City of Boerne v. Flores

CITY OF BOERNE v. FLORES, ARCHBISHOP OF

SAN ANTONIO, et al. No. 95-2074. Argued February 19, 1997 25, 1997 June Decided Kennedy, J., delivered the opinion of Court, in which Rehnquist, J.,C. and Stevens, Thomas, and Ginsburg, JJ., joined, and in which Scalia, J., joined as to all but Part III-A-1. Stevens, J., filed con- curring opinion, post, p. Scalia, 536. J., filed an opinion concurring part, in which Stevens, J., joined, post, p. 537. O’Connor, J., filed a dissenting opinion, in Breyer, J., which joined except as to the para- first graph of I, Part post, p. Souter, J., post, 565, p. Breyer, J., and post, p. filed dissenting opinions. Marci A. argued Hamilton petitioner. cause for With her on the briefs were Lowell F. Denton and Gordon L. Hollon. Jeffrey S. Sutton, State of Solicitor argued Ohio, the cause

for the State of Ohio et al. as amici urging curiae reversal. With him on the brief were Betty D. Montgomery, Attor- Marti, As- Todd Maier C. Robert Ohio, of General ney for General Attorneys General, Attorneys sistant M. Toga- Malaetasi follows: jurisdictions respective their A. Gale Arizona, of Woods Samoa, Grant American of fau Robert Delaware, of Brady Jane Colorado, M. of Norton Guam, Sr., of Holloway, Florida, Calvin of Butterworth Idaho, Lance G. Hawaii, Alan Bronster S. Margery of Ne- Papa Del Sue Frankie Mississippi, Moore Mike F. Eas- Michael Hampshire, Newof Howard R. vada, Jeffrey Oklahoma, Edmondson Drew A. Carolina, W. North ley Brady A. Julio Pennsylvania, Jr., Corbett, W. Thomas Islands. Virgin Flores. respondent for cause argued haycock Douglas Patricia Drought Thomas were brief on him With argued Dellinger General Solicitor Acting J. Schofield. were brief him With States. United for cause Gen Solicitor Deputy Hunger, General Attorney Assistant Singer.* Jay Michael Millett, and A. Waxman, Patricia eral the Common- filed were reversal urging curiae amici *Briefs E. General, David Attorney II, Gilmore S. James Virginia wealth Hurd, Deputy Henry General, William Attorney Deputy Anderson, Chief by Foundation Clarendon Goodman; for E. General, Lee and Attorney Legal to Work Right National for Bybee; Jay S. and Maines D. Ronald Antonio the San Cameron; for and N. Bruce Inc., by Foundation, Defense Fong. K. Jr., and Ivan Long, A. Robert by al. Society et Conservation State for the filed were affirmance urging curiae amici Briefs Maryland, General Attorney Jr., Curran, Joseph J. by al. et Maryland General, and Attorneys Sullivan, Assistant M. Steven Schwartz Jack Richard follows: States respective their for Attorneys General by Den- Massachusetts, and Harshbarger Connecticut, Scott Blumenthal Delegates House Virginia York; members for Newof Vacco C. nis Carter by al. et Hatch G. Orrin Karlan; Senator for A. Mitchell by et al. al. et Kennedy M. Edward Schaerr; for Senator C. Gene Phillips G. Cooper, N. Lee by Association Bar American Sloan; for M. by Clifford for Center American Onek; for N. Joseph Newberger, H. Stuart Sr., Henderson, Walter M. Sekulow, James Alan Jay by Justice Law Beckett for Stepanovich; G. John Fournier, and A. Weber, Keith M. Jesus Church Hasson; for J. Kevin Liberty by Religious Fund Kennedy opinion delivered the Justice of the Court.* A decision zoning local authorities deny a church a building permit was challenged under the Religious Free- dom (RFRA Restoration Act of 1993 Act), 107 Stat. 1488, § 42 U. S. C. 2000bb seq. et The case calls question into authority of Congress to enact RFRA. We conclude the statute exceeds Congress’ power.

I Situated on a hill in city of Boerne, Texas, some 28 miles northwest of San Antonio, is St. Peter Catholic Church. Built in 1923, the church’s replicates structure the mission Christ of Latter-day Saints by W. Cole Durham, Jr., James A. Serritella, James C. Geoly, Kevin R. Gustafson, and Von Keeteh; G. for the Coalition for the Free Exercise of Religion by Stern, Marc D. Oliver S. Thomas, J. Brent Walker, Melissa Rogers, Steven T. McFarland, Samuel Rabinove, Richard Foltin, David Zwiebel, Steven R. Shapiro, Steven Green, K. and Jack F. Trope; for the Defenders of Property Rights et al. by Nancie G. Marzulla; for the Minnesota Family Council et al. by Jordan W. Lo- rence; for the NAACP Legal Defense and Fund, Educational Tnc., by Elaine R. Jones, Theodore Shaw, M. and Norman J. Chachkin; for the National Committee for Amish Religious Freedom by William Bentley Ball and Richard E. Connell; for the National Jewish Commission on Law and Public Affairs by Lewin, Nathan Mathew S. Nosanchuk, and Dennis Rapps; for the National Trust for Historic Preservation in the United States by H. John Beisner and S. Elizabeth Merritt; for the Prison Fellow- ship et Ministries al. by Michael Joseph Woodruff, Ward, Scott J. J. Mat- thew Szymanski, Stephen Clarke, M. and Isaac M. Jaroslawicz; and for the -United States Catholic Conference et al. by Michael W. McConnell, Mark E. Chopko, and Jeffrey Hunter Moon. Briefs of amici curiae were filed for the State of Texas by Morales, Dan

Attorney General, Jorge Vega, First Assistant Attorney General, and Samuel W. Goodhope and Javier Aguilar, Special Assistant Attorneys General; for the Center for the Community Interest by Gilbert R. Serota; for Children’s Healthcare is Legal Duty, Inc., et al. by Robert J. Bruno; for the Knights of by Columbus Thomas D. Yannucci and Carl A. An- derson; for the Rutherford Institute by John W. Whitehead, James A. Jr., Hayes, and Brian L. Day; and by Greene, Thurston pro se. *Justice joins Scalia all but Part III-A-1 of this opinion.

512 about seats church history. The earlier region’s the

style of parish. growing its for small too number a worshippers, 230 some accommodated be cannot parishioners to 60 40 Some congrega- the needs the meet to order In Sunday masses. to the permission gave Antonio Archbishop San the tion building. enlarge the to alterations plan parish an passed City Council Boerne the later, months fewA Commis- Landmark city’s Historic authorizing the ordinance historic proposed plan preservation a prepare sion commis- the ordinance, the Under districts. and landmarks land- affecting historic construction preapprove must sion district. a historic buildings in marks building a for applied Archbishop the afterwards, Soon proceed. could church enlarge the construction so permit designa- the ordinance on relying authorities, City included argued, (which, they district historic aof tion church), brought Archbishop The application. denied States United denial permit challenging the suit this 877 Texas. District Western for Court District (1995). Supp. 355 F. point this but claims, various contained complaint The of its question RFRA centered litigation has one RFRA upon Archbishop relied constitutionality. The permit. to issue refusal from relief for basis enacting RFRA concluded Court District § 5 of under power enforcement its scope of exceeded order its certified court Amendment. Fourteenth finding reversed, Circuit Fifth interlocutory appeal (1996). We 1352 3dF. constitutional. RFRA (1996), reverse. now S. 519 U. certiorari, granted s Court Congress enacted to the response in direct RFRA II Resources Human Dept. Div., Employment decision considered we (1990). There S.U. Smith, v. Ore. by members brought claim Clause Exercise Free Native American Church who were denied unemployment benefits when lost they their jobs because they had used pey- ote. Their was practice to ingest peyote sacramental purposes, an they challenged statute Oregon of general which made applicability use of the criminal. In drug evalu- ating claim, we declined to apply test balancing set forth in Sherbert v. Verner, 374 U. S. 398 (1963), under which we would have asked whether Oregon’s prohibition substan- tially burdened a religious and, if practice did, it whether the burden was a justified by compelling government interest. We stated:

“[Gjovernment’s to enforce ability generally applicable prohibitions harmful socially conduct . . . cannot de- pend the effects measuring of a governmental action on a religious objector’s spiritual To development. make an individual’s such obligation law obey a con- the law’s tingent upon coincidence with his religious beliefs, where the State’s except interest is ‘compelling’ ... contradicts both constitutional tradition and common (internal S., sense.” 494 at U. marks and quotation omitted). citations Sherbert

The the Smith decision ex- application test, would plained, have an produced law, in the a anomaly consti- tutional neutral laws of right ignore general applicability. would have anomaly accentuated, been the Court rea- soned, whether difficulty a determining particular was practice central an individual’s We ex- religion. moreover, plained, that it “is not within the ken to judicial question centrality beliefs particular practices to faith, or of particular validity litigants’ interpretations those (internal S., creeds.” U. at 887 marks quotation omitted). and citation instances only where a neutral, generally applicable

law had failed to pass the Smith Court muster, constitutional protections constitutional other which cases

noted, were Yoder,406 v. Wisconsin In 881-882. Id., at stake. were Wisconsin’s invalidated we (1972), example, for 205 S. U. par- Amish to applied as law mandatory school-attendance children their send to grounds religious on refused who ents the free to right only the not implicated case That school. to control to parents right of the also but religion exercise education. children’s their employed had Court acknowledged the decision Smith challenges to exercise considering free in test Sherbert the occasions three on rules compensation unemployment state See individual. the favor tipped had balance the where Employ- Indiana Bd. Review v. Thomas supra; Sherbert, (1981); Unem- v. Hobbie 707 S.U. Div., Security ment (1987). S.U. Fla., 480 Comm’n Appeals ployment proposition “the stand explained, Court cases, Those ex- individual system a place has State where that to cases system extend refuse may not it emptions, S., 494 U. reason.” compelling hardship without religious omitted). contrast, By marks (internal quotation at issue, is at Oregon’s, such prohibition, general a where accord approach approach, sounder “the inapplica- test hold tois precedents, our majority vast held Smith 885. at Id., challenges.” exercise] [free ble reli- applied may be laws applicable generally neutral, compelling by a supported when even practices gious interest. governmental argued They disagreed. Court Members Four American Native burden substantial a placed law law only if upheld could it so that members Church narrowly tailored was interest state compelling served con- Id., O’Connor end. Justice achieve Blackmun, Justice test, while satisfied Oregon had cluded no see Marshall, could Justice Brennan by Justice joined application law’s justifying compelling interest members. points

These of constitutional interpretation were debated by Members in hearings and floor debates. Many criticized the Court’s reasoning, disagreement this resulted in passage of RFRA. Congress announced:

“(1) [T]he framers of the Constitution, recognizing free religion exercise of as an right, unalienable secured its protection in the First Amendment to the Constitution; “(2) laws 'neutral’ religion toward may burden exercise as surely as laws intended to interfere with re- ligious exercise;

“(3) governments should not substantially burden reli- gious exercise without compellingjustification; “(4) in Employment Division v. Smith, U. S. 872 (1990), Supreme Court virtually eliminated the re quirement that government justify burdens on reli gious imposed exercise by laws neutral toward reli gion; and “(5) the compelling interest test as set prior forth in Federal rulings court is a workable test for striking sen sible balances between religious liberty and competing prior governmental § 2000bb(a). interests.” 42 U. S. C. The Act’s stated purposes are:

“(1) to restore the compelling interest test as set forth in Sherbert v. Verner, (1963) 374 U. S. 398 and Wisconsin (1972) v. Yoder, 406 U. S. guarantee and to its appli- cation in all cases where free exercise religion is sub- stantially burdened; and “(2) provide a claim or persons defense whose religious exercise is substantially burdened govern- §2000bb(b). ment.” prohibits RFRA “[government” from “substantially bur- denting]” person’s a exercise of religion even if the burden results from a general rule of applicability unless govern- ment can “(1) demonstrate the burden is in furtherance (2) re- least is interest; and governmental compelling governmental compelling furthering that means strictive any applies mandate Act’s The §2000bb-l. interest.” (or official instrumentality, and agency, department, “branch, States,” law) United color acting under person other a State.” subdivision . . . or “State, any toas well ' confirmed coverage is 2000bb-2(l). universal Act’s The § and Federal all “applies RFRA 2000bb-3(a), which § under statu- law, whether implementation law, and State after or before adopted whether and otherwise, tory or usage of RFRA’s accordance enactment].” In [RFRA’s munici- local include law” “state use we shall term,

pal ordinances.

III A one Government Federal Constitution, our Under 4 Wheat. Maryland, v. McCulloch powers. enumerated (C. p. 292 No. Federalist (1819); also see 316, 405 authority to Madison). judicial 1961) (J. ed. Rossiter contro- in cases laws, constitutionality of determine leg- “powers that the premise versies, is based may limits those limited; defined are islature is written.” constitution forgotten, mistaken, (1803). 137, Madison, 1 Cranch Marbury v. enforce- Amendment Fourteenth its Congress relied far-reaching substan- enacting most in power ment require- impose its which those provisions, of RFRA’s tial Restoration Freedom Religious See States. on the ments (Senate (1993) pp. 13-14 103-111, Rep. No. 1993, S. of Act (House (1993) Report). p. 9 103-88, Rep. No. Report); H. R. part: relevant provides, Amendment Fourteenth The any law enforce or make shall State No 1. ... “Section of citi- immunities or privileges abridge the shall which deprive any State shall nor States; United zens proc- due without property, liberty, or life, any person of

517 ess of deny law; nor any person jurisdiction within its equal protection of the laws. “Section 5. power shall have to enforce, by appropriate legislation, provisions of this article.” parties disagree over whether proper RFRA is a exer- §5 Congress’ cise of power by “to “appropriate enforce” legislation” guarantee the constitutional that no State shall deprive any person “life, liberty, or property, without due process of deny any law,” nor person “equal protection of the laws.”

In defense respondent of the Act, Archbishop con tends, support with from the United States, that RFRA is permissible legislation. enforcement Congress, it is said, is only protecting by legislation one of the guaran liberties teed the Fourteenth Amendment’s Due Process Clause, the free religion, beyond exercise of what is necessary under Smith. It congressional is said the dispense decision to proof deliberate overt discrimination and instead concentrate on a law’s effects accords with the settled un § derstanding that 5 power includes the legislation to enact designed prevent, remedy, as well as constitutional viola tions. It is § 5 further Congress’ contended power is not limited preventive to remedial or legislation. §

All acknowledge must positive is “a grant legis power” lative Congress, Morgan, Katzenbach v. 384 U. S. (1966). 641, 651 parte Virginia, In Ex S.U. 345- (1880), explained § we scope Congress’ power following broad terms: legislation appropriate, “Whatever adapted that is, carry objects out the the amendments have view, whatever tends to enforce prohibitions submission to the they contain, and to persons secure to all enjoyment perfect equality rights of civil equal protec- and the tion of against the laws State or denial invasion, if not 518 of congres- domain within is brought

prohibited, power.” sional viola constitutional remedies deters which Legislation enforcement Congress’ of sweep within fall can

tions not which conduct it prohibits in the process if even power spheres into “legislative intrudes unconstitutional itself Fitzpat States.” reserved previously autonomy of example, (1976). For 445, 455 Bitzer, 427 U. S. rick v. voting similar tests literacy a suspension upheld Court enforce power parallel Congress’ under requirements Const., S.U. Amendment, see Fifteenth provisions discrimination racial to combat measure as a §2, 15, Amdt. 308 Katzenbach, S. U. 383 v. Carolina South voting, under tests constitutionality facial (1966), despite Elections, 360 U. S. County Bd. Northampton Lassiter v. pro measures other concluded also have (1959). We 45 to enforce power Congress’ within are rights voting tecting bur Amendments, despite Fifteenth Fourteenth Carolina South States. on placed measures those dens provisions several supra (upholding Katzenbach, v. supra Morgan, v. 1965); Katzenbach Act Rights Voting certain peo that prohibited tests literacy on ban (upholding Mitchell, Oregon v. voting); from Rico Puerto schooled ple lit on ban nationwide 5-year (1970) (upholding S.U. registering for requirements voting similar tests eracy 156, 161 States, S. 446 U. v. United Rome City vote); Act’s Rights Voting extension 7-year (1980) (upholding change any preclear jurisdictions certain requirement “ vot respect or procedure ‘standard, practice, ato Day, S. U. v. Breweries Everard’s James also ”); see ing’ intox prescription medical on ban (1924) (upholding Eighteenth enforce as appropriate malt liquors icating transportation sale, or manufacture, ban Amendment beverage purposes). liquors intoxicating congres- as the broad “[a]s however, true, also It is Oregon v. unlimited.” isit is, power enforcement sional

519 supra, Mitchell, at (opinion J.). of Black, In assessing § 5’s breadth of power, enforcement we begin with its text. Congress given has been power “to enforce” “provisions of this article.” agree We with respondent, of course, Congress can legislation enact § under 5 enforc ing the right constitutional to the free religion. exercise of “provisions of this §5 article,” to which refers, include the Due Process Clause of the Fourteenth Amendment. Congress’ power to enforce the Free Exercise Clause follows from our holding in Cantwell v. Connecticut, 310 U. S. 296, (1940), that the “fundamental concept liberty embod [the ied Fourteenth Amendment’s Due Clause] Process embraces the guaranteed liberties by the First Amend ment.” See also United Price, States v. 383 U. S. (1966)(there is “no power doubt of the Congress to enforce by appropriate criminal every right sanction guaranteed by the Due Process (in Clause of the Fourteenth Amendment” quotation ternal omitted)). marks and citation Congress’ power § under 5, only however, extends to “en- forcing]” provisions of the Fourteenth Amendment. The Court has power described this as “remedial,” South Carolina v. supra, Katzenbach, design 326. The § Amendment and the text of 5 are inconsistent with the sug-

gestion Congress power has to decree the substance of the Fourteenth Amendment’s restrictions on the States. Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Congress Clause. does not enforce a right by constitutional changing what the right is. It has given been power “to enforce,” not the power to determine what constitutes a constitutional viola- tion. Were it not so, what would enforcing be would longer no any be, meaningful “provisions sense, [the Amendment].” Fourteenth

While the line between measures remedy prevent or unconstitutional actions and measures that make a substan- change tive in the governing easy law is not to discern, and it determining where latitude wide have Congress must There observed. be must exists distinction lies, the in- between proportionality congruence must-be adopted to means remedied prevented jury to may be- legislation connection, a Lacking such end. our History and effect. and operation come substantive from apparent one distinction, drawing the support law case Amendment. of the text the reme- the history confirms Amendment’s Fourteenth The Enforcement the substantive, nature than

dial, rather 39th on Reconstruction Joint Committee The Clause. Fourteenth the become would drafting what began Congress Com- to the objections The January 1866. Amendment rejection the Amendment, and draft first mittee’s of defin- issue central bearing on direct a draft, have Republican February, In power. Congress’ enforcement ing following reported Ohio Bingham of John Representative behalf Representatives House to draft Amendment Committee: the Joint laws all make power have Congress shall “The secure proper necessary be shall which immunities privileges all State of each citizens persons in all States, several in the citizens lib- life, rights protection equal States several Sess., Cong., 1st 39th Globe, Cong. property.” erty, (1866). which opposition, immediate proposal encountered Con- Members days of debate. through three continued criticized spectrum political across gress from theme: common had a criticisms Amendment, and legislative much Congress too gave proposed Amendment structure. existing constitutional expense of the power at the Hale); id., at (statement Rep. g., id., at 1063-1065 E. (statement of Sen. Stewart); id., (statement at 1095 of Rep. Hotchkiss); id., (statement App. 133-135 of Rep. Rogers). Democrats and conservative Republicans argued proposed Amendment would give a power to in- trude into traditional areas of state responsibility, power inconsistent with the federal design central to the Constitu- tion. Typifying these views, Republican Representative Robert Hale of New York labeled the Amendment “an utter departure from every ever principle dreamed of men who framed our Constitution,” id., at 1063, and warned that under it “all State legislation, in its codes of civil and crimi- nal jurisprudence and procedure . . . may overridden, bemay repealed abolished, and the law of Congress estab- lished instead.” Ibid. Senator William Stewart of Nevada likewise stated the Amendment would permit “Congress legislate fully all upon subjects life, affecting liberty, property,” such that “there would not be much for left the State Legislatures,” and would thereby “work an entire in our change form of government.” Id., at 1082; accord, id., (statement at 1087 Davis); id., Rep. at (statement 133 App. of Rep. Rogers). Some radicals, like their brethren “unwill- ing that Congress shall have such any power ... to establish uniform laws the throughout United States . . . the upon protection of life, id., liberty, (state- at property,” 1095 ment of Rep. Hotchkiss), also objected giving Congress primary for responsibility enforcing legal would equality place in the power hands of changing congressional majori- ties, ibid. See Bickel, generally The Original Understand- and the ing Segregation Decision, 69 Harv. L. Rev. 571, (1955); Graham, Our “Declaratory” Fourteenth Amendment, 7 Stan. L. 3, (1954). Rev. As a result of these objections having been from expressed

so many different the quarters, House voted to table the pro- posal until e. B. See, April. g., Kendrick, Journal of the Joint Committee of Fifteen on Reconstruction 215, 217 (1914); Globe, Cong. 42d 1st Cong., Sess., (statement 115 (1871) App. seen was action Farnsworth). congressional The Rep. Nation, Mar. The See proposal. the marking defeat is amendment... of [it]”); (“The postponement p. 291 1866, 8, Times, York New passage against conclusive before comes ever this (“It if doubtful p. 4 1,Mar. Cong., 1st 42d Globe, Cong. .”); also see .. again House (The Farnsworth) Rep. (statement of App. 115 at Sess., postponement a quietus its “given was Amendment waking”). no knows sleep that slept it where months, two many members “chiefly because defeated was measure centraliza- dangerous a [it]... s[aw]in profession legal leading “many 291, and at supra, Nation, power,” The tion not would Representatives] [of th[e] House Republicans Cong. Constitution,” change radical so consent Rep. (statement of App. Sess., 1st Cong., 42d Globe, again was early form in its Garfield). Amendment drafting a began Committee Joint Instead, considered. reported to it Amendment, which article new 1866. April 30, self- imposed Amendment draft new 1 of Section prescribed Section States. on the executing limits by appropriate enforce, power have Congress shall “[t]he Globe, Cong. See article.” of this provisions legislation, Amend- revised Under Sess., at 1st Cong., 39th remedial. but plenary longer no power was Congress’ ment, substantive make power granted Congress was effective. States against prohibitions constitutional give Con- would draft new Bingham said Representative privi- law by national protect power ... “the gress . . . Republic citizens all leges immunities uncon- by the denied or abridged shall same whenever Representative Id., at any State.” acts stitutional “allowing] Amendment draft new described Stevens States.” legislation unjust to correct How- (statement of Sen. at 2768 id., also 2459. See Id., at enact shall the States Congress, in case ard) (§5 “enables

523 laws in conflict with the of the principles amendment, to cor- rect that legislation a by formal congressional enactment”). See H. generally Brannon, The Rights Guar- Privileges anteed Fourteenth Amendment to the Constitution of the United States (1901) (Congress’ “powers are only prohibitive, corrective, aimed at vetoing, only undue process of law”); id., at 420, 452-455 (same); T. Cooley, Constitutional (2d Limitations 294, 1871) (“This n. ed. amendment of the Constitution does not concentrate power in the general gov- ernment for any purpose police government within the States; its is to object preclude legislation by State any which shall ‘abridge privileges immunities of citizens of the ”). United States’ The revised Amendment proposal did not raise the concerns expressed earlier broad regarding congressional power uniform prescribe national laws with respect life, liberty, See, e. property. g., Globe, Cong. 42d Sess., 1st Cong., (statement at App. Garfield) Rep. (“The [Fourteenth limited Amendment] but did not oust the jurisdiction State[s]”). of the After revisions not relevant here, the new measure both passed and was Houses ratified 1868 as the Fourteenth July Amendment.

The significance the defeat of the was Bingham proposal apparent even then. the debates During over the Ku Klux Klan Act a few only after years the Amendment’s ratifica- tion, Representative James Garfield there lim- argued were its on Congress’ enforcement power, “unless saying we ig- nore both the and the history of these language we clauses cannot, by any reasonable interpretation, give [§ 5]... force and effect of the rejected Ibid.; clause.” [Bingham] id., see also (statement 115-116 App. Farnsworth). of Rep. Scholars of successive generations have agreed with this as- sessment. See H. Flack, of the Adoption Fourteenth Amendment 64 (1908); Bickel, The Voting Cases, Rights Ct. S. Rev. 79, 97. design Fourteenth Amendment has proved sig-

nificant also in maintaining traditional separation pow-

524 eight first Judiciary. The the Congress and between ers self-executing forth set Constitution the to

Amendments had has Court this and action, governmental on prohibitions Bing- The prohibitions. interpret those authority to primary tradition departed from thought, draft, some ham elabo- interpret and to power primary vesting in legisla- through Amendment new the-meaning the on rate judge to courts, was the not “Congress, it, Under tion. not were immunities or privileges any the not or whether supra, at Flack, States.” several the citizens to secured occasion not did aspect separation-of-powers this While propos- by the caused was which resistance widespread the the attracted nonetheless balance, it federal to threat al’s Cong., Globe,39th Cong. See Members. of various attention Hale) Bill (noting that Rep. (statement of 1064 Sess., at 1st safe- “provided] proposal, Bingham Rights, unlike be exercised courts, and by the enforced guards Rog- Rep. (statement of 133 App. id., Legislature”); by the entirely for left “was it proposal ers) Bingham (prior immunities privileges enforce ... courts citizens”). confers Amendment Fourteenth enacted, As pro- like which, States against rights substantive South Cf. self-executing. Rights, are ofBill visions (discussing Fif- at 325 S.,U. Katzenbach, v. Carolina Constitu- interpret the Amendment). power teenth Judiciary. in the controversy remains a in case tion enforce- Congress’ nature preventive remedial were power, in the inherent limitation power, and ment Amend- Fourteenth cases earliest in our confirmed (1883), 3 S.U. Cases, Rights Civil In the ment. Act of Rights Civil sections invalidated Court any per- denying to penalties criminal prescribed which con- public accommodations of” enjoyment full “the son power Congress’ it exceeded grounds that on the veyances, by seeking regulate to private conduct. The Enforcement Clause, the Court said, did not authorize pass to “general legislation upon rights of the citizen, but correc- legislation, tive that is, such as may be necessary and proper for counteracting such laws as the may States adopt or en- force, and which, by the they amendment, prohibited are from making or enforcing . . . Id., at 13-14. power to “legislate generally upon” life, liberty, and property, as opposed to the “power provide modes of redress” against offensive state action, was “repugnant” to the Constitution. Id., at 15. See also United States v. Reese, 92 U. S. 214, 218 (1876); United States v. Harris, 106 U. S. (1883); 629, 639 James v. Bowman, (1903). 190 U. S. 127, 139 Although the specificholdings of early these might cases have super- been seded or g., modified, see, e. Heart Atlanta Motel, Inc. v. United States, 379 (1964); U. S. 241 United States v. Guest, (1966), U. S. 745 their treatment § of Congress’ power as preventive, corrective or not definitional, has not been questioned. Recent cases have continued to revolve ques around the §5

tion whether legislation can be considered remedial. In South Carolina v. supra, Katzenbach, emphasized we “[t]he constitutional propriety [legislation adopted under the Enforcement Clause] must judged with reference the historical experience ... it reflects.” 383 S., U. at upheld There we provisions various of the Voting Rights Act finding 1965, them to be “remedies aimed at areas where voting discrimination has been flagrant,” most id., at and necessary blight “banish the of racial discrimination in voting, which has infected the process electoral in parts of our country for nearly a century,” id., at 308. We noted evidence in the record reflecting the subsisting pervasive discriminatory therefore —and unconstitutional —use of liter acy tests. Id., at 333-334. The Act’s new remedies, which used the administrative resources of the Federal Govern ment, included the suspension of both literacy tests and, in covered regulations voting new review, all federal pending examiners federal assignment aswell

jurisdictions, vote. listed enabling those applicants qualified list necessary given deemed were remedies unprecedented new, id., see laws, rights voting existing ineffectiveness case-by-case costly character slow, 313-315, id., at litigation, continued Court Katzenbach, the v. Carolina South After strong remedial using necessity of acknowledge the per- widespread to the respond measures preventive resulting from rights constitutional of deprivation sisting Oregon See discrimination. history racial of country’s this literacy test enacting (“In 132 S., at U. 400 Mitchell, v. discrimi- history of long ait before had Congress ... ban account voters disfranchise literacy tests of natory use (Literacy tests J.); 147 id., at Black, race”) of (opinion their of against weapon discriminatory aas times at used been “have Mexican of Americans but Negroes only minorities, not some J.); id., Douglas, Indians”) of (opinion American ancestry, and preju- racial that determined have could (“Congress 216 at literacy that Nation, throughout prevalent is dice application, discriminatory themselves unduly lend tests J.); id., Harlan, unconscious”) of (opinion conscious either legiti- could Congress that but question (“[T]here nois 235 at any- literacy tests of use concluded mately have of effect inevitable has States United within where in- whose minorities racial members vote denying previ- consequence direct tests such pass ability to education”) (opinion discrimination governmental ous literacy [suspension (“[Nationwide 284 J.); at id., Brennan, Con- when appropriate thought reasonably may be tests] which discrimination racial such evil an against acts gress coun- part every itself manifests degrees varying 182 atS.,U. Rome, 446 J.); City Stewart, (opinion try”) 7 another least at determination considered (“Congress’ counter necessary to were statutory remedies years perpetuation years of 95 pervasive voting discrimination is both unsurprising unassailable”); Morgan, 384 S.,U. at (Congress had a factual basis to conclude that New literacy York’s requirement “constituted an invidious dis- crimination in violation Equal Clause”). Protection

Any suggestion Congress has a substantive, non- remedial power under the Fourteenth Amendment is not supported by our case law. Oregon In v. supra, Mitchell, 112, majority of the Court concluded had ex- ceeded its powers by enforcement enacting legislation lower- ing the age minimum of voters from 21 to 18 in state and local elections. The five Members of the Court who reached this explained conclusion legislation that the intruded into an area reserved the Constitution to the States. See 400 U. S., at (concluding legislation that the was unconstitu- tional because the Constitution “reserves to the States the power qualifications to set voter elections”) in state and local (opinion J.); of Black, id., at 154 (explaining that the “Four- teenth Amendment was never intended to restrict the au- thority of the States political to power allocate their they as fit”) see (opinion J.); of Harlan, id., at 294 (concluding that Congress, States, not power have the qualifi- “to establish a voting cation for based on age”) (opinion joined J., Stewart, by Burger, J.). J., C. and Blackmun, Four these five were explicit rejecting § in position the that Congress 5 endowed power with the to meaning establish the of constitutional provisions. (opinion id., See J.); at 209 of Harlan, id., at 296 J.). (opinion of Stewart, rejection Justice Black’s po- of this might sition be inferred disagreement from his with Con- gress’ interpretation Equal Protection Clause. See id., at 125. language

There is in opinion our in Morgan, Katzenbach v. (1966), 384 U. S. 641 which interpreted could be as acknowl- edging power Congress in to legislation enact expands that Amendment. § Fourteenth the 1 of in contained rights

the even or however, interpretation, necessary not a This constitution considered Court Morgan, In one. best pro which Rights Act §4(e) Voting ality of completed successfully had who person no that vided school private aor in, school public ain grade primary sixth which in Rico Puerto by, the Commonwealth accredited be could English than other was instruction language inability to read anof because vote to right denied hand, other Constitution, on York’s New English. write The English. write read to able be voters required conclusion its for rationales related two provided Court Puerto for secure a measure 4(e) viewed “be § could nondiscriminatory York New residing in community Rican ra first Under 652. at Id., government.” treatment denying from York New prohibit could Congress tionale, commu Rican Puerto itsof segments large vote right to political “enhanced Ricans Puerto give order nity, in nondiscriminatory gaining in “helpful be would power” com Rican Puerto entire public services in treatment re aas justified 4(e) could thus Section munity.” Ibid. governmental “discrimination deal measure medial alternative an rationale, second 653. Id., at services.” provision discrimination address holding, did establishing voter “discrimination but services public a factual perceived Court Id., qualifications.” New concluded have could which basis dis invidious an “constituted requirement literacy York’s Clause.” Protection Equal violation crimination § 4(e) rested upholding rationales Both at Id., Congress’ York by New discrimination unconstitutional ex Stewart Justice As it. combat attempt reasonable interpreting supra, Mitchell, Oregon v. plained the Consti interpret power Congress give Morgan to deci extension enormous an require “would tution rationale.” sion’s

If Congress could define its powers own by altering the Fourteenth Amendment’s meaning, no longer would the Constitution “superior paramount law, unchangeable by ordinary means.” It would be “on a level with ordinary leg- islative acts, and, like other acts, . . . alterable when the legislature please shall to alter it.” Marbury v. Madison, 1 Cranch, at 177. Under approach, this it is difficult to con- ceive of a principle that would congressional limit power. See Alstyne, Van The Failure of Religious Freedom Res- toration Act under Section 5 of the Fourteenth Amendment, 46 Duke L. (1996). J. 291, 292-303 Shifting legislative ma- jorities change could the Constitution and effectively circum- vent the difficult and detailed process amendment contained in Article V.

We now turn to consider whether RFRA can be consid- ered legislation enforcement §5 under of the Fourteenth Amendment.

B Respondent contends that RFRA is a proper exercise Congress’ preventive remedial or power. The Act, it is said, is a reasonable means of protecting the free exercise of reli- gion defined prevents Smith. It and remedies laws which are enacted with object unconstitutional of target- ing religious practices. beliefs See Church Lukumi Aye, Babalu Inc. v. Hialeah, (1993) (“[A] 508 U. S. 520, 533 law targeting religious beliefs as such permissible”). is never To avoid the difficulty proving such violations, it is said, Congress simply can any invalidate law imposes which a sub- stantial burden on practice justified unless it is by a compelling interest and is the least restrictive means accomplishing that interest. If prohibit can laws with discriminatory effects in order prevent racial dis- crimination in violation of the Equal Protection Clause, see Fullilove v. Klutznick, (1980) 448 U. S. 448, 477 (plurality opinion); City Rome, 446 U. S., at 177, then it can do the respondent same, argues, promote religious liberty.

530 reme- appropriate sometimes are rules preventive While the between congruence a be must there measures,

dial The appropriate- achieved. be ends the and used means the of in light considered be must measures remedial of ness Katzenbach, 383 v. Carolina South See evil presented. one address appropriate measures Strong 308. S., at U. lesser another, response unwarranted an may harm Id., at one. Act Rights Voting the RFRA between A comparison confronted which record the contrast In instructive. is cases, rights voting the in Judiciary the in- modern of examples lacks record legislative RFRA’s reli- of because passed laws applicable of generally stances de- country this in of persecution history The bigotry. gious the occurring episodes no mentions hearings the tailed Act Restoration Freedom Religious e. See, g., 40 years. past on Subcommittee before 2797 R.H. on Hearings 1991, of on Committee House Rights Constitutional Civil (statement (1993) Sess., 331-334 2d Cong., 102d Judiciary, Free- Religious Hearings); (House Laycock) of Douglas Senate before on S. Hearing Act, Restoration dom 30-31 Sess., 2d Cong., 102d Judiciary, on Committee id., Hearing); (Senate Oaks) H. Dallin (statement (1993) Freedom Religious Laycock); Douglas (statement 68-76 before R.H. on Hearing ofAct Restoration Rights Constitutional on Civil Subcommittee Sess., 49 2d Cong., 101st Judiciary, on Committee House House Jr.) (1990 Buchanan, H. John (statement (1991) from stems episodes recent more absence Hearing). persecu- “deliberate testified, witness one that, fact Hear- House country.” this usual problem tion House also See Laycock). Douglas (statement ings have practices targeting directly (“[L]aws Report emphasis Rather, rare”). increasingly become in- which place applicability of general laws onwas hearings cen- discussion Much religion. burdens cidental

531 upon tered anecdotal evidence of autopsies performed on Jewish individuals and Hmong immigrants in violation of their religious beliefs, see, g., e. (state- House Hearings 81 ment of Strossen); Nadine (statement id., at 107-110 of Wil- (statement liam Yang); id., at 118 of Rep. Stephen Solarz); J. (statement id., at 336 Douglas of Laycock); Senate Hearing (statement 5-6, 14-26 of William Yang); (state- id., at 27-28 ment of Hmong-Lao Unity Inc.); (statement Assn., id., at 50 Baptist of Joint Committee); see also Report Senate 8; House Report 5-6, and n. and on zoning regulations and historic preservation (like laws the one here), at issue which, as an incident of their operation, normal have adverse effects on churches and synagogues. g., See, e. House Hearings 17, 57' (statement of Robert Dugan, P. Jr.); (statement id., at 81 Strossen); Nadine (statement id., at 122-123 Rep. Stephen Solarz); J. (statement id., at 157 of Edward Jr.); M. Gaffney, (statement id., at 327 of Douglas Laycock); Senate Hearing (statement 143-144 of Forest D. Montgomery); 1990 House (statement Hearing 39 of Robert Dugan, Jr.); P. see also Sen- ate Report 8; House Report 5-6, and n. 14. It is difficult maintain to. they examples are legislation enacted or enforced due to animus or hostility to the burdened practices or that they indicate some widespread pattern of religious discrimination in this country. Congress’ concern was with the incidental burdens imposed, object not the or purpose legislation. See Report House 2; Senate Re- port (statement 4-5; House Hearings 64 Strossen); Nadine (statement id., at 117-118 Rep. Stephen Solarz); J. (statement House Hearing of Rep. Stephen Solarz). J. This lack of support legislative record, however, is RFRA’s most serious shortcoming. Judicial deference, most is cases, based not on the state legislative record Congress compiles but “on regard due for the decision of the body constitutionally appointed to decide.” Oregon v. Mitchell, 400 U. S., at (opinion J.). of Harlan, gen- As a method to determine is matter, it

eral decision. reach it will which record, RFRA legislative state Regardless if legislation, preventive remedial, considered be cannot so out meaning. RFRA any to have are terms those object that preventive remedial supposed ato proportion designed to to, or responsive understood cannot it instead, to appears, It behavior. unconstitutional prevent, protections. change in constitutional substantive a attempt may types laws of certain prohibiting measures Preventive many to believe reason is there when appropriate be a have enactment congressional by the affected laws of City See being unconstitutional. of of likelihood significant demon awith (since “jurisdictions atS.,U. Rome, 446 create . . . discrimination racial history intentional of strable “pro could discrimination,” purposeful of risk those impact” in discriminatory a that have changes hibit § 5 “should under legislation Remedial jurisdictions). [Fourteenth] wrong which and mischief to the adapted against.” Civil provide to intended was [AJmendment atS.,U. Cases, 109 Rights its coverage ensures Sweeping confined. so is not RFRA and laws displacing government, of every level intrusion and description every almost actions official prohibiting apply restrictions RFRA’s subject matter. regardless local State, Federal, official agency and every 2000bb-2(1). applies § RFRA C. S.U. Governments. otherwise, whether statutory or law, state federal all 2000bb-3(a). § enactment. its after or before adopted mechanism. termination date no termination has RFRA any individual any time challenge at subject Any law exercise free or her his burden substantial alleges a who religion. other fromit distinguish scope RFRA reach even power, enforcement Congress’ under passed measures Katzen v. Carolina In South rights. voting the area re- those confined were provisions challenged bach, gions of the country voting where discrimination had been flagrant, most see 383 U. S., at 315, and affected a discrete class of state laws, i. e., voting state laws. Furthermore, to ensure that the reach of the Voting Rights Act was limited to those cases in which constitutional violations were most (in likely order to reduce possibility overbreadth), coverage under the Act would terminate “at the behest of political States and subdivisions in which danger of sub voting stantial discrimination has not during materialized the preceding years.” five Id., at provisions 331. The re stricting and banning literacy upheld tests, in Katzenbach v. Morgan, 384 (1966), U. S. 641 Oregon v. supra, Mitchell, particular attacked a type of voting qualification, one with a long history as a “notorious deny means to and abridge vot ing rights on racial grounds.” South Carolina v. Katzen bach, 383 U. (Black, S., at 355 J., concurring and dissenting). City In supra, Rome, rejected the Court challenge the constitutionality a Voting Rights provision Act which required jurisdictions certain to submit changes in electoral practices Department to the of Justice for preimplementa tion review. requirement placed was only jurisdic tions with a history of intentional racial discrimination in voting. Id., at provisions Like the at issue in South Carolina v. provision Katzenbach, this permitted a covered jurisdiction to avoid preclearance requirements under cer tain conditions and, lapsed moreover, years. seven This is say, not to § of legislation course, that requires termina tion dates, geographic restrictions, or egregious predicates. Where, congressional however, a enactment pervasively pro hibits constitutional state action in an effort remedy to or to prevent unconstitutional state action, limitations of this kind tend to Congress’ ensure proportionate means are to ends legitimate § under 5.

The stringent test RFRA demands of state laws reflects a lack of proportionality congruence or between the means adopted legitimate and the end to be achieved. objec- anIf tor can show a substantial burden on his free exercise, interest governmental compelling a demonstrate must

State fur- of means restrictive least law is that and show substantially bur- a law Claims thering interest. its be difficult often religion will of exercise someone’s dens (“What principle atS., 494 U. Smith, See contest. a believer’s to contradict bear brought logic be can law personal his act¡ ‘central’ is particular a assertion questions (“The between distinction faith?”); id., is admit- sincerity burden questions centrality and Re- judgment). concurring in J., tedly fine ...”) (O’Connor, compelling interest a demonstrate quiring State a means restrictive least adopted the it has show demanding known test the most is interest achieving that “ really means ‘compellinginterest’ If law. to constitutional [The . . test. . meet many will laws says ., . . it what required constitutionally prospect open test] would every almost obligations of civic exemptions from religious. Smith under valid Laws Id., at 888. kind.” conceivable they had regard to whether without RFRA under fall would make We exercise. free punishing stifling or object of major- position reargue the not to observations these its alteration substantive to illustrate but ity in Smith assuming would RFRA Even by RFRA. attempted holding say, one test, lesser some mandate interpreted in effect nevertheless scrutiny, the statute equivalent to intermediate law scrutiny of state judicial searching require would consider- This invalidation. likelihood the attendant pre- traditional States’ into intrusion congressional able health regulate for the authority to general rogatives citizens. their welfare practical exacts, both RFRA costs substantial States on the litigation burden heavy imposing a terms regula- general curtailing traditional their in terms of unconstitu- practice any pattern power, exceed tory far interpreted as Exercise Clause Free under conduct tional identify and designed to is not put, Simply RFRA in Smith. because likely be unconstitutional laws state counteract their treatment religion. In most cases, the state laws to which RFRA applies are not ones which will have been motivated religious bigotry. If a state law disproportion- ately particular burdened a class of observers, this circumstance might be evidence of an impermissible legisla- tive motive. Cf. Washington v. Davis, 426 U. S. 229, 241 (1976). RFRA’s substantial-burden test, however, is not even a discriminatory-effects or disparate-impact test. It is a reality of the modern regulatory state that numerous state laws, such as the zoning regulations at issue here, impose a substantial burden large on a class of individuals. When the exercise of religion has been burdened an way incidental by a general law of application, it does not follow that the persons affected have been burdened any more than other citizens, let alone burdened because of their religious beliefs. In addition, the Act imposes every case a least restrictive requirement means requirement —a that was not used in the pre-Smit/i jurisprudence RFRA purported codify —which also indicates that legislation is broader than appro- priate if the goal is prevent and remedy constitutional violations. When Congress acts within sphere its power and re- sponsibilities, it just has not right but duty to make

its own informed judgment on the meaning and force of Constitution. This has been clear from the early days of the Republic. In 1789,when a Member of the House Repre- objected sentatives to a debate on the constitutionality legislation based on the theory that “it would be officious”to consider the constitutionality of a measure that did not affect the House, James Madison explained that “it is incontrovert- ibly of importance much to this branch of the Government as to any other, that the constitution preserved should be entire. It is our duty.” 1 Annals of Congress (1789). Were it otherwise, we would not afford pre- sumption of validity its enactments now enjoy. Our experience national teaches that the Constitution is preserved best part when each respects Government

536 determina- and actions proper the and Constitution the

both inter- has Court the When branches. other the of tions province the within acted has it Constitution, the preted say what duty to the embraces Branch, which Judicial the When 177. Cranch, Madison, Marbury v. is. law the the against act Government of the branches political the Constitution interpretation judicial aof background and cases later understood be must issued, it already the precedents its treat will Court the controversies including stare principles, settled under them due respect disappointed. must expectations contrary and decisis, such controversies, and cases control designed to was RFRA federal the provisions the as but us; before one the as authority, congressional beyond are invoked here statute control. must which RFRA, not precedent, Court’s is this it ^{[*] [*] [*]} “determin[e] instance first the Congress It is guaran- secure needed is legislation what whether are conclusions its Amendment,” Fourteenth tees Morgan, v. Katzenbach deference. much entitled unlimited, how- is discretion Congress’ at S.,U. since they have as power, retain courts ever, exceeded has Congress if to determine Madison, Marbury v. power Broad the Constitution. authority under its Fourteenth Clause Enforcement under is necessary to principles vital contradicts Amendment, RFRA balance. federal powers separation maintain consti- sustaining Act’s Appeals Court judgment tutionality reversed. is ordered. sois It concurring. Stevens, Justice . ofAct Restoration Freedom Religious opinion, my In reli- establishment an respecting (RFRA) a “law Constitution. Amendment First violates gion” that If the historic landmark on the hill in Boerne happened to be a museum or an gallery art by owned an atheist, it would not be eligible for an exemption from city ordinances that forbid an enlargement of the structure. Because the landmark is by owned the Catholic Church, it is claimed that gives RFRA its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law. Whether the Church would actually prevail under the stat- ute or not, the statute provided has the Church with legal weapon that no atheist agnostic can obtain. govern- This preference mental for religion, opposed to irreligión, is forbidden the First Amendment. Wallace v. Jaffree, 472 U. (1985). S. 38, 52-55 Scalia, with whom Justice Justice joins, Stevens

concurring in part. I write respond briefly to the claim of Justice O’Con- (hereinafter nor’s dissent dissent) that historical materi als support a result contrary to the one reached in Employ ment Div., Dept. Human Resources Ore. v. Smith, 494 (1990). U. S. 872 post, See p. 544 (dissenting opinion). We held in Smith that the Constitution’s Free Exercise Clause “does not relieve an individual of the obligation to comply with a ‘valid and neutral general law applicability on the ground that (or the law proscribes prescribes) conduct religion his prescribes (or proscribes).’” 494 U. S., at 879 (quoting United States Lee, v. 455 (1982) U. S. 252, 263, n. 3 J., concurring in judgment)). The material that (Stevens, the dissent claims is at odds with Smith either has little say about the issue or is in fact more consistent with Smith than with the dissent’s interpretation of the Free Exercise Clause. The dissent’s extravagant claim that the historical record shows Smith to have been wrong should be compared with the assessment of the prominent most scholarly critic of Smith, who, after an extensive review of the historical record, was willing to venture no more than that “constitu- applicable generally [from exemptions compelled

tionally contemplation within were conduct] regulating laws interpretation aas possible ratifiers framers Histori- Origins McConnell, The clause.” exercise free Harv. Religion, Exercise Free Understanding cal Ham- also added); see (1990) (emphasis Rev. L. An Exemption: Religious Right Constitutional A burger, (1992) Rev. Law Wash. Geo. Perspective, Historical interpre- Smith’s supports evidence historical (arguing exercise). free tation of interpretation Smith’s that claims first dissent The re- understanding from departs Clause Exercise Free of protections constitutional statutory various flected Territories States, and Colonies, by enacted religion of Rights. Bill of ratification leading up period en- those by afforded the protections But at 550-557. Post, interpreta- Smith’s with consistent more in fact are actments of understanding dissent’s with than exercise free tion best "is claims, dissent Clause, Exercise Free it. to partic- the right guarantee affirmative anas understood impermissi- without conduct practices in religious ipate con- conduct such when interference, even ble governmental thus, even law”; applicable neutral, generally awith flicts if they invalid may application of general laws neutral How- Post, at conduct. motivated religiously burden dis- by cited enactments exercise” “free early ever, the “in or “for” is taken that action only against sent protect Concern- Act (Maryland 551-553 at post, religion, of” respect New 1663, and Charter Island Rhode 1649, Religion ing re- of” account “on taken Constitution); action or Hampshire Rights Declaration (Maryland 553-554 at post, ligion, “discriminat[ory]” or 1787); Ordinance Northwest (and or, finally Constitution); (New York at action, post, exercise” “free of interpreting for purposes unhelpfully interferes Constitution), action the Federal Act (Maryland at post, of religion, exercise” “free Concerning of 1649 Religion Constitution). Georgia It eminently arguable application of neutral, generally applicable laws of the sort the dissent refers to—such as zon- laws, ing post, 547—would not constitute action taken “in “for,” of,” or respect “on account of” one’s religion, action. “discriminatory” however,

Assuming, the affirmative protection accorded religion “free early exercise” enactments sweeps as the broadly dissent’s theory would require, those enactments do support dissent’s view, since contain they “provisos” that significantly the affirm qualify ative protection they grant. to the According dissent, its “provisos” support view because they would have been if “the Court was “superfluous” correct in Smith that gener ally applicable laws are enforceable regardless of religious Post, conscience.” at 554-555. I In disagree. fact, most plausible reading (if “free exercise” enactments their affirmative are read provisions as the broadly, dissent’s view is a requires) virtual Smith: restatement ex Religious ercise shall be as it so long does not violate general permitted laws conduct. governing in the “provisos” enactments a license to in negate act a manner “unfaithfull the to Lord Act Proprietary” (Maryland 1649), or Concerning of Religion in “behavfe]” other than a “peaceabl[e] and manner quie[t]” (Rhode Island Charter of 1663), or “disturb the public peace” (New Hampshire Constitution), or interfere with the “peace (New of [and] State” safety York, th[e] Maryland, Georgia Constitutions), or in oneself other a “demea[n]” than “peace (Northwest able and manner” 1787). orderly of Ordinance See at 551-554. At post, the time these were provisos enacted, and “order” keeping “peace” seems to meant, have the laws. precisely, obeying breach of a law is “[E]very Queen Lane, the v. against 128, 87 6 Mod. peace.” Eng. Rep. 1704). 884, 885 B. Even as late as 1828, when (Q. Noah Web ster his American published Dictionary Lan English he as one of the of gave Public guage, “8. meanings “peace”: 540 guaran security which order quiet, that

tranquility; peace.” the break to peace; keep the toas, laws; by the teed Language English Dictionary of American 2 An religious exercise scope of upon the limitation (1828).1 This phi political background with in accord been have would John prominently (associated most age losophy of only do “to right freedom regarded Locke), which Against Case The West, lawfully prohibited,” was what L., J. Dame 4 Notre Exemptions, Religion-Based Right to disturb-the- (1990). “Thus, the Pol’y 591,624 Pub.& Ethics deny re government permitted apparently caveats peace force, or violence of event merely in freedom, not ligious illegal actions.” of occurrence upon the generally, but, more in this while, under And 918-919.2 supra, at Hamburger, support enactments exercise” early “free these terpretation, interpreta sensible no see Smith, I judgment Court’s I understand what support them cause could tion other any of Smith’s or of O’Connor, position be Justice knowledge, contends my camp, to one No critics. conforms test interest” state “compelling favored their peace and of “breach of interpretation possible any cate any other or force, violence only e., that order”—i. law”) which (more “violation than limited action gory of order,” “peace and phrase conveyed possibly can conduct. motivated religiously prohibition state justifies enactments, likewise early several “licentious,” used word Dictionary American 2 An of law.” limits “[exceeding meant (1828). Language English draft initial Mason’s George course, applies, explanation same “un said itWhen at 555. clause, post, see liberty Virginia’s it society,” ... peace disturb man any religion, colour less, under law.” break any man religion color under “unless meant probably formula Madison’s [James] Mason’s “both ease Thus, not it is exer religious [between conflict was a that, there when envisioned tions freely practicing interest laws], person’s applicable generally cise at 556—at interests,” post, state against be balanced towas religion his was concerned. of conduct regulation as insofar least Apart from early “free exercise” enactments of Colo- nies, States, and Territories, the dissent calls attention to those bodies’, and the Congress’s, Continental legislative religious accommodation of practices prior to ratification of the Bill Rights. Post, at 557-560. This accommoda- place tion—which took both before and after enactment of the state protections constitutional religious liberty sug-— gests dissent) (according to the that “the drafters and ratifi- ers of the First Amendment... assumed courts apply would the Free Exercise Clause similarly.” Post, at 560. But that legislatures (though sometimes always)3 “appro- found it priate,” post, at 559,to accommodate practices does not establish that accommodation was understood to be constitutionally by mandated the Free Exercise Clause. As explained we say Smith, “to that a nondiscriminatory religious-practice exemption permitted, or even that it is desirable, is say not to that it is constitutionally required.” 494 S.,U. at 890. protected “Valuesthat against are govern- ment through interference enshrinement Rights ofBill thereby are not banished from political process.” Ibid. The dissent’s final source of claimed support historical con- sists of statements of certain of the Framers in the context proposed debates about legislative enactments or debates (not general over principles in connection drafting with the Constitutions). of State or Federal Those statements are subject objection the same was leg- evidence about islative accommodation: There is no reason they to think were meant to describe what was constitutionally required (and enforceable), judicially as opposed to thought what was legislatively morally or even desirable. Thus, for example, pamphlet by written opposing James Madison Virginia’s proposed general support assessment for of reli- 3The mentions, dissent example, 7 of only the IS had Colonies exempted Quakers from military mid-1700’s; service and that “vir tually all” of the States had Post, enacted oath exemptions by 1789. added). 558 (emphasis assessment the that argue not does 560-561, post, at

gion, Virginia the provision exercise” “free the violate would been had provision although that Rights, of Declaration rather 556; at post, earlier, years eight only law into enacted placed wrongly assessment the that argues pamphlet the thus, and, religious belief personal society ahead civil at 560-561. post, legislators, by the approved be not should the Quak- to Washington George from letter the Likewise, Washington’s to refers terms by own its 562, post, at ers, his be- not accommodated, be religion that desire” “wish accom- required provisions existing constitutional that lief by dissent the offered examples other These modation. relationship “proper” the views speakers’ reflect their not 563, but post, at religion, government between mate- context or content (at as insofar least views relationship. required constitutionally suggests) rial that Jefferson by Thomas statement is exception one inter- States the United government “the considered he intermeddling with from by the Constitution dicted institutions, at post, exercises,” discipline, or doctrines, their quite clear omitted); isit but marks (internal quotation principle broad espouse fact did not Jefferson Mc- dissent, see by the advocated accommodation affirmative 1449-1452. Rev., at L. Harv. Connell, 103 by made point telling most me seems It fails it in what says, but it what found, not to be dissent surrounding period understanding in say. Had the various Rights been Bill ratification con- were by the dissent discussed accommodation forms Constitutions (either by State required stitutionally find surprising Constitution), would it Federal generally a enforce refusing to case or federal single state accommoda- make failure itsof because statute applicable knowledge, and my none—and cites dissent theYet tion. dissent’s defenders the academic knowledge of to the early (discussing 1506-1511 id., g.,e. see, position, cases), none exists. The closest one can come period in the prior to 1850is the decision of a New York City municipal court in 1813, holding that the New York Constitution of quoted 1777, post, at required 553, acknowledgment of a priest-penitent privilege, protect a priest Catholic from being compelled to testify as to the contents of a confession. People v. Phillips, Court of General City Sessions, of New (June York 1813), 14, excerpted in Privileged Communica tions to Clergymen, 1 (1955). Cath. Law. 199 Even this lone case is weak authority, not only because it comes from a minor court,4 but also because it did not involve a statute, and the same might result possibly (with have been achieved out invoking entitlement) constitutional by the court’s simply modifying the common-law rules of evidence to recognize such a privilege. On the other side of the ledger, moreover, there are two cases, from Supreme Court of Pennsyl flatly vania, rejecting the dissent’s view. In Simon’s Execu tors v. Gratz, (Pa. 2 Pen. & W. 1831), the court held that litigant was not entitled to a continuance of trial on the ground that appearing on his Sabbath would violate his reli gious principles. And in Stansbury v. Marks, 2 Dall. 213 (Pa. 1793), just decided years two after the ratification of the Bill of Rights, the court imposed a fine on a witness who “refused to be sworn, because it was his Sabbath.”5

-I have limited response this to the new items of “historical evidence” brought forward today’s (The dissent. dis-

4The Court of General Sessions was a mayor’s court, and the ruling in Phillips was made by DeWitt Clinton, the last mayor to preside over that court, which was subsequently reconstituted as the Court of Common Pleas. Clinton had never been a jurist, and indeed had never practiced law. Some years before Phillips, he was instrumental in removing the political disabilities of Catholics in New York. See 4 Dictionary of Ameri- can Biography 221-222, (1943). 5Indeed, the author of Simon’s Executors could well have written

Smith: “[C]onsiderations of policy address themselves with propriety to the legislature, and not ato magistrate whose course is prescribed not by discretion, but rules already established.” 2 Pen. W.,& at 417. cases exercise free our “[bjefore Smith, that claim

sent’s post, view, dissent’s with keeping” generally were itself.) historical in Smith answered adequately is fairly said be cannot dissent by the marshalled evidence sup- more it Smith; but correctness demonstrate And, it.of destructive than conclusion portive com- is not evidence earlier, that made I point ato return been has with familiar theory I am any patible approach dissent’s Smith. alternative as an proposed possibly canWho popular attraction. great course, has, should government proposition abstract against un- place nondiscriminatory laws, general, in its even not, Unfortunately, practice? religious upon burdens reasonable re- ultimately be must proposition abstract that however, is, by Smith presented issue cases. concrete to duced rep- elected their through people, the simply, whether quite outcome the control Court, shall this rather resentatives, determi- the it be example, shall For cases. concrete those (as the whether people, of the rather Court, or this nation 547) construc- church post, believes, apparently dissent evi- historical zoning laws? exempt from bewill tion undermine nothing to does dissent the put forward dence people. the shall It in Smith: reached we conclusion joins Breyer whom O’Connor, with Justice Justice dissenting. I, of Part paragraph first except agree I case. of this disposition Court’s from dissent I Reli whether isus before issue Court (RFRA) proper ais of Act Restoration gious Freedom § Fourteenth of the enforce power Congress’ exercise measuring constitu for yardstick a asBut Amendment. Employ holding its uses Court RFRA, tionality Smith, 494 v.Ore. Resources Human Dept. Div., ment Congress prompted (1990), decision S.U. enforcing the rigorously more means aas RFRA enact was Smith view of the I remain Clause. Exercise Free wrongly decided, I and would use this case to reexamine the holding

Court’s there. Therefore, I would direct parties question brief the whether represents Smith the correct understanding of the Free Exercise Clause and set the case reargument. If the Court were to correct the misinter- pretation of the Free Exercise Clause set forth in Smith, it would simultaneously put our First jurispru- Amendment dence back on course and allay legitimate concerns of a majority Congress who believed that Smith improperly restricted liberty. We would then position be in a to review in light RFRA of a proper interpretation of the Free Exercise Clause.

I agree I with much of the reasoning set forth in Part III-A opinion. Court’s agreed Indeed, if I with the Court’s standard in Smith, I join would opinion. As the Court’s careful and thorough analysis historical Congress shows, lacks “power to decree the substance the Fourteenth Amendment’s restrictions on (em the States.” Ante, at 519 added). phasis power Rather, § 5 its under of the Four teenth Amendment only extends enforcing the Amend provisions. ment’s In short, lacks the ability independently to expand define or scope of constitutional rights by statute. Accordingly, whether has ex § ceeded powers its 5 turns on whether there “congru is a ence and proportionality between injury prevented to be or remedied adopted means to that Ante, end.” at recognition This not, does any way course, in dimin Congress’ ish obligation to draw its own regard conclusions ing the meaning. Constitution’s Congress, no less than this Court, is upon called to requirements consider the Constitution and to act in accordance with its dictates. But when it legislation enacts in furtherance of its delegated powers, Congress must judgments make its consistent with this exposition Court’s of the Constitution and with the lim-

546 as such by provisions authority legislative its on placed

its Amendment. Fourteenth a constitutional is RFRA whether analysis of Court’s of its III-B Part forth §5 set power, Congress’ exercise correctly Smith assumption that on premised is opinion, assumption is an This Clause. Exercise Free interprets the Smith that believe I continue accept. not I do that exercise deciding free for improper standard adopted an Court—without this Members five Smith, In claims. Ex Free interpreted the argument briefing or issue— without prohibit, government permit Clause ercise religious individual’s by an mandated conduct justification, applicable. generally is prohibition long so beliefs, however, case, in that holding the Court’s Contrary to antidiscrimination simply an Clause Exercise Free single that laws against those only protects principle See treatment. unfavorable religious practice out judg concurring in J., 892-903 supra, at Smith, ment). (O’Connor, affirma anas understood is best Clause Rather, the prac participate right to guarantee of tive governmental impermissible without and conduct tices a neu with conflicts conduct such when interference, even exer Smith, our free Before law. applicable generally tral, where this idea: keeping with generally were cases cise conduct— motivated religiously substantially burdened law religion targeted at specifically it was regardless whether justify government required generally applied —we nar means use and to interest state compelling a law 894 S., U. 494 See interest. achieve rowly tailored (1989); 699 680, Commissioner, 490 U. S. (citing v. Hernandez 480 U. S. Fla., Appeals Comm’n Unemployment v. Hobbie 257-258 252, S. Lee, U. (1987); v. States United 136, (1978);Wis 626-629 618, S. Paty, U. (1982); v. McDaniel (1972); v. United Gillette S.U. Yoder,406 v. consin 374 U. S. Verner, (1971); v. Sherbert 437, S. States, 401 U. (1963)). rejection Court’s principle this in Smith sup ported by precedent neither nor, as discussed by below, his tory. The decision has harmed liberty. For exam ple, a Federal District Court, in reliance on Smith, ruled that the Free Exercise Clause was not implicated Hmong where objected natives religious grounds on to their autopsy, son’s pursuant conducted to a generally applicable state law. Yang v. (RI Sturner, Supp. 1990). 750F. 558,559 The Court of Appeals Eighth for the Circuit held that application of a city’s zoning prevent laws to a church from conducting serv ices in an area zoned for commercialuses raised no free exer cise concerns, though even city permitted secular not- for-profit organizations in that area. Cornerstone Bible Hastings, Church v. (1991); 948 F. 2d 464 see also Rector of St. Bartholomew’s Church v. New York, 914 F. 2d 348, 355 (CA2 1990) (no free exercise claim city’s where application of facially neutral designation landmark “drastically law re stricted the ability Church’s to raise revenue carry out its various charitable and programs”), ministerial cert. denied, (1991); 499 S.U. State v. Hershberger, 462 N. W. 2d 393 (Minn. 1990)(Free Exercise provided Clause no basis for ex empting an Amish farmer from displaying bright a orange triangle buggy, his to which objected farmer on re ligious grounds, though even the evidence showed that some other material would have served the State’s purpose well). equally These cases demonstrate that lower courts applying longer Smith no find necessary searching judi cial inquiry into the possibility of reasonably accommodating religious practice. Stare decisis prevent concerns should not us from revis

iting our holding ‘“[S]tare Smith. decisis is a principle policy and not a mechanical formula of adherence to the latest decision, however recent questionable, when such adherence involves collision prior with a doctrine more em bracing scope, in its intrinsically sounder, and verified ” experience.’ Adarand Constructors, Inc. v. Peña, 515U. S.

548 106, S. Hallock, 309 U. Helvering v. (1995)(quoting 231

200, constitu in true particularly is principle (1940)). This 119 illustrates —“cor plainly so case this where—as cases, tional impossible.” practically is action legislative through rection (1996) 63 44, S.U. 517 Florida, Fla. v. Tribe Seminole of omitted). I believe citation and marks (internal quotation tradition Nation’s our precedent our both light in that, More wrong. demonstrably is liberty, Smith religious engendered not has such, it As decision. recent aisit over, would that application continued its on reliance kind Parenthood Planned Cf. overruling it. against militate (1992). 833, 855-856 S.U. Casey, 505 v. Pa. Southeastern hold- our reexamine should we that believe I Accordingly, I place, its In very case. this inso do Smith, and ing in justify government requires that rule ato return would conduct motivated religiously burden any substantial only burden impose interest state compelling a interest. achieve narrowly tailored by means opinions, other in said been has what restate not II I shall with odds gravely is Smith demonstrated have which Lu Church See precedents. exercise free earlier our 520, 570-571 S. U. Hialeah, 508 v. Aye, Inc. Bdbalu kumi judg concurring in part concurring in (1993) (Souter, J., conclusion escape the “difficult it ment) (stating that com include not they do virtues, Smith’s whatever that, 894-901 S., at U. law”); Smith, settled with fit fortable McConnell, also see judgment); concurring J., (O’Connor, Decision, Smith Revisionism Exercise Free examine Rather, I (1990). 1109, 1120-1127 Rev. L. U. Chi. exercise free tradition early American here Free understanding of original insight into gain un did Smith Court inquiry Clause—an Exercise importance recognized previously haveWe dertake. history. their light Clauses Religion interpreting (“The (1984) Court’s S.U. Donnelly, 465 v. Lynch interpretation of the Establishment comported Clause has history what reveals was the contemporaneous under- standing guarantees”); of its School Abington Dist. Town- ship Schempp, v. (1963). 374 S. 203, U. 212-214

The historical evidence casts doubt on the Court’s current interpretation of the Free Exercise Clause. The record instead reveals that its drafters and likely ratifiers more viewed the Free Exercise Clause guarantee as a govern- may ment not unnecessarily hinder believers freely from practicing religion, their position a consistent pre- with our jurisprudence. Smith

A original Constitution, drafted in 1787 by and ratified the States provisions 1788,had no safeguarding individual liberties, such as speech freedom of religion. Federalists, the chief supporters of the new Constitution, took the view that amending the Constitution to protect explicitly individ- ual freedoms superfluous, was since rights the the amendments protect would already were completely secure. g., See, e. 1 Annals Congress (Gales 440, 443-444, 448-459 1834) (remarks and Seaton ed. of James Madison, June 8, 1789). they Moreover, feared that guaranteeing certain civil might liberties backfire, since express mention of some might freedoms imply that others protected. were not According to Alexander Hamilton, a Rights Bill of would dangerous, even be specifying exceptions “various powers” granted, it “would afford a pretext colorable to claim more granted.” than were The Federalist No. (C. p. 1961). 513 Rossiter ed. Anti-Federalists, however, in- sisted on more guarantees. definite Apprehensive that the newly established Federal Government would overwhelm rights of States and individuals, they explicit wanted assurances that the Federal Government power had no personal matters of liberty. Curry, T. The First Freedoms: Church and State in America Passage to the of the First (1986). Amendment 194 Additionally, Baptists and other Protestant dissenters feared for religious their liberty under amendment an called Government Federal new 198. Id., at freedom. religious guaranteeing By De- demands. to these acceded legislators end, In Consti- to the added been Rights had Bill of 1791,the cember Amend- First liberty, the religious respect to With tution. an respecting lawno make shall “Congress provided: ment exercise free prohibiting religion, or establishment Con- First Neither Amdt. Const., S.U. thereof.” ques- debated legislatures ratifying state nor gress directly they did detail, nor in much freedom tion exercise free Amendment’s First scope of consider Fram- say that disingenuous It would protection. Exer- Free scope of the precisely to define neglected ers precise had exercise” “free words because Clause cise His- Constitutional American Essays on Levy, meaning. L. terms the of a number case (1972). is the As tory 173 the what exactly clear not it is Rights, of Bill in used (“[I]t is aston- Ibid. signified. phrase thought Framers was Rights of Bill aon debate that discover ishing to convey the vague toas so abstraction of a level on conducted only most had of 1787-1788 Americans that impression rights particular meanings conception nebulous supple- sources insure”). variety of a But sought they original light on the shed history and legislative ment materi- These Clause. Exercise Free understanding not did Framers contrary to Smith—the suggest als that — laws adopting from government prevent simply intend Framers Although the religion. against discriminated that religious about questions precisely asked may have that indicates record today, historical do liberty we that protects affirmatively Constitution they believed government’s it limits exercise free religious practice. religious on intrude

ability to B notion exercise” religious “free principle by no were protection legal liberty deserved means new concepts 1791, when the Bill of Rights was ratified. To the these contrary, principles were first articu- lated in this in the country Colonies of Maryland, Rhode Island, Pennsylvania, Delaware, and Carolina, in the mid- 1600’s. These Colonies, though established as sanctuaries for particular groups religious dissenters, extended free- dom of religion often groups although limited Chris- — tian groups beyond their own. Thus, they — encountered early the conflicts that arise may in a made society up plurality faiths.

The term “free exercise” appeared an American legal document as early 1648, when Lord Baltimore extracted from the new Protestant Governor of Maryland his councilors a promise not to disturb Christians, particu larly Roman Catholics, in the “free exercise” of their religion. McConnell, The Origins Historical Understanding Free Exercise of Religion, Harv. L. Rev. 1409, 1425 (1990) (hereinafter Origins Exercise). Free Soon after, in 1649, the Maryland Assembly enacted the first free exercise clause the Act passing Concerning Religion: “[N]oe . . . person professing beleive in Jesus Christ, shall from henceforth bee waies any troubled, Molested or discountenanced for or respect his or her nor religion in the free exercise thereof . . . nor any way [be] compelled to the beleife or exercise of other any Religion against his or her consent, soe be not they unfaithfull to the Lord or Proprietary, molest or conspire against the civill Governemt.” Act Concerning Religion 1649, of in 5 reprinted The Founders’ Constitution (P. 49, Kurland & R. 1987) (hereinafter Lerner eds. Found ers’ Constitution). Rhode Island’s of Charter 1663 used the analogous term of “liberty conscience.” It protected resi dents from in being any ways “molested, punished, disqui eted, or called in for question, differences any in opinione, matters of religion, and doe' not disturb the actually civil of peace our sayd colony.” Charter further provided that residents may and “freely, have fully and his enjoy and their own judgments, and conscience in matters of religious and peaceably behaving themselves they .; ..

concernments pro- and liberty licentiousness to using this and quietly of disturbance outward injury, or civil nor faneness; Planta- Providence and Island Rhode of Charter others.” Documents Swindler, Sources W. 8in tions, (hereinafter Swin- (1979) Constitutions States United dler). settlers prospective between agreements Various Jersey simi- New York, Carolina, New proprietors par- language using freedom, religious guaranteed larly New See Charter Island Rhode alleled (1691);Concession Priviledges Rights & Declaring Act York Province Proprietors Lords Agreement New- (1664); West Laws New-Jersey Caesarea, New East Constitutions (1681); Fundamental X Jersey, Art. Carolina, (1683); Charter First XVI New-Jersey, Art. Rights ofBill Complete (1663). Cogan, The N. XVIII Art. 1997). (Galley 23-27 country’s our early in that, suggest documents These pur- freedom acknowledged that Colonies history, several liberty. essential anwas beliefs religious chosen one’s sue govern- recognize that appeared Colonies these Moreover, neces- only when matters interfere should ment “licentiousness.” prevent toor peace civil protect sary civil conflicted religious beliefs words, when In other mili- interests state important unless prevailed religion law, expressed ideas parallel the notions Such tated otherwise. hinder may not government cases—that pre-Smith in our neces- unless religion, exercising their freely from believers interest. state significant a sary further C re- early charters in these expounded principles were constitutions state century later emerged over followed drafting that of constitution flurry adopted in the Con- but every State By 1789, Revolution. American exercise free aof version some incorporated had necticut clause into its constitution. Origins of Free Exercise 1455. These provisions, state which were typically longer and more detailed than the Federal Free Exercise Clause, are perhaps the best evidence of the original understanding of protection Constitution’s religious liberty. After all, it is reasonable to think that the States that ratified the First Amendment assumed that the meaning of the federal free provision exercise corresponded to that of their existing state clauses. precise language of these precur- state sors to the Free Exercise Clause varied, but guaran- most teed free religion exercise of or liberty of conscience,limited by particular, defined state interests. For example, the New York Constitution of provided:

“[T]he free exercise enjoyment religious profes- sion and worship, without discriminatiqn or preference, shall forever hereafter be allowed, within this State, to all mankind: Provided, That liberty of conscience, hereby granted, shall not be so construed as to excuse acts licentiousness, or justify 'practices inconsistent peace or safety this State.” N. Y. Const., Art. XXXVIII, in 7 added). Swindler 178 (emphasis Similarly, Hampshire New Constitution of declared: “Every individual has a natural and right unalienable

to worship GOD according to the dictates of his own conscience,and reason; and no subject shall hurt, mo- lested, or person, restrained in his liberty or estate for worshipping GOD,in the manner and agree- season most able to the dictates of his own provided . conscience,. . he doth not public disturb the peace, or disturb others, in their religious worship.” N. H. Const., I,Art. §5, added). Swindler 345 (emphasis Maryland of Rights Declaration of 1776read: “[N]o person ought by any law to be molested in his person or estate on account of his persuasion 554 under unless, practice; religious his or for profession,

or order, good the disturb shall any man religion, of colour laws the infringe shall State, or the safety or peace of or civil, natural, their others, injure or morality, of religious Rights, of Declaration Const., Md. rights.” added). (emphasis 374 4 Swindler XXXIII Art. of Georgia Constitution the of liberty clause religious The stated: 1777 of exercise free the have shall whatever persons “All peace repugnant be not it provided religion; their 2in LVI, Art. Const., Ga. State.” safety of added). (emphasis Swindler Ordi- Northwest provisions, state these In addition with contemporaneously enacted was 1787—which of nance First by the reenacted Constitution drafting of in- territory that a rights for of bill a Congress—established Wisconsin, and Michigan, Indiana, Ohio, nowis what cluded declared: Ordinance I of Article Minnesota. of part or- peaceable ain demeaning himself person, “No his account molested be ever manner, shall derly ter- said sentiments, in religious worship or mode I, 1787, Art. Territory Ordinance ritory.” Northwest added). (emphasis Stat. provisions constitutional state these used language that, around suggests strongly Ordinance Northwest generally was Rights, it ofBill drafting the time where required, exercise” “free right accepted not—and If practice. religious accommodation possible, applicable generally in Smith correct was Court if conscience— regardless enforceable are laws spec- documents these need no been have would there con- rights did, Constitution York New ify, as the licen- acts excuse toas “construed be should science peace inconsistent practices justify tiousness, or su- been have would proviso Such State.” [the] safety of perfluous. Instead, these documents make only sense if the right to free exercise was viewed as generally superior to ordinary legislation, to only overridden necessary when important secure government purposes. Virginia Legislature may have debated the issue most fully. May In 1776,the Virginia Constitutional Convention wrote a constitution containing a Declaration Rights of with a clause on religious liberty. The initial drafter of the clause, George proposed Mason, the following: religion,

“That duty or the which we owe to our CREATOR, and the manner of discharging it, can be (directed) only by reason and by conviction, not force or violence; and therefore, that all men enjoy should toleration in the exercise religion, fullest according of to the dictates of unpunished conscience, and unre- strained magistrate, unless, under colour reli- of gion, any man peace, disturb the the happiness, or safety society. And that it is the mutual duty of of all practice to Christian forbearance, love, charity and to- wards each other.” Committee Draft Virginia of the Rights, Declaration of 1 Papers of George Mason 284- (R. 1970) added). Rutland (emphasis ed. proposal Mason’s did go enough far 26-year-old for a James Madison, who recently had completed his studies at Presbyterian College of objected Princeton. He first to Mason’s use of the term contending “toleration,” that implied word right that the practice to religion one’s was a governmental favor, rather than an liberty. inalienable Sec- ond, thought Madison proposal Mason’s countenanced too much state interference in matters, since the “exer- religion” cise of yielded would have whenever it was deemed inimical peace, “the happiness, safety or society.” of Madison suggested provision read instead:

“ religion, ‘That or duty we owe our Creator, and the manner of discharging being it, under the direction compul- or violence of only,not conviction reason entitled equally free full are men all sion, conscience; dictates according to it, exercise ac- ought men class orman no therefore emolu- peculiar invested be religion to count or penalties any subjected nor privileges, ments preserva- religion color under disabilities, unless State existence liberty, and equal tion of Madison James Hunt, G. endangered.”’ manifestly American Report Annual Liberty, 1in Religious Cong., 57th No. Doc. R.H. Association, Historical added). (1901)(emphasis 163, 166-167 Sess., 1st “tolera- language of Mason’s shift wished Madison Thus, Rise Cobb, S. See rights. language tion” 1970)(not- (1902)(reprint Liberty America Religious belong- “toleration” word the objected Madison ing that and Church, established an was where system “a ing to right, not granted, was worship liberty of certain a where proposal, Madison’s Additionally, under grace”). but only if exercise religious believer’s in a interfere could State In endangered.” manifestly “be otherwise would State regarding language Madison’s nor Mason’s neither end, exer- religious limit could interests state to which extent liberty religious Virginia Constitution’s into it made cise Virginia Clause, Exercise Free Federal Like clause. pro- subject, simply silent was liberty clause religious ex- free to the equally entitled are men “all only viding conscience.” dictates according to religion, ercise (1776), Swin- XVI Art. Rights, Declaration Virginia both telling that however, it purposes, our For dler that, when envisioned formulations Madison’s and Mason’s freely practic- interest person’s a conflict, a was there interests. state against balanced to be religion was ing his interest state limited more a endorsed Although Madison irrel- been have would debate Mason, did exception than did exercise free right to thought the had if either evant include right exempt from certain generally appli- cable laws. Presumably, Virginia Legislature intended scope of its free provision exercise to strike some middle ground between Mason’s narrower and Madison’s broader notions of right to religious freedom.

D practice early Colonies and States bears out the conclusion that, at the time the Rights Bill of was rati- fied, it was accepted government should, possible, when accommodate practice. Unsurprisingly, of course, even in the American Colonies inhabited people of re- ligious persuasions, religious conscience and civil rarely law conflicted. Most 17th and 18th century Americans be- longed to denominations of Protestant Christianity whose religious practices generally were harmonious with colonial Curry, law. (“The First Freedoms, at 219 major- vast ity of Americans assumed that theirs awas Christian, i. e. country, Protestant, they automatically expected that government uphold would the commonly agreed on Prot- estant ethos morality”). governments Moreover, then were far smaller and less intrusive they than today, are which made conflict between civil law religion unusual. Nevertheless, tension between religious conscience generally applicable laws, though rare, was not unknown in preconstitutional America. Most commonly, such conflicts arose from requirements, oath military conscription, and reli- gious assessments. Origins of Free Exercise 1466. The ways in which these conflicts were resolved suggest Americans in the Colonies early and thought States that, if an religious individual’s scruples prevented him from com- plying with a generally applicable law, government possible, should, if excuse person from the law’s cover- age. For example, Quakers and certain other Protestant sects refused on grounds Biblical to subscribe to oaths or “swear” allegiance to civil authority. A. Adams & C. Em- Liberty: The Religious to Dedicated A Nation

merich, (1990) Religion Clauses Heritage of Constitutional accommoda- Emmerich). Without & (hereinafter Adams partic- from them prevented have would beliefs their tion, testify- including oaths, involving activities civic in ipating alternatives created governments Colonial court. ing in early de- In individuals. these for requirement oath to the applied proprietors Carolina example, cisions, Charter the Carolina provision liberty religious Curry, The book. in a pledges to enter Quakers permit to en- York 1691, New Similarly, in 56. Freedoms, First and affirmation, testify by to allowing Quakers lawa acted by affirma- vote qualify Quakers permitted it 1734, in had States virtually all of By 64. Id., at tion. 62. Emmerich & Adams See exemptions. oath enacted ap- generally beliefs religious between Early conflicts conscription military because occurred also laws plicable fewaas well Mennonites, as Quakers requirements. carry grounds religious denominations, refused smaller lib- asserted denominations these Members arms. military con- from them exempt should erty conscience military from objectors excusing such Obviously, scription. importance given cost, high public had service Is- Rhode Nevertheless, society. defense military from exempted Quakers Maryland Carolina, North land, Massachu- York, New 1600’s. late in military service in suit followed Hampshire New Virginia, setts, Continen- Exercise Free Origins of mid-1700’s. conscription: from exemption granted likewise Congress tal prin- from who, people, some are there “As in- case, this any arms bear cannot ciples, earnestly rec- consciences, but to their violence no tend time liberally this to contribute them, it to ommend distressed their relief calamity, to universal serv- other all to do colonies,and several brethren consist- they can Country, which oppressed their ices ently with religious their principles.” Resolution of July 18, reprinted in 2 Journals of the Continental Congress, (W. pp. 1774-1789, 187,189 1905). Ford ed. Again, practice this of excusing religious pacifists from mili- tary service demonstrates long that, before the First Amend- ment was legislative ratified, accommodations were a com- response mon to conflicts religious between practice and civil obligation. Notably, the Continental exempted objectors from conscription to avoid “violence to their con- sciences,” explicitly recognizing that civil laws must some- give way times to freedom of Origins conscience. of Free Exercise 1468.

States and Colonies with established churches encoun- tered a religious further problem. accommodation Typi- cally, governments these required pay citizens to tithes to support government-established either the church church to which the tithepayer belonged. Baptists But and Quakers, as well as others, opposed government- all compelled religious tithes on grounds. Id., at 1469. Mas- sachusetts, Connecticut, New Hampshire, Virginia re- sponded by exempting objectors such religious from assessments. Ibid. There are examples additional early conflicts between civil religious laws practice that were similarly through settled accommodation of exer- cise. Both North Maryland Carolina excused Quakers requirement from the removing their hats in court; Rhode exempted Island Jews requirements from the of the state marriage laws; Georgia groups allowed European im- migrants organize whole according towns to their own Id., faith. at

To legislatures, be sure, granted not courts, early these accommodations. But these were days before there was protect Constitution to a. civil judicial review did liberties— yet legislatures exist. These apparently believed that appropriate response to conflicts between civil law and religious scruples possible, was, where accommodation of re- draft- the presume to reasonable isIt conduct.

ligious many whom of First Amendment— the of ratifiers ers apply would courts legislatures in state served —assumed liberty religious similarly, so Clause Exercise Free the safeguarded. was

E shape our to helped who early leaders writings of The un- original into insight of source final a provide Nation thoughts The Clause. Exercise Free derstanding of ofBill of the architects principal Madison—one James Virgin- surrounding controversy by the revealed Rights—as illumi- particularly are 1784, ofBill Assessment General ia’s end not did issues religious over debate Virginia’s nating. provision. exercise free constitutional aof adoption its with Although England the Church disestablished had Virginia might be religion whether question open it left 1776, in “general so-called by a basis nonpreferential aon supported Constitutional American Essays on Levy, assessment.” 1784, the years between In the 200. History, at general Virginia religion in support —either how issue Curry, widely debated. voluntarily assessment —was 136. Freedoms, at First by Pat- assessment, led general a supporters By Virginia As- majority slight a gained Henry, had rick Intentions Politics: Religion and Malbin, sembly. M. supra, (1978);Levy, Amendment First Authors Provision Establishing a Bill “A They introduced 200. at proposed which Religion,” Christian Teachers for de- Christian support order taxed citizens designated taxes those choice, their nomination aid fund public go denomination specific any 140- supra, at Curry, 200-201; supra, at Levy, seminaries. assess- religious viewed Madison supra, Malbin, 141; liberty led religious infringement dangerous aas ment against case took He bill. to the opposition “Me- now-famous his Virginia people to the assessment morial and Remonstrance Against Religious Assessments.” supra, Levy, at 201. This led pamphlet thousands of Virgin- ians to oppose bill and to submit petitions expressing their views to the legislature. supra, Malbin, at 24. The bill died eventually in committee, and Virginia instead enacted a Bill for Establishing Religious Freedom, which Thomas Jefferson had drafted in 1779. supra, Malbin, at 24.

The “Memorial and Remonstrance” with begins the recog- nition that “[t]he ... of Religion man every must be left to the conviction and conscience of man; every and it is the right of every man to exercise it as these may dictate.” 2 Writ- of James ings (G. Madison 184 Hunt 1901). ed. itsBy very nature, Madison wrote, the to right free exercise is “unalien- able,” both because a person’s opinion “cannot follow the dic- tates of other[s],” and because it entails “a duty towards the Ibid. Madison continued: Creator.” “This duty [owed the Creator] is precedent both in order of time and degree of obligation, to the claims of Civil Society.... man [E]very who becomes a member of any particular Civil Society, do it [must] with a saving his to allegiance the Universal Sovereign. We maintain therefore that in matters of Religion, no man’s is right abridged by institution of Civil Society, and that Re- is ligion wholly from exempt its cognizance.” Id., 184-185.

To Madison, then, duties to God were superior duties to civil authorities —the ultimate was loyalty owed to God above all. Madison did not that say duties to the Creator are precedent only those laws specifically directed at reli- gion, nor did he strive simply prevent deliberate acts of persecution or discrimination. The idea that civil obliga- tions are subordinate to religious duty consonant with the notion that government must accommodate, where possible, those religious practices that conflict with civil law. re regarding views similar expressed leaders early Other Virginia’s drafter Jefferson, Thomas liberty.

ligious docu that wrote Freedom, Religious Establishing for Bill exer religious interfere could government civil ment acts against overt into out break principles “when only cise consid he indicated 1808, he In order.” and good peace “ interdicted States United ‘the government ered insti religious intermeddling from the Constitution exercises.’” doctrines, discipline, their tutions, ed. (A. Lipscomb 428-429 Jefferson Thomas Writings Justice, Dept. S.U. Policy, Legal in Office 1904) (quoted under Liberty General, Religious Attorney Report be Moreover, Jefferson (1986)). Clause Exercise Free “ deter a right has society ‘[e]very lieved objects exercises, these time itself for mine tenets; own particular to their according them, proper hands, own their than safer never can this right ” Ibid. it.’ deposited has Constitution where that believed he stated expressly Washington George religious accommodate to utmost its do should government of Quakers: a group to a letter in writing scruples, men of all scruples conscientious my opinion “[I]n tenderness; and delicacy great treated be should always may laws desire, that and wish is my it and re- a due them, as to accommodated extensively be na- interests and essential protection gard George from Letter permit.” and justify may tion Quakers Called Society Religious to the Washington Liberty Religious on Washington George in 1789), (Oct. 1932). ed. (E. Humphrey Understanding Mutual Amendment First Framer Ellsworth, Oliver simi- States, expressed the United Justice Chief later matters religious interfere could government lar view immorali- gross and punish “to prohibit necessary when only ties and impieties; because the open practice these is of evil example detriment.” Oliver Ellsworth, Land- (Dec. holder, No. 7 17,1787), in 4 reprinted Founders’ Consti- tution 640. Isaac Backus, a Baptist minister who was a del- egate the Massachusetts convention ratifying of 1788, “ declared that ‘every person has an unalienable to act right in all affairs to the according full persuasion of his ” own mind, where others are not injured thereby.’ Backus, A Declaration of Rights, Inhabitants of the State of Massachusetts-Bay, Isaac Backus Church, State, and (W. Calvinism 487 1968). ed. McLoughlin These are but a few examples various perspectives re- garding proper between relationship church and govern- ment that existed the time during the First Amendment was drafted and ratified. Obviously, since these thinkers ap- proached issue of religious freedom somewhat differ- Adams & Emmerich 21-31, see ently, it not possible to distill their into thoughts one tidy formula. Nevertheless, a few general principles may discerned. Foremost, these early leaders accorded religious exercise a special constitu- tional status. The right free exercise was a substantive guarantee individual no less liberty, important than right free or speech right just compensation for the taking property. See R Kauper, Religion the Consti- (1964) (“[0]ur tution 17 whole constitutional ... history sup- ports conclusion that religious is an liberty independent liberty, its recognition either may require permit preferential treatment on religious grounds some in- ”). stances . . . As Madison it in put the concluding argu- ment of his “Memorial and Remonstrance”:

“ ‘[T]he equal citizen right every to the free exercise of his to Religion the according dictates of [his] con- science’ is held the same tenure with all our other rights.... is [I]t equally gift nature;... it cannot be less dear to us;... it is enumerated with solem- equal of James Writings emphasis.” studied rather

nity, 190. at Madison, in reli- interference that government agreed all Second, & Adams countenanced. lightly to be not was practice

gious “ ‘true conviction shared all Finally, Emmerich of pub- foundation solid only are morals and good religion Freedoms, First Curry, and happiness.’” liberty lic Emmerich & Adams see Congress); Continental 219 (quoting rested the republic acknowledged ... (“The Founders To give religion”). from derived principles moral largely character- society ain particularly to these meaning ideas — regulation pervasive —there pluralism religious by. ized to government requires Constitution when times will be religious whose citizens those needs accommodate law. applicable generally with conflict practices Ill a pro- represent Constitution Clauses Religion Found- Nation’s Our liberty. religious to commitment found religious voluntary to receptive Republic aof conceived ers expres- in which society a secular not expression, a gener- conflict does it when only tolerated sion discussed sources historical As law. applicable ally understood is properly Clause Exercise Free show, above reli- to participate the right guarantee affirmative anas inter- governmental impermissible without activities gious awith tension inis conduct believer’s where even ference, anoma- way no inisit Certainly, application. law general identified a right protection heightened accord lous long has it example, For Amendment. First text right of speech freedom —a position Court’s been exer- free right after words a few only enumerated centrality Given status. constitutional special cise—has concept American religion of speech freedom conclude reasonable is altogether it liberty, of personal that both should be treated highest degree respect.

Although may provide it bright line, the rule the Court in declared Smith does faithfully not serve the purpose of the Constitution. Accordingly, I believe that it is essential for the Court to holding reconsider its in Smith—and do so very in this case. I would therefore parties direct the brief this issue and set reargument. the case for

I respectfully dissent from the disposition Court’s of this case.

Justice Souter, dissenting. To decide whether the Fourteenth gives Amendment Con gress power sufficient to enact Religious Freedom Resto ration Act of 1993,the Court measures legislation against the free-exercise standard Employment Dept. Div., Human Resources Ore. (1990). v. Smith, 494 S.U. For the reasons my opinion stated in in Church Lukumi Aye, Babalu Inc. v. Hialeah, (1993) U. S. 564-577 (opinion concurring part in and concurring judgment), I have serious doubts precedential about the value of the Smith rule and its entitlement to adherence. These doubts are today intensified by arguments historical going original understanding of the Free pre Exercise Clause sented in Justice dissent, ante, at 548-564, O’Connor’s which very raises substantial issues about the soundness ofthe Smith rule. See p. also ante, (Justice concur Scalia, ring in part) (addressing arguments). historical But without briefing argument (which on the merits of that rule this Court has never had any case, including itself, Smith see Lukumi, 508 U. 571-572), S., I am prepared now join Justice in rejecting it or majority O’Connor assuming it to be correct. In order provide full adversar ial consideration, this case should be set down reargu ment permitting plenary reexamination of the issue. Since the Court declines to follow that course, our free-exercise id., at tension,” “intolerable an marked remains

law enforce Congress to of constitutionality the Act I soundly decided. now right cannot free-exercise improvi- certiorari writ dismiss therefore would Court’s from accordingly dissent I dently granted, and case. this disposition Breyer, dissenting.

Justice should Court O’Connor agree with Justice I Employment whether question brief parties direct U. Smith, 494 S. v.Ore. Resources Human Dept. Div., re- case this set decided, and correctly (1990), was necessary consider it however, find not, do argument. I § correct, assuming Smith whether, question to enact authorize would Amendment Fourteenth some agree with I Thus, while us. legislation before I Part paragraph first expressed the views agree necessarily with do dissent, I O’Connor’s Justice dissent, join Justice O’Connor’s therefore I of them. all I. Part paragraph of first exception of

Case Details

Case Name: City of Boerne v. Flores

Court Name: Supreme Court of the United States

Date Published: Jun 25, 1997

Citation: 521 U.S. 507

Docket Number: 95-2074

Court Abbreviation: SCOTUS