Enforcement Clause.⁴¹

In United States v. Harris,⁴² the Court declared unconstitutional a federal statute that imposed criminal punishment upon two or more persons in any state who conspired to deprive another of equal protection of the laws or of equal privileges and immunities.⁴³ The Court was concerned about congressional intrusion into areas tradition-ally reserved to the states and held that when a state has not violated Fourteenth Amendment provisions, the Amendment "imposes no duty and confers no power upon Congress."⁴⁴

Similarly, in James v. Bowman,⁴⁵ the Court struck down a federal statute⁴⁶ preventing anyone from hindering or intimidating persons from exercising their rights to suffrage under the Fifteenth Amendment.⁴⁷ Reading the Fifteenth Amendment as parallel with the Fourteenth Amendment, the Court held that a statute which purports to punish purely individual action cannot be sustained as an appropriate exercise of congressional power.⁴⁸ Citing previously decided case law,⁴⁹ the Court stated that the Fourteenth Amendment is in place only to guarantee that a state does not deny individuals the rights with which they are endowed.⁵⁰ "The power of the federal government is limited to the enforcement of this guarantee."⁵¹ Although the specific holdings of these cases may have been superseded or modified,⁵² their treatment of Congress's Section Five power has remained intact.⁵³

Modern Enforcement Clause jurisprudence generally defines Con-gress's Section Five powers as remedial: a means for correcting unconstitutional state action. While the earlier cases addressing Congress's enforcement power resulted in frequent disapproval of legislative schemes, more recent...