It is chancy business for a lawyer who has lost a case to offer scholarly commentary on that case. The line between criticism and whining may be thin. Yet that lawyer also has the advantage of having spent much time investigating and thinking about the issues. I can at least record in the published scholarly record that "Boerne" is pronounced "Bernie."
I confidently expected to win the Flores case. Marci Hamilton and others who doubted the validity of the Religious Freedom Restoration Act(1) plainly had a much better sense than I of the Court's political mood. The city's brief contained twenty-nine citations to dissenting opinions, most of them for key points.(2) I naively thought that this revealed the weakness of the city's arguments. But Professor Hamilton's judgment was exactly right; the former dissenters now had the votes to change the law. Moreover, something about the facts or politics of RFRA provoked at least the acquiescence of Justices who I suspect would not have joined the earlier dissents on which she relied. The City of Boerne did not get all nine votes, but the most striking fact about the case is that Archbishop Flores did not get a dissent on the central issue in the case.(3)
My view of the matter was not entirely the self-delusion of an advocate: six appellate courts considered the constitutionality of RFRA prior to the Supreme Court's decision in Flores, and all six upheld the Act.(4) Five of these decisions upheld RFRA as applied to state or local law.(5) Four of these decisions came from federal courts of appeals, and each was written by a well-respected, conservative judge appointed by Ronald Reagan--James Buckley, Patrick Higginbotham, John Noonan, and Richard Posner.(6) I think that Flores dramatically changed the law, but if it did not, then I am not the only one who was confused.
Flores was unusual for the number and magnitude of fundamental disagreements between the two sides. Litigation over disputed questions of law works best when background principles are reasonably established and each side can build its argument from a starting premise that the Court is not likely to question. In Flores, the parties disputed everything at the most fundamental level. There were more basic points in dispute than the Court could focus on, and more than either side could adequately brief. Some of these conflicting assumptions were about the enforcement power, some were about RFRA itself, and some were about religious liberty. The Court's starting assumptions turned out to be much closer to those of RFRA's opponents, so probably RFRA was doomed from the beginning.
If the assumptions about RFRA and religious liberty dominated the decision, then Flores may be a special ticket, good for this day and this train only. It announced an elastic standard that might stretch to uphold anything Congress wants to enact except RFRA. The opinion depended heavily on the Court's assessment of the facts, and in future cases, the Court might find the facts required to uphold any statute that is not RFRA.
If the assumptions about the enforcement power were sufficient to drive the case without assistance from the assumptions about RFRA and religious liberty, then Flores may mean what it says, and the Court may find facts in the future exactly as it found them in Flores. In that event, Flores is by far the most important of the recent round of federalism decisions. Several statutes that were previously uncontroversial are now subject to serious constitutional attack; Congress's power to protect liberty in the states appears to have shrunk dramatically. As in Employment Division v. Smith,(7) nothing is overruled, but everything is changed.
WHAT THE COURT SAID
Flores held that RFRA is unconstitutional as applied to state and local governments.(8) The decision does not affect RFRA's application to federal law, which is based on Congress's Article I powers and in no way depends on the Fourteenth Amendment.
Flores significantly limits Congress's independent power to protect the civil liberties of the American people. How significantly remains to be seen, because the opinion announced a vague standard of uncertain scope. The Court reaffirmed that congressional power to enforce the Fourteenth Amendment includes the power to enforce rights incorporated into that Amendment from elsewhere in the Constitution.(9) But the enforcement power is "remedial" and not "substantive." Congress is bound by the Court's determination of the meaning of constitutional rights.(10) Even so, the remedial power is "broad,"(11) and the Court reaffirmed that Congress may "prohibit conduct which is not itself unconstitutional."(12) But Congress may prohibit such conduct only as a means to "deter or remed[y] constitutional violations" as defined by the Court,(13) and "[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end."(14) "[T]he line.., is not easy to discern, and Congress must have wide latitude in determining where it lies."(15) But the Court said that "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."(16)
The proportionality part of this standard seems to require an empirical judgment: Congressional enforcement legislation is valid only if violations of the Constitution, as interpreted by the Court, appear in a sufficiently large proportion of all cases presenting violations of the statute. The Court plainly believed that the proportion of constitutional violations to RFRA violations was small, and that this proportion was larger in the case of other enforcement legislation previously upheld.(17) But the Court had no data on any of these proportions, and it guessed about the number of free exercise violations without resolving serious disputes about what would count as a violation. The congruence and proportionality standard is inherently vague, and the litigation process is probably incapable of producing good data on the proportions the Court seems to require.
Without the prospect of data, we must rely on educated guesses. My own guess is that several important statutes do not satisfy this new standard if Flores is any guide to its content. The Court did not claim otherwise. This brings me to the first of the conceptual gulfs between the parties: What was different about RFRA?
WHAT WAS DIFFERENT ABOUT RFRA?
The centerpiece of our brief was a straightforward argument based on judicial and legislative precedent.(18) From 1866 to 1991, Congress repeatedly enacted enforcement legislation that went beyond judicial interpretations of the constitutional right being enforced.(19) Most of these Acts were upheld or accepted into the fabric of the law without serious challenge. RFRA was no different. RFRA excused the plaintiff from the obligation to prove bad motive or overt discrimination, and instead required the state to justify the burdens placed on religions by facially neutral laws. Citing Title VII(20) and the Voting Rights Acts,(21) we argued that no exercise of the enforcement power is better settled than its use to dispense with proof of bad motive or overt discrimination.
RFRA's opponents believed that it was a unique statute, an unprecedented congressional grab for power.(22) The Court at least agreed with them that RFRA went further than statutes it had previously upheld. The Court interpreted most of the judicial precedent, and some of the legislative precedent, as consistent with its decision. As to the rest, the Court was silent. The Court conspicuously did not say that the Voting Rights Act of 1982,(23) or Title VII as applied to state and local governments,(24) or congressional definitions of badges and incidents of slavery,(25) are congruent with and proportional to judicial definitions of the underlying constitutional rights.
The Court did explain how the Voting Rights Act of 1965(26) met its new standard. The core provisions of the 1965 Act were based on a voluminous congressional record showing widespread and persistent use of facially neutral devices to prevent African Americans from voting.(27) But this record is unique among modern legislation under the Enforcement Clauses.
The Court also attempted to explain how Katzenbach v. Morgan(28) fit its new theory of the enforcement power. The Court suggested that voting rights for Puerto Ricans in New York might have been intended as a remedy for discrimination in public services.(29) Acceptance of a voting rights remedy for a public services violation suggests that the requirement of congruence does not add anything to the requirement of proportionality. In addition, the Court seemed not to care that the congressional record said nothing about discrimination in public services in New York. Maybe the Court assumed it could take judicial notice of widespread ethnic discrimination in the delivery of public services. Or maybe the Court reaffirmed Morgan under an implicit grandfather clause, and Flores's new standard is, in practice, prospective only.
The Court also had trouble explaining Section 201 of the Voting Rights Act of 1970,(30) which banned literacy tests in the states not subject to the 1965 Act. The Court unanimously upheld this provision in Oregon v. Mitchell,(31) despite the lack of evidence that literacy tests had been misused in the newly covered states.(32) The Court in Flores cited speculation in several opinions in Oregon v. Mitchell about what Congress might have believed when it passed Section 201,(33) but even if the Court accurately attributed these speculations to Congress, they add up to a very thin record of occasional effects in most of the northern and western states. Flores did not comment on how the test of congruence and proportionality might have applied in either Katzenbach v. Morgan or Oregon v. Mitchell. The Court simply said that in...