IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-50306
P.F. FLORES, ARCHBISHOP OF SAN ANTONIO, Plaintiff-Appellant,
and
UNITED STATES OF AMERICA,
Intervenor-Plaintiff- Appellant,
versus
CITY OF BOERNE, TEXAS,
Defendant-Appellee.
Appeals from the United States District Court for the Western District of Texas
January 23, 1996
Before HIGGINBOTHAM, EMILIO M. GARZA, and BENAVIDES, Circuit
Judges.
HIGGINBOTHAM, Circuit Judge:
The City of Boerne, Texas, contends that Congress lacks the
authority to enact the Religious Freedom and Restoration Act of
1993, Pub. L. No. 103-141, 42 U.S.C. § 2000bb et seq. The district
court agreed. We are persuaded that the act is constitutional and
reverse. I.
The Saint Peter Catholic Church in Boerne, Texas, was built in
1923. In 1991, the Archbishop of San Antonio, Bishop Flores,
authorized the parish to build a larger facility.
Some months later, the City of Boerne enacted Ordinance 91-05
in order to "protect, enhance and perpetuate selected historic
landmarks" and to "safeguard the City's historic and cultural
heritage." The Ordinance authorized the City’s Historic Landmark
Commission to prepare a preservation plan with proposed Historic
Districts. The City Council adopted the Landmark Commission's
proposal for designating a Historic District. Saint Peter was not
designated as a historic landmark but at least part of the church
was included within the District. According to Archbishop Flores,
the Historic District included only its facade, but the City
considered the entire structure to be within the District.
In 1993, the church applied for a building permit from the
City to enlarge the church building, urging that its proposed
addition did not affect the church's facade. The Landmark
Commission denied the permit application, and the City Council, in
turn, denied the church's appeal. The church filed this suit
seeking a judicial declaration that the Ordinance was
unconstitutional and violated the Religious Freedom Restoration
Act, 42 U.S.C. § 2000bb et seq., injunctive relief, and attorneys'
fees.
2 The City’s first mention of constitutionality came in a
Proposed Joint Pre-trial Order asserting that "any interpretation
or application of the Religious Freedom Restoration Act of 1993
which imposes a statutory revision in the applicable standards of
First Amendment jurisprudence is not valid . . . taking into
account the operative provisions of Article III, the Free Exercise
Clause of the First Amendment, Section 5 of the Fourteenth
Amendment, and the Tenth Amendment." Over the church’s objection,
the district court granted the City leave to amend its answer to
plead the unconstitutionality of RFRA as asserted in the pre-trial
order.
The district court held that RFRA was facially invalid because
it infringed on the authority of the judiciary "to say what the law
is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). The
district court reasoned that "Congress specifically sought to
overturn Supreme Court precedent as found in Employment Division v.
Smith through the passage of RFRA." It was also persuaded that
Congress had not invoked its power under Section 5 of the
Fourteenth Amendment in enacting RFRA. The district court
certified its order for interlocutory appeal to this court pursuant
to 28 U.S.C. § 1292(b) and entered a partial final judgment under
Fed. R. Civ. P. 54(b). The United States and the church appealed
and petitioned for leave to appeal. We have jurisdiction.
II.
A.
3 Employment Division, Dep't of Human Resources v. Smith, 494
U.S. 872 (1990), held that the First Amendment's Free Exercise
Clause does not bar application of a facially neutral, generally
applicable law to religiously motivated conduct. Id. at 881. Five
months after Smith, Congress conducted its first hearing on a
legislative response, the Religious Freedom Restoration Act of
1990. See, Hearing Before the Subcomm. on Civil and Constitution
Rights of the House Comm. on the Judiciary, 101st Cong., 2d Sess.
(1990) (hereinafter "1990 House Hearing"). The 101st Congress did
not pass the bill, but it was reintroduced in the 102nd Congress,
S. 2969, 102nd Cong., 1st Sess. (1991); H.R. 2797, 102nd Cong., 1st
Sess. (1991), and again in the 103rd Congress. S. 578, 103rd
Cong., 1st. Sess. (1993); H.R. 1308, 103rd Cong., 1st Sess. (1993).
B.
In enacting the Religious Freedom Restoration Act of 1993,
Congress mandated that "Government shall not substantially burden
a person's exercise of religion even if the burden results from a
rule of general applicability" unless the Government demonstrates
that application of the burden "(1) is in furtherance of a
compelling governmental interest; and (2) is the least restrictive
means of furthering that compelling governmental interest." 42
U.S.C. § 2000bb-1(a),(b). RFRA applies both to Federal and State
law, whether enacted before or after RFRA became effective. 42
U.S.C. § 2000bb-3(a).
Congress found that "governments should not substantially
burden religious exercise without compelling justification," and
4 decried the Supreme Court's decision in Smith, asserting that it
"virtually eliminated the requirement that the government justify
burdens on religious exercise imposed by laws neutral toward
religion." 42 U.S.C. § 2000bb(a). The Act’s stated purpose was
"to restore the compelling interest test as set forth in Sherbert
v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205
(1972) and to guarantee its application in all cases where free
exercise of religion is substantially burdened." 42 U.S.C.
§ 2000bb(b)(1).
III.
Congress considered its constitutional authority to enact
legislation to overturn Smith. See 1990 House Hearing at 51
(statement of Rev. John H. Buchanan, Jr.). Scholars critical of
Smith found in Section 5 of the Fourteenth Amendment authority to
enact RFRA. See id. at 51, 54 (statement of Rev. John H. Buchanan,
Jr.), 72-79 (letter from Douglas Laycock); Congressional Research
Service, The Religious Freedom Restoration Act and The Religious
Freedom Act: A Legal Analysis 30-31 (1992) (prepared by David
Ackerman). Later hearings continued the study of Section 5 and the
support it would offer to such legislation. See Religious Freedom
Restoration Act of 1991: Hearings Before the Subcomm. on Civil and
Constitutional Rights of the House Comm. on the Judiciary, 102nd
Cong., 2d Sess. 353-59 (1992) (statement of Douglas Laycock)
(hereinafter "1992 House Hearings"); The Religious Freedom
5 Restoration Act: Hearing Before the Senate Comm. on the Judiciary,
102nd Cong., 2d Sess. 92-97 (1992) (statement of Douglas Laycock)
(hereinafter "1992 Senate Hearing").
Some thoughtful scholars questioned the authority of Congress
under Section 5, at least as far as RFRA pushed it. See, e.g.,
1992 House Hearings at 385-94 (statement of Ira Lupu); 1992 Senate
Hearing at 122-25 (statement of Bruce Fein). Congress ultimately
believed that Section 5 of the Fourteenth Amendment granted it
sufficient authority to enact the bill:
Pursuant to Section 5 of the Fourteenth Amendment and the Necessary and Proper Clause embodied in Article I, Section 8 of the Constitution, the legislative branch has been given the authority to provide statutory protection for a constitutional value when the Supreme Court has been unwilling to assert its authority. The Supreme Court has repeatedly upheld such congressional action after declining to find a constitutional protection itself. However, limits to congressional authority do exist. Congress may not (1) create a statutory right prohibited by some other provision of the Constitution, (2) remove rights granted by the Constitution, or (3) create a right inconsistent with an objective of a constitutional provision. Because [RFRA] is well within these limits, the Committee believes that in passing the Religious Freedom Restoration Act, Congress appropriately creates a statutory right within the perimeters of its power.
H.R. Rep. No. 88, 103d Cong., 1st Sess. 9 (1993). The Senate
report expressed similar views, noting that RFRA "falls squarely
within Congress' section 5 enforcement power." S. Rep. 111, 103d
Cong., 1st Sess. 14 (1993), reprinted in 1993 U.S.C.C.A.N. 1892,
1903.
When RFRA reached the Senate floor for debate, no Senator
questioned Congress' power under Section 5. The Senators
expressing a view on the issue were persuaded that Section 5
6 provided ample authority. See 139 Cong. Rec. S14469 (statement of
Sen. Grassley); 139 Cong. Rec. S14470 (statement of Sen. Hatch).
That the Executive and Legislative branches also have both the
right and duty to interpret the constitution casts no shadows upon
Justice Marshall’s claim of ultimate authority to decide. The
judicial trump card can be played only in a case or controversy.
The power to decide the law is an incident of judicial power to
decide cases. There is no more. A power of review not rooted in
a case or controversy would impermissibly draw to Article III the
interpretive role of the Executive and Legislative branches of
government. So it is that the familiar recitation that
Congressional legislation comes to us with a presumption of
constitutionality is a steely realism and not merely a protocol of
manners or an empty formalism.
No party here contends and we express no opinion whether other
delegations of legislative power, such as the Commerce Power,
provide constitutional authority for the passage of RFRA. RFRA's
legislative history more than satisfies our requirement that "we be
able to discern some legislative purpose or factual predicate that
supports the exercise of [Congress' Section 5] power." E.E.O.C. v.
Wyoming, 460 U.S. 226, 243 n.18 (1983). There is no question that
Congress drew on its power under Section 5 in enacting RFRA. The
district court’s doubt that it did is without basis. The issue is
whether that authority was there.
IV.
7 The City contends that RFRA is unconstitutional for four
related reasons. First, Congress lacked the authority to enact the
statute under Section 5 of the Fourteenth Amendment. Second, the
statute violates the separation of powers by returning to the
courts the task of accommodating general laws and religious
practices after Smith denied the judiciary's competence to do so.
Third, RFRA violates the Establishment Clause of the First
Amendment. Fourth, it violates the Tenth Amendment. We turn to
these contentions.
Section 5 of the Fourteenth Amendment provides that "Congress
shall have power to enforce, by appropriate legislation, the
provisions of this article." U.S. Const. amend. XIV, § 5. The
Thirteenth, Fourteenth, and Fifteenth Amendments "were specifically
designed as an expansion of federal power and an intrusion on state
sovereignty." City of Rome v. United States, 446 U.S. 156, 179
(1980).
The Supreme Court first considered the meaning of Section 5 in
Ex parte Virginia, 100 U.S. 339 (1879). It upheld the
constitutionality of an act prohibiting the disqualification of
grand or petit jurors on account of race. Id. at 345, 346. The
Court declined to read narrowly the power granted by Section 5:
Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power.
8 Id. at 345-46.
The civil rights legislation of the 1960's brought to court
again questions regarding the power of Congress under the Civil
Rights Amendments. In Katzenbach v. Morgan, 384 U.S. 641, 648
(1966), the Court rejected the argument that under Section 5
Congress could only prohibit acts that would violate the
substantive provisions of the Fourteenth Amendment. Referring to
M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819), the
Court held that the inquiry into what is "appropriate legislation"
under Section 5 is whether the statute "may be regarded as an
enactment to enforce [the Fourteenth Amendment], whether it is
'plainly adapted to that end' and whether it is not prohibited by
but is consistent with 'the letter and spirit of the
constitution.'" Id. at 651.
Six years later, the Court reaffirmed this reading of Section
5. In Oregon v. Mitchell, 400 U.S. 112, 118 (1970), the Court
upheld congressional prohibitions of literacy tests in state and
national elections. Mitchell did strike down the guarantee of the
right of 18-year-olds to vote in state elections, 400 U.S. at 118,
but that decision rested on the exclusive role of states in
conducting their elections. Justice Black explained that Congress'
enforcement power was broad but not unlimited:
As broad as the congressional enforcement power is, it is not unlimited. Specifically, there are at least three limitations upon Congress' power to enforce the guarantees of the Civil War Amendments. First, Congress may not by legislation repeal other provisions of the Constitution. Second, the power granted to Congress was not intended to strip the States of their power to govern themselves or to convert our national government of
9 enumerated powers into a central government of unrestrained authority over every inch of the whole Nation. Third, Congress may only "enforce" the provisions of the amendments and may do so only by "appropriate legislation." Congress has no power under the enforcement sections to undercut the amendments' guarantees of personal equality and freedom from discrimination, or to undermine those protections of the Bill of Rights which we have held the Fourteenth Amendment made applicable to the States.
Id. at 128-29 (opinion of Black, J.).
In the years since Mitchell, the Court has adhered to these
generally stated principles. In Fitzpatrick v. Bitzer, 427 U.S.
445 (1976), the Court upheld, against a federalism-based Eleventh
Amendment challenge, the application of Title VII, 42 U.S.C.
§ 2000e et seq., to the States. The Court explained that "[w]hen
Congress acts pursuant to § 5, not only is it exercising
legislative authority that is plenary within the terms of the
constitutional grant, it is exercising that authority under one
section of a constitutional amendment whose other sections by their
own terms embody limitations on state authority." Id. at 456.
Similarly, in Fullilove v. Klutznick, 448 U.S. 448 (1980), a
plurality of the Court expressed the view that Section 5 provided
authority to remedy the effects of past discrimination, even though
the Fourteenth Amendment only prohibited purposeful discrimination.
See id. at 478 (opinion of Burger, C.J., joined by White and
Powell, JJ.); id. at 500-02 (Powell, J., concurring). The Court in
Adarand Constructors, Inc. v. Pena, 115 S.Ct. 2097, 2117 (1995), in
holding that federal affirmative action programs are subject to
strict scrutiny, did not question congressional power under Section
5. Id. at 2114.
10 The Thirteenth, Fifteenth, Eighteenth, Twenty-third, Twenty-
fourth, and Twenty-six Amendments contain parallel grants of
enforcement power to Congress. The Court has read those provisions
in a similar fashion. For example, in South Carolina v.
Katzenbach, 383 U.S. 301, 326 (1966), the Court upheld provisions
of the Voting Rights Act of 1965. Discussing Congress' power under
Section 2 of the Fifteenth Amendment--which contains virtually
identical language to Section 5 of the Fourteenth--the Court wrote
that "[t]he basic test to be applied in a case involving § 2 of the
Fifteenth Amendment is the same as in all cases concerning the
express powers of Congress with relation to the reserved powers of
the States." Id. at 326. Quoting Chief Justice Marshall's opinion
in M'Culloch, the Court explained:
Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with letter and spirit of the constitution, are constitutional.
Id. at 326 (quoting M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316,
421 (1819)). Similarly, in James Everard's Breweries v. Day, 265
U.S. 545, 560 (1924), the Court, addressing the scope of Congress'
power under Section 2 of the Eighteenth Amendment, held that
Congress "may adopt any eligible and appropriate means to make [the
Eighteenth Amendment's] prohibition effective."
This continued adherence to the principle that Congress may
explicate textually located rights and obligations pursuant to
Section 5 persuades us that the three-part test from Morgan remains
the benchmark.
11 1.
The first inquiry under Morgan is whether RFRA "may be
regarded" as an enactment to enforce the Fourteenth Amendment. It
has been long established that the Due Process Clause of the
Fourteenth Amendment incorporates the Free Exercise Clause of the
First Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303
(1940).
We disagree with the City's argument that Congress' Section 5
authority is more limited when it acts to enforce provisions other
than the Equal Protection Clause. Section 5 does not place
conditions on Congress' authority to enforce the amendment.
Congress has the power to enforce "the provisions of this article,"
not just the Equal Protection Clause. United States v. Price, 383
U.S. 787, 789 & n.2 (1966) (noting Section 5 empowers Congress to
enforce "every right guaranteed by the Due Process Clause of the
Fourteenth Amendment"); see also Cong. Globe, 42d Cong., 1st Sess.
App. at 83 (1871) ("The fourteenth amendment closes with the words,
'the Congress shall have power to enforce, by appropriate
legislation, the provisions of this article'--the whole of it, sir;
all the provisions of the article; every section of it.")
(statement of Rep. Bingham). We reject the notion that there is
any relevant hierarchy of constitutional rights within the
Fourteenth Amendment. Cf. Caplin & Drysdale, Chartered v. United
States, 491 U.S. 617, 628 (1989). At base, this argument is little
12 more than an invitation to revisit the incorporation of the First
Amendment, an invitation addressed to the wrong court.
We think it beyond peradventure that Congress enacted RFRA to
enforce the religious liberty protected from State infringement by
the Due Process Clause. RFRA expressly declares its purpose "to
restore the compelling interest test . . . and guarantee its
application in all cases where free exercise of religion is
substantially burdened" and "to provide a claim or defense to
persons whose religious exercise is substantially burdened by
government." 42 U.S.C. § 2000bb(b). The Act itself defines
"exercise of religion" as that under the First Amendment. See 42
U.S.C. § 2000bb-2(4).
RFRA's legislative history leaves little room for doubt that
Congress intended "to enforce the right guaranteed by the free
exercise clause of the first amendment." S. Rep. 111 at 14 n.43,
reprinted in 1993 U.S.C.C.A.N. at 1904. Witnesses at congressional
hearings spoke eloquently of the need for legislation to defend
individuals, particularly those from minority religions, from
generally applicable laws that burden the exercise of religion.
See, e.g., 1992 House Hearings at 157-59 (statement of Edward
Gaffney, Jr.); 1992 Senate Hearing at 5-6 (statement of William
Nouyi Yang), 37-39 (statement of Dallin Oaks). Indeed, the Senate
Judiciary Committee found the need for legislation to restore the
pre-Smith compelling interest test in order "to assure that all
Americans are free to follow their faiths free from governmental
13 interference." S. Rep. 111 at 8, reprinted in 1993 U.S.C.C.A.N. at
1897-98.
2.
The second inquiry under Morgan is whether RFRA is "plainly
adapted to that end." Although Congress' power to enforce the
Amendment is not confined to "abrogating only those state laws that
the judicial branch was prepared to adjudge unconstitutional,"
Morgan, 384 U.S. at 648-49, Section 5 does not permit Congress to
rewrite the scope of the Amendment's provisions out of whole cloth.
Rather, Congress' power under Section 5 is remedial. Congress'
constitutional power to legislate pursuant to Section 5 is tied to
Congress' superior ability to find and redress nascent or disguised
violations of the Amendment. In short, "Congress may act only
where a violation lurks." E.E.O.C. v. Wyoming, 460 U.S. at 260
(Burger, C.J., dissenting).
The United States offers three remedial justifications for
RFRA: 1) RFRA deters governmental violations of the Free Exercise
Clause; 2) RFRA prohibits laws that have the effect of impeding
religious exercise; and, 3) RFRA protects the free exercise rights
of adherents of minority religions. We address each in turn.
The United States urges that RFRA is an effective means of
prohibiting the unconstitutional targeting of religion through
facially neutral laws. According to this view of RFRA, Smith's
requirement that individuals show that a law is not facially
neutral or generally applicable has not been an effective means of
14 rooting out laws hostile to a religion in particular or to religion
in general. RFRA responds by requiring all laws that substantially
burden the exercise of religion to pass the compelling interest
test, a test well-suited to separating well-intentioned statutes
from invidious ones. Cf. City of Richmond v. J.A. Croson Co., 488
U.S. 469, 493 (1989) (O'Connor, J.) (noting that purpose of strict
scrutiny is to "smoke out" illegitimate uses of race).
Congress could have reasonably concluded that Smith's focus on
facial neutrality and general applicability has been ineffective in
identifying laws motivated by antagonism to a religion or to
religion in general. As one witness testified before the Senate
Judiciary Committee, "formally neutral, generally applicable laws
have repeatedly been the instruments of religious persecution, even
in America." 1992 Senate Hearing at 71 (statement of Douglas
Laycock). Moreover, Congress found that "[a]fter Smith, claimants
will be forced to convince courts that an inappropriate legislative
motive created statutes and regulations. However, legislative
motive often cannot be determined and courts have been reluctant to
impute bad motives to legislators." H.R. Rep. 88 at 6. These
considerations, analogous to those underlying the Voting Rights Act
Amendments of 1982, Pub. L. No. 97-205, § 3, 96 Stat. 131, 134,
convince us that RFRA serves the remedial goal of identifying
budding or disguised constitutional violations that would otherwise
survive judicial scrutiny under Smith.
In a similar vein, the United States argues that even if the
Constitution only prohibits governmental action taken with the
15 intent of interfering with religious exercise, Congress may go
farther, as it did with RFRA, and prohibit conduct that has the
effect of burdening the exercise of religion. According to this
view of RFRA, applying the compelling interest test to all laws,
whether facially neutral or not, that have the effect of
substantially burdening the exercise of religion is a prophylactic
measure designed to ensure that government may not discriminate
against a particular religion or religion in general. It is
claimed to be an effective means of identifying both mature and
sprouting constitutional violations, a prophylactic measure that
prohibits some laws whose effect upon the free exercise of religion
is so substantial that RFRA is fairly said to regulate incipient
constitutional violations.
In cases involving racial discrimination, the Court has held
that Congress may prohibit laws with a racially discriminatory
effect, as it did in the Voting Rights Act of 1965, as an
appropriate method of promoting the Amendment's purpose, even if
the Constitution only prohibits laws with a racially discriminatory
intent. City of Rome, 446 U.S. at 177. Similarly, Congress could
reasonably conclude that prohibiting laws that have the effect of
substantially burdening religion promotes the free exercise of
religion. Congress heard much testimony regarding the severe
burdens that facially neutral laws can impose on an individual's
exercise of his religious beliefs. See, e.g., 1992 House Hearings
at 157-59 (statement of Edward Gaffney, Jr.) (discussing effect of
Smith on various religious exercise).
16 A robust application of the compelling interest test may be
uneven in exempting religious practices from statutes of general
applicability and push courts into either an uncomfortable judging
of the credibility of claims that practices are religious exercises
or leaving each person a non-regulatable island unto themselves,
arguably concerns behind the pre-Smith timidity of its use. The
concerns are large and, for some scholars, they are a compelling
argument against RFRA. Christopher L. Eisgruber & Lawrence G.
Sager, Why the Religious Freedom Restoration Act is
Unconstitutional, 69 N.Y.U. L. Rev. 437, 452 (1994). But this begs
the question of congressional power. That some generally
applicable laws must yield their unwitting grasp of religious
practices is the price Congress has chosen to pay to achieve its
desired level of accommodation. "It was for Congress, as the
branch that made this judgment, to assess and weigh the various
conflicting considerations." Morgan, 384 U.S. at 653. "It is
enough that we be able to perceive a basis upon which the Congress
might resolve the conflict as it did." Id.
Finally, the United States claims that RFRA serves to protect
religious minorities, thereby promoting the goals of both the Due
Process Clause and the Equal Protection Clause. According to this
view of RFRA, adherents of minority religions are
disproportionately affected by facially neutral laws. Congress
heard testimony regarding the effects of Smith on members of the
Hmong, Jewish, Mormon, and Amish faiths. See 1992 Senate Hearing
at 30-40; 1992 House Hearings at 104, 107-08, 406-09. Congress
17 could reasonably conclude that more exacting scrutiny of facially
neutral legislation that burdens a religious practice is needed to
protect adherents of minority religions. See S. Rep. 111 at 8,
reprinted in 1993 U.S.C.C.A.N. at 1897.
Relatedly, Congress could reasonably conclude that seeking
religious exemptions in a piecemeal fashion through the political
processes, particularly at the state or local governmental level,
would place minority religions at a disadvantage. See The
Federalist No. 10 (James Madison). Smith acknowledged that leaving
accommodation to the political processes risked discriminatory
treatment but viewed it as an "unavoidable consequence of
democratic government." 494 U.S. at 890. Congress considered the
effect the Smith decision would have on minority religions seeking
accommodations through the political process and concluded that
"State and local legislative bodies cannot be relied upon to craft
exceptions from laws of general application to protect the ability
of the religious minorities to practice their faiths." S. Rep. 111
at 8, reprinted in 1993 U.S.C.C.A.N. at 1897; see also 1992 House
Hearings at 326 (statement of Douglas Laycock).
These justifications fit within the remedial power of Congress
under Section 5. To our eyes, Congress considered the need for
"appropriate legislation" to enforce the provisions of the
Fourteenth Amendment and responded with legislation that is
"plainly adapted" to that end.
3.
18 The third inquiry under Morgan is whether RFRA is consistent
"with the letter and spirit of the constitution." This inquiry
requires us to determine whether RFRA violates any other provision
of the Constitution. Congress's power to remedy constitutional
wrongs is a one-way street. Congress may not violate other
constitutional provisions while enforcing those of the Fourteenth
Amendment. Morgan, 384 U.S. at 656. The City claims that RFRA
violates three Constitutional provisions: 1) the separation of
powers; 2) the Establishment Clause; and 3) the Tenth Amendment.
The City treats these arguments as independent of its Section
5 argument: Even if Section 5 authorizes Congress to enact RFRA,
it is unconstitutional for these additional reasons. However, as
Morgan makes clear, Congress has no power under Section 5 to
violate other individual rights. Stated another way, if RFRA
violates other constitutional provisions, it exceeds Congress'
Section 5 authority. We will address each separately.
The district court agreed with the City that RFRA violates the
separation of powers by displacing the authority of the judiciary,
established by Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177
(1803), "to say what the law is." RFRA accomplishes this goal,
according to the City, by reversing Smith and restoring the pre-
Smith judicial standard for evaluating free exercise claims. In
effect, Congress has created a new constitutional right and
achieved a “substantive expansion of First Amendment doctrine.” In
short, the City describes RFRA as nothing less than a
19 constitutional coup d'etat, declaring that "[t]he new order under
RFRA would overrule Marbury and craft a new standard of
constitutional responsibility." The United States responds that
RFRA "is simply a statute that provides legislative protection for
a constitutional right over and above that provided by the
Constitution."
The response that Congress has created a statutory right is
facile and ultimately incomplete. RFRA creates a statutory right
to be sure. The origins and framing of that right, however, are
drawn from judicial decisions construing the Constitution. We will
not pretend that RFRA is anything but a direct response to the
Supreme Court's decision in Smith. Indeed, Congress' announced
purpose was "to 'turn the clock back' to the day before Smith was
decided." H.R. Rep. 88 at 15 (statement of Rep. Hyde). Moreover,
RFRA speaks in terms familiar to constitutional adjudication. To
pass muster under RFRA, applicable laws must further a "compelling
governmental interest" and be the "least restrictive means" of
furthering that interest. This is a statutory rule, but it is a
rule mandating a process rejected by the Court in Smith.
RFRA is also, in a sense, an assignment by Congress of a
higher value to free-exercise-secured freedoms than the value
assigned by the courts--that is, strict scrutiny versus a form of
intermediate scrutiny. This view includes an image of
congressional second-guessing of the courts. But that sense is
false. Congress by RFRA is demanding ad hoc review of laws of
general applicability that substantially burden the free exercise
20 of religion. This is functionally a regulation of nascent
violations of the Free Exercise Clause, at least so long as the
statutory trigger of substantial effect is given full force. It is
true that the Court found that the Free Exercise Clause did not
require the Court to accommodate laws of general applicability not
aimed at a religious practice and that RFRA demands that the Court
engage in an exercise that the Court has eschewed. Nonetheless,
whether the courts must obey RFRA's command to do so turns only on
the independent issue of the power of Congress under Section 5.
As we have otherwise explained, this is indistinguishable in
any relevant way from the congressional command to examine election
practices adversely impacting the voting strength of protected
minorities, even though there was no purpose to discriminate and,
hence, no violation of the Equal Protection Clause. Dispensing
with the constitutionally rooted requirement that discrimination be
purposeful is an extraordinary exercise of power. The insistence
in Washington v. Davis, 426 U.S. 229, 239 (1976), upon proof of
discriminatory purpose was a decision about the judicial role. At
issue was whether the accent should be upon federal courts as
arbiters of social justice or as a more passive arbiter of cases or
controversies. The role of purpose becomes clear in the debate
over its wisdom. Compare Laurence H. Tribe, American
Constitutional Law § 16-20 at 1515 (2d ed. 1988) (urging that anti-
subjugation should be test rather than purpose) with Patrick E.
Higginbotham, Laurence Tribe’s Visionary Theories of the Equal
Protection Clause, 4 Benchmark 125, 131-34(1990) (rejecting Tribe’s
21 view). The merits of that debate aside, it was common ground that
dispensing with the requirement of Washington v. Davis that
violations of the Equal Protection Clause must be purposeful works
a large relocation of power. This is not to suggest that RFRA's
dispensing with purpose is of a lesser magnitude. We doubt that it
is. Rather, the point is that despite its large role, dispensing
with purpose remains nonetheless an exercise of Congress' remedial
power, the power to reach conduct that only threatens the free
exercise of religion.
Undeniably, RFRA's origins and codification of terms drawn
directly from constitutional decisions make it unusual and are
characteristic of what is termed a "foundational statute." The
critical question is whether they make RFRA unconstitutional. We
think not.
The City's argument rests on the mistaken assumption that
Smith describes not only how little the Government must accommodate
religion but also how much it may accommodate it. Stated another
way, the City must contend that Smith held not only that facially
neutral laws having the incidental effect of burdening religion do
not violate the Free Exercise Clause but also that exemptions to
such laws do violate either that clause or the Establishment
Clause. Only if the latter proposition is true does RFRA usurp the
judiciary's duty to interpret the Constitution.
This view of Smith has its supporters, see Christopher L.
Eisgruber & Lawrence G. Sager, Why the Religious Freedom
Restoration Act is Unconstitutional, 69 N.Y.U. L. Rev. 437, 450
22 (1994). Prior to Smith, the Court recognized that legislatures
were free to enact religious exemptions more expansive and
accommodating than that required by the Free Exercise Clause. See
Zorach v. Clauson, 343 U.S. 306 (1952); Corporation of Presiding
Bishop v. Amos, 483 U.S. 327, 334 (1987). Even when the Court held
that a particular religious accommodation violated the
Establishment Clause, Justice Brennan cautioned that "we in no way
suggest that all benefits conferred exclusively upon religious
groups or upon individuals on account of their religious beliefs
are forbidden by the Establishment Clause unless they are mandated
by the Free Exercise Clause." Texas Monthly, Inc. v. Bullock, 489
U.S. 1, 18 n.8 (1989) (Brennan, J.).
Smith, however, did not change this rule. To the contrary,
the Court contemplated "leaving accommodation to the political
process:"
Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process. Just as a society that believes in the negative protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so also a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well.
494 U.S. at 890. The Court noted with approval that several
States, unlike Oregon, had exempted the sacramental use of peyote
from their drug laws. Id.
Since Smith, the Court has reaffirmed that religious
accommodations are constitutional. "Our cases leave no doubt that
in commanding neutrality the Religion Clauses do not require the
23 government to be oblivious to impositions that legitimate exercises
of state power may place on religious belief and practice." Board
of Educ. of Kiryas Joel v. Grumet, 114 S.Ct. 2481, 2492 (1994).
Rather, "'government may (and sometime must) accommodate religious
practices . . . .'" Id. (quoting Hobbie v. Unemployment Appeals
Comm'n of Fla., 480 U.S. 136, 144 (1987)).
The City's separation of powers argument challenges this well-
established rule. Every legislatively mandated accommodation of
religion reflects a legislature's judgment regarding the free
exercise of religion. RFRA does not usurp the judiciary's
authority to say what the law is any more than did the Voting
Rights Act of 1964 when it prohibited literacy tests after Lassiter
v. Northampton County Bd. of Elections, 360 U.S. 45 (1959), had
upheld their constitutionality. Nor does RFRA usurp the
judiciary's interpretive powers any more than did the American
Indian Religious Freedom Act Amendments of 1994, Pub. L. No. 103-
344, 108 Stat. 3125, which overturns the particular result of Smith
by preventing States from prohibiting Native Americans from using
peyote as part of their religious practices. See 42 U.S.C.
§ 1996a(b)(1).
That RFRA speaks in broad generalities where other
legislatively mandated religious exemptions, such those provided by
the American Indian Religious Freedom Act, address specific conduct
is of no moment. Within the area of permissible legislative
accommodations of religion, Congress may paint with a broad or
narrow brush. In either situation, Congress has "disagreed" with
24 the judiciary regarding the scope of religious freedom and the Free
Exercise Clause. In neither situation has Congress arrogated to
itself the unrestricted power to define the Constitution.
In short, the judiciary's duty is to say what the law is, but
that duty is not exclusive. The district court's holding that RFRA
usurps the judiciary's power under Marbury v. Madison to interpret
the Constitution is incorrect.
Nor are we persuaded by the City's argument that RFRA violates
the separation of powers because it restores a test rejected in
Smith as beyond the judiciary's competence to apply. Smith
acknowledged that the legislative accommodation of religion "must
be preferred to a system . . . in which judges weigh the social
importance of all laws against the centrality of all religious
beliefs." 494 U.S. at 890. However, the Court's rejection of the
compelling interest test did not rest on judicial inability to
apply the test. The compelling interest test is familiar to judges
both in the context of free exercise claims, see Smith, 494 U.S. at
900-01 (O'Connor, J., concurring in the judgment), and elsewhere.
See, e.g., Adarand, 115 S.Ct. at 2117 (subjecting all racial
classifications to strict scrutiny).
Rather, the Court's rejection of the compelling interest test
in free exercise claims rested on the Court's aversion to applying
the test to facially neutral laws in the counter-majoritarian arena
of constitutional interpretation. See 494 U.S. at 888-889
(rejecting compelling interest test because it "would open the
prospect of constitutionally required religious exemptions").
25 Again, it is one thing to apply the compelling interest test drawn
from a statute where Congress can amend the underlying law if it
disagrees with the resulting balance; it is another when the only
response to the judiciary's application of the compelling interest
test is a constitutional amendment.
We conclude that RFRA does not violate the separation of
powers. Whether RFRA's requirement that judges determine whether
a particular law "substantially burdens" the exercise of religion
imposes upon the judiciary the duty of inquiring into the
centrality of particular practices to a faith and whether that
duty, if it exists, poses constitutional difficulties is not
presented. See Smith, 494 U.S. at 887 & n.4. As we have
explained, the full meaning of "substantially burdens" must be
found in its application. It is self-evident that the vigor of the
insistence that effects be substantial and the risks of error in
locating incipient violations of the Free Exercise Clause are
directly related. An anemic application of “substantial effect”
pushes the limits of congressional power to remedy.
C.
Nor does RFRA mandate religious accommodations that violate
the Establishment Clause. To the contrary, the act provides that
"[n]othing in this chapter shall be construed to affect, interpret,
or in any way address [the Establishment Clause]." 42 U.S.C.
§ 2000bb-4. In short, RFRA by its own terms provides that the
accommodations mandated by RFRA may reach up to the limit permitted
by the Establishment Clause but no further.
26 The City responds that, even so, RFRA on its face violates the
Establishment Clause because it lacks a secular purpose and because
it has the primary effect of advancing religion. See Lemon v.
Kurtzman, 403 U.S. 602 (1971). We disagree. Its remedial
justifications belie the City's contention that Congress acted with
a sectarian purpose. Relatedly, "it is a permissible legislative
purpose to alleviate significant governmental interference" with
the exercise of religion. Amos, 483 U.S. at 335.
RFRA no more advances religion than any other legislatively
mandated accommodation of the exercise of religion. In Amos, the
Court rejected the argument that an accommodation violates the
primary effects prong of the Lemon test simply by virtue of being
an accommodation. "A law is not unconstitutional simply because it
allows churches to advance religion, which is their very purpose.
For a law to have forbidden 'effects' under Lemon, it must be fair
to say that the government itself has advanced religion through its
own activities and influence." Id. at 337 (emphasis in original).
RFRA's lifting of "substantial burdens" on the exercise of religion
does not amount to the Government coercing religious activity
through "its own activities and influence."
D.
Finally, the City urges that RFRA violates the Tenth Amendment
because the act limits the power of the States to legislate "in the
traditional areas of state sovereignty and prominence." The City
mistakenly relies on the Court's decision last term in United
States v. Lopez, 115 S.Ct. 1624 (1995), which held that the Gun
27 Free School Zones Act exceeded Congress' power under the Commerce
Clause. Congress, however, enacted RFRA pursuant to its power
under Section 5 of the Fourteenth Amendment. Although the United
States urges that the Commerce Clause also supports Congress'
authority to enact RFRA, we have not reached that contention.
The Court has repeatedly noted that "the principles of
federalism that constrain Congress' exercise of its Commerce Clause
powers are attenuated when Congress acts pursuant to its powers to
enforce the Civil War Amendments." Gregory v. Ashcroft, 501 U.S.
452, 468 (1991). On its face, RFRA does not intrude upon state
sovereignty any more than the myriad other federal statutes that
preempt state regulation.
That said, we do not suggest that the Tenth Amendment plays no
role. Gregory itself recognized that the Court "has never held
that the Amendment may be applied in complete disregard for a
State's constitutional powers." Id. To the contrary, "the
Fourteenth Amendment does not override all principles of
federalism." Id. at 469. Indeed, the Court in Gregory refused to
construe a congressional act to reach state governmental functions
in the absence of a clear statement from Congress that it intended
to do so. Id. at 470. Such questions of RFRA's applicability to
particular areas of state regulation, however, are best left for
individual, case-by-case resolution. It is enough for us to
conclude that RFRA on its face does not violate the Tenth
Amendment.
V.
28 We hold that Section 5 of the Fourteenth Amendment empowered
Congress to enact the Religious Freedom Restoration Act. We
further hold that RFRA does not usurp the judiciary's power to
interpret the Constitution. Accordingly, we REVERSE the order of
the district court holding the Religious Freedom Restoration Act
unconstitutional on its face and REMAND for further proceedings not
inconsistent with this opinion.