OCTOBER TERM, 1996
Syllabus
CITY OF BOERNE
v. FLORES, ARCHBISHOP OF SAN ANTONIO, ET
AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT
No. 95-2074. Argued February 19, 1997-Decided June 25,1997
Respondent, the Catholic Archbishop of San Antonio, applied for
a building permit to enlarge a church in Boerne, Texas. When local
zoning authorities denied the permit, relying on an ordinance
governing historic preservation in a district which, they argued,
included the church, the Archbishop brought this suit challenging
the permit denial under,
inter alia, the Religious Freedom
Restoration Act of 1993 (RFRA). The District Court concluded that
by enacting RFRA Congress exceeded the scope of its enforcement
power under § 5 of the Fourteenth Amendment. The court certified
its order for interlocutory appeal, and the Fifth Circuit reversed,
finding RFRA to be constitutional.
Held: RFRA exceeds Congress' power. pp. 512-536.
(a) Congress enacted RFRA in direct response to
Employment
Div., Dept. of Human Resources of Ore. v.
Smith,
494 U. S. 872, in
which the Court upheld against a free exercise challenge a state
law of general applicability criminalizing peyote use, as applied
to deny unemployment benefits to Native American Church members who
lost their jobs because of such use. In so ruling, the Court
declined to apply the balancing test of
Sherbert v.
Verner, 374 U.
S. 398, which asks whether the law at issue substantially
burdens a religious practice and, if so, whether the burden is
justified by a compelling government interest. RFRA prohibits
"[g]overnment" from "substantially burden[ing]" a person's exercise
of religion even if the burden results from a rule of general
applicability unless the government can demonstrate the burden "(1)
is in furtherance of a compelling governmental interest; and (2) is
the least restrictive means of furthering that ... interest." 42 U.
S. C. § 2000bb-1. RFRA's mandate applies to any branch of Federal
or State Government, to all officials, and to other persons acting
under color of law. § 2000bb-2(1). Its universal coverage includes
"all Federal and State law, and the implementation of that law,
whether statutory or otherwise, and whether adopted before or after
[RFRA's enactment]." § 2000bb-3(a). Pp. 512-516.
(b) In imposing RFRA's requirements on the States, Congress
relied on the Fourteenth Amendment, which,
inter alia,
guarantees that no State shall make or enforce any law depriving
any person of "life, lib-
508
Syllabus
erty, or property, without due process of law," or denying any
person the "equal protection of the laws," § 1, and empowers
Congress "to enforce" those guarantees by "appropriate
legislation," § 5. Respondent Archbishop and the United States
contend that RFRA is permissible enforcement legislation under § 5.
Although Congress certainly can enact legislation enforcing the
constitutional right to the free exercise of religion, see,
e.
g., Cantwell v.
Connecticut, 310 U. S. 296, 303, its §
5 power "to enforce" is only preventive or "remedial,"
South
Carolina v.
Katzenbach, 383 U. S. 301, 326. The
Amendment's design and § 5's text are inconsistent with any
suggestion that Congress has the power to decree the substance of
the Amendment's restrictions on the States. Legislation which
alters the Free Exercise Clause's meaning cannot be said to be
enforcing the Clause. Congress does not enforce a constitutional
right by changing what the right is. While the line between
measures that remedy or prevent unconstitutional actions and
measures that make a substantive change in the governing law is not
easy to discern, and Congress must have wide latitude in
determining where it lies, the distinction exists and must be
observed. There must be a congruence and proportionality between
the injury to be prevented or remedied and the means adopted to
that end. Lacking such a connection, legislation may become
substantive in operation and effect. The need to distinguish
between remedy and substance is supported by the Fourteenth
Amendment's history and this Court's case law, see,
e. g.,
Civil Rights Cases, 109 U. S. 3, 13-14, 15;
Oregon v.
Mitchell, 400 U. S. 112, 209, 296.
The Amendment's design has proved significant also in maintaining
the traditional separation of powers between Congress and the
Judiciary, depriving Congress of any power to interpret and
elaborate on its meaning by conferring self-executing substantive
rights against the States, cf. id., at 325, and thereby leaving the
interpretive power with the Judiciary. Pp. 516-529.
(c) RFRA is not a proper exercise of Congress' § 5 enforcement
power because it contradicts vital principles necessary to maintain
separation of powers and the federal-state balance. An instructive
comparison may be drawn between RFRA and the Voting Rights Act of
1965, provisions of which were upheld in
Katzenbach, supra,
and subsequent voting rights cases. In contrast to the record of
widespread and persisting racial discrimination which confronted
Congress and the Judiciary in those cases, RFRA's legislative
record lacks examples of any instances of generally applicable laws
passed because of religious bigotry in the past 40 years. Rather,
the emphasis of the RFRA hearings was on laws like the one at issue
that place incidental burdens on religion. It is difficult to
maintain that such laws are based on animus or hostility to the
burdened religious practices or that they indicate some
widespread
509
pattern of religious discrimination in this country. RFRA's most
serious shortcoming, however, lies in the fact that it is so out of
proportion to a supposed remedial or preventive object that it
cannot be understood as responsive to, or designed to prevent,
unconstitutional behavior. It appears, instead, to attempt a
substantive change in constitutional protections, proscribing state
conduct that the Fourteenth Amendment itself does not prohibit. Its
sweeping coverage ensures its intrusion at every level of
government, displacing laws and prohibiting official actions of
almost every description and regardless of subject matter. Its
restrictions apply to every government agency and official, §
2000bb2(1), and to all statutory or other law, whether adopted
before or after its enactment, § 2000bb-3(a). It has no termination
date or termination mechanism. Any law is subject to challenge at
any time by any individual who claims a substantial burden on his
or her free exercise of religion. Such a claim will often be
difficult to contest. See
Smith, supra, at 887. Requiring a
State to demonstrate a compelling interest and show that it has
adopted the least restrictive means of achieving that interest is
the most demanding test known to constitutional law. 494 U. S., at
888. Furthermore, the least restrictive means requirement was not
used in the
pre-Smith jurisprudence RFRA purported to
codify. All told, RFRA is a considerable congressional intrusion
into the States' traditional prerogatives and general authority to
regulate for the health and welfare of their citizens, and is not
designed to identify and counteract state laws likely to be
unconstitutional because of their treatment of religion. Pp.
529-536.
73 F.3d
1352, reversed.
KENNEDY, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and STEVENS, THOMAS, and GINSBURG, JJ., joined,
and in which SCALIA, J., joined as to all but Part III-A-l.
STEVENS, J., filed a concurring opinion,
post, p. 536.
SCALIA, J., filed an opinion concurring in part, in which STEVENS,
J., joined,
post, p. 537. O'CONNOR, J., filed a dissenting
opinion, in which BREYER, J., joined except as to the first
paragraph of Part I,
post, p. 544. SOUTER, J.,
post,
p. 565, and BREYER, J.,
post, p. 566, filed dissenting
opinions.
Marci A. Hamilton argued the cause for petitioner. With
her on the briefs were
Lowell F. Denton and
Gordon L.
Hollon.
Jeffrey S.
Sutton, State Solicitor of Ohio, argued
the cause for the State of Ohio et al. as
amici curiae
urging reversal. With him on the brief were
Betty D.
Montgomery, Attor-
510
Counsel
ney General of Ohio,
Robert C.
Maier and
Todd
Marti, Assistant Attorneys General, and the Attorneys General
for their respective jurisdictions as follows:
Malaetasi M.
Togafau of American Samoa,
Grant Woods of Arizona,
Gale A. Norton of Colorado,
M. Jane Brady of
Delaware,
Robert Butterworth of Florida,
Calvin Holloway,
Sr., of Guam,
Margery S.
Bronster of Hawaii,
Alan G.
Lance of Idaho,
Mike Moore of
Mississippi,
Frankie Sue Del Papa of Nevada,
Jeffrey R.
Howard of New Hampshire,
Michael F. Easley of North
Carolina,
W A. Drew Edmondson of Oklahoma,
Thomas W
Corbett, Jr., of Pennsylvania, and
Julio A. Brady of the
Virgin Islands.
Douglas Laycock argued the cause for respondent
Flores.
With him on the brief were Thomas Drought and Patricia J.
Schofield. Acting Solicitor General Dellinger argued the cause for
the United States. With him on the brief were Assistant Attorney
General Hunger, Deputy Solicitor General Waxman, Patricia A.
Millett, and Michael Jay Singer.*
*Briefs of
amici curiae urging reversal were filed for
the Commonwealth of Virginia by
James S.
Gilmore II,
Attorney General,
David E. Anderson, Chief Deputy Attorney
General,
William Henry Hurd, Deputy Attorney General, and
Lee E. Goodman; for the Clarendon Foundation by
Ronald D.
Maines and
Jay S.
Bybee; for the National Right
to Work Legal Defense Foundation, Inc., by
Bruce N. Cameron;
and for the San Antonio Conservation Society et al. by
Robert A.
Long, Jr., and
Ivan K. Fong.
Briefs of
amici curiae urging affirmance were filed for
the State of Maryland et al. by J.
Joseph Curran, Jr.,
Attorney General of Maryland,
Jack Schwartz and
Steven M.
Sullivan, Assistant Attorneys General, and by the Attorneys
General for their respective States as follows:
Richard
Blumenthal of Connecticut,
Scott Harshbarger of
Massachusetts, and
Dennis C.
Vacco of New York; for
members of the Virginia House of Delegates et al. by
Mitchell A.
Karlan; for Senator Orrin G. Hatch et al. by
Carter G.
Phillips and
Gene C.
Schaerr; for Senator
Edward M. Kennedy et al. by
Clifford M. Sloan; for the
American Bar Association by
N. Lee Cooper, Stuart H.
Newberger, and
Joseph N. Onek; for the American Center
for Law and Justice by
Jay Alan Sekulow, James M. Henderson,
Sr., Walter M. Weber, Keith A. Fournier, and
John G.
Stepanovich; for the Beckett Fund for Religious Liberty by
Kevin J.
Hasson; for the Church of Jesus
511
JUSTICE KENNEDY delivered the opinion of the Court.*
A decision by local zoning authorities to deny a church a
building permit was challenged under the Religious Freedom
Restoration Act of 1993 (RFRA or Act), 107 Stat. 1488, 42 U. S. C.
§ 2000bb
et seq. The case calls into question the authority
of Congress to enact RFRA. We conclude the statute exceeds
Congress' power.
I
Situated on a hill in the city of Boerne, Texas, some 28 miles
northwest of San Antonio, is St. Peter Catholic Church. Built in
1923, the church's structure replicates the mission
Christ of Latter-day Saints by W Cole Durham, Jr., James A.
Serritella, James C. Geoly, Kevin R. Gustafson, and Von G. Keetch;
for the Coalition for the Free Exercise of Religion by Marc D.
Stern, Oliver S. Thomas, J. Brent Walker, Melissa Rogers, Steven T.
McFarland, Samuel Rabinove, Richard Foltin, David Zwiebel, Steven
R. Shapiro, Steven K. Green, 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 Lorence; for the NAACP Legal
Defense and Educational Fund, Inc., by Elaine R. Jones, Theodore M.
Shaw, 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
Nathan Lewin, Mathew S. Nosanchuk, and Dennis Rapps; for the
National Trust for Historic Preservation in the United States by
John H. Beisner and Elizabeth S. Merritt; for the Prison Fellowship
Ministries et al. by Michael Joseph Woodruff, Scott J. Ward, J.
Matthew Szymanski, Stephen M. Clarke, 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
Dan Morales, 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 a Legal Duty, Inc., et al. by
Robert J.
Bruno; for the Knights of Columbus by
Thomas D. Yannucci and
Carl A. Anderson; for the
Rutherford Institute by
John W Whitehead, James A. Hayes,
Jr., and
Brian L. Day; and by
Thurston Greene, pro
se.
*JU8TICE SCALIA joins all but Part III-A-1 of this opinion.
512
style of the region's earlier history. The church seats about
230 worshippers, a number too small for its growing parish. Some 40
to 60 parishioners cannot be accommodated at some Sunday masses. In
order to meet the needs of the congregation the Archbishop of San
Antonio gave permission to the parish to plan alterations to
enlarge the building.
A few months later, the Boerne City Council passed an ordinance
authorizing the city's Historic Landmark Commission to prepare a
preservation plan with proposed historic landmarks and districts.
Under the ordinance, the commission must preapprove construction
affecting historic landmarks or buildings in a historic
district.
Soon afterwards, the Archbishop applied for a building permit so
construction to enlarge the church could proceed. City authorities,
relying on the ordinance and the designation of a historic district
(which, they argued, included the church), denied the application.
The Archbishop brought this suit challenging the permit denial in
the United States District Court for the Western District of Texas.
877
The complaint contained various claims, but to this point the
litigation has centered on RFRA and the question of its
constitutionality. The Archbishop relied upon RFRA as one basis for
relief from the refusal to issue the permit. The District Court
concluded that by enacting RFRA Congress exceeded the scope of its
enforcement power under § 5 of the Fourteenth Amendment. The court
certified its order for interlocutory appeal and the Fifth Circuit
reversed, finding RFRA to be constitutional.
73
F.3d 1352 (1996). We granted certiorari, 519 U. S. 926 (1996),
and now reverse.
II
Congress enacted RFRA in direct response to the Court's decision
in
Employment Div., Dept. of Human Resources of Ore. v.
Smith, 494 U.
S. 872 (1990). There we considered a Free Exercise Clause claim
brought by members of the
513
Native American Church who were denied unemployment benefits
when they lost their jobs because they had used peyote. Their
practice was to ingest peyote for sacramental purposes, and they
challenged an Oregon statute of general applicability which made
use of the drug criminal. In evaluating the claim, we declined to
apply the balancing test set forth in
Sherbert v.
Verner, 374 U.
S. 398 (1963), under which we would have asked whether Oregon's
prohibition substantially burdened a religious practice and, if it
did, whether the burden was justified by a compelling government
interest. We stated:
"[G]overnment's ability to enforce generally applicable
prohibitions of socially harmful conduct ... cannot depend on
measuring the effects of a governmental action on a religious
objector's spiritual development. To make an individual's
obligation to obey such a law contingent upon the law's coincidence
with his religious beliefs, except where the State's interest is
'compelling' ... contradicts both constitutional tradition and
common sense." 494 U. S., at 885 (internal quotation marks and
citations omitted).
The application of the
Sherbert test, the
Smith
decision explained, would have produced an anomaly in the law, a
constitutional right to ignore neutral laws of general
applicability. The anomaly would have been accentuated, the Court
reasoned, by the difficulty of determining whether a particular
practice was central to an individual's religion. We explained,
moreover, that it "is not within the judicial ken to question the
centrality of particular beliefs or practices to a faith, or the
validity of particular litigants' interpretations of those creeds."
494 U. S., at 887 (internal quotation marks and citation
omitted).
The only instances where a neutral, generally applicable law had
failed to pass constitutional muster, the
Smith Court
514
noted, were cases in which other constitutional protections were
at stake.
Id., at 881-882. In
Wisconsin v.
Yoder, 406 U.
S. 205 (1972), for example, we invalidated Wisconsin's
mandatory school-attendance law as applied to Amish parents who
refused on religious grounds to send their children to school. That
case implicated not only the right to the free exercise of religion
but also the right of parents to control their children's
education.
The
Smith decision acknowledged the Court had employed
the
Sherbert test in considering free exercise challenges to
state unemployment compensation rules on three occasions where the
balance had tipped in favor of the individual. See
Sherbert,
supra; Thomas v.
Review Bd. of Indiana Employment Security
Div., 450 U. S.
707 (1981);
Hobbie v.
Unemployment Appeals Comm'n of
Fla., 480 U. S.
136 (1987). Those cases, the Court explained, stand for "the
proposition that where the State has in place a system of
individual exemptions, it may not refuse to extend that system to
cases of religious hardship without compelling reason." 494 U. S.,
at 884 (internal quotation marks omitted). By contrast, where a
general prohibition, such as Oregon's, is at issue, "the sounder
approach, and the approach in accord with the vast majority of our
precedents, is to hold the test inapplicable to [free exercise]
challenges."
Id., at 885.
Smith held that neutral,
generally applicable laws may be applied to religious practices
even when not supported by a compelling governmental interest.
Four Members of the Court disagreed. They argued the law placed
a substantial burden on the Native American Church members so that
it could be upheld only if the law served a compelling state
interest and was narrowly tailored to achieve that end.
Id.,
at 894. JUSTICE O'CONNOR concluded Oregon had satisfied the test,
while Justice Blackmun, joined by Justice Brennan and Justice
Marshall, could see no compelling interest justifying the law's
application to the members.
515
These points of constitutional interpretation were debated by
Members of Congress in hearings and floor debates. Many criticized
the Court's reasoning, and this disagreement resulted in the
passage of RFRA. Congress announced:
"(1) [T]he framers of the Constitution, recognizing free
exercise of religion as an unalienable right, secured its
protection in the First Amendment to the Constitution; "(2) laws
'neutral' toward religion may burden religious exercise as surely
as laws intended to interfere with religious exercise;
"(3) governments should not substantially burden religious
exercise without compelling justification;
"(4) in Employment Division v. Smith, 494 U. S. 872 (1990), the
Supreme Court virtually eliminated the requirement that the
government justify burdens on religious exercise imposed by laws
neutral toward religion; and
"(5) the compelling interest test as set forth in prior Federal
court rulings is a workable test for striking sensible balances
between religious liberty and competing prior governmental
interests." 42 U. S. C. § 2000bb(a).
The Act's stated purposes are:
"(1) to restore the compelling interest test as set forth in
Sherbert v. Verner, 374 U. S. 398 (1963) and
Wisconsin v. Yoder, 406 U. S. 205 (1972) and
to guarantee its application in all cases where free exercise of
religion is substantially burdened; and
"(2) to provide a claim or defense to persons whose religious
exercise is substantially burdened by government." § 2000bb(b).
RFRA prohibits "[g]overnment" from "substantially burden[ing]" a
person's exercise of religion even if the burden results from a
rule of general applicability unless the government can demonstrate
the burden "(1) is in furtherance of
516
a compelling governmental interest; and (2) is the least
restrictive means of furthering that compelling governmental
interest." § 2000bb-1. The Act's mandate applies to any "branch,
department, agency, instrumentality, and official (or other person
acting under color oflaw) of the United States," as well as to any
"State, or ... subdivision of a State." § 2000bb-2(1). The Act's
universal coverage is confirmed in § 2000bb-3(a), under which RFRA
"applies to all Federal and State law, and the implementation of
that law, whether statutory or otherwise, and whether adopted
before or after [RFRA's enactment]." In accordance with RFRA's
usage of the term, we shall use "state law" to include local and
municipal ordinances.
III A
Under our Constitution, the Federal Government is one of
enumerated powers.
McCulloch v.
Maryland, 4 Wheat.
316, 405 (1819); see also The Federalist No. 45, p. 292 (C.
Rossiter ed. 1961) (J. Madison). The judicial authority to
determine the constitutionality of laws, in cases and
controversies, is based on the premise that the "powers of the
legislature are defined and limited; and that those limits may not
be mistaken, or forgotten, the constitution is written."
Marbury v.
Madison, 1 Cranch 137, 176 (1803).
Congress relied on its Fourteenth Amendment enforcement power in
enacting the most far-reaching and substantial of RFRA's
provisions, those which impose its requirements on the States. See
Religious Freedom Restoration Act of 1993, S. Rep. No. 103-111, pp.
13-14 (1993) (Senate Report); H. R. Rep. No. 103-88, p. 9 (1993)
(House Report). The Fourteenth Amendment provides, in relevant
part:
"Section 1. ... No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life,
liberty, or property, without due proc-
517
ess of law; nor deny to any person within its jurisdiction the
equal protection of the laws.
"Section 5. The Congress shall have power to enforce, by
appropriate legislation, the provisions of this article."
The parties disagree over whether RFRA is a proper exercise of
Congress' § 5 power "to enforce" by "appropriate legislation" the
constitutional guarantee that no State shall deprive any person of
"life, liberty, or property, without due process of law," nor deny
any person "equal protection of the laws."
In defense of the Act, respondent the Archbishop contends, with
support from the United States, that RFRA is permissible
enforcement legislation. Congress, it is said, is only protecting
by legislation one of the liberties guaranteed by the Fourteenth
Amendment's Due Process Clause, the free exercise of religion,
beyond what is necessary under
Smith. It is said the
congressional decision to dispense with proof of deliberate or
overt discrimination and instead concentrate on a law's effects
accords with the settled understanding that § 5 includes the power
to enact legislation designed to prevent, as well as remedy,
constitutional violations. It is further contended that Congress' §
5 power is not limited to remedial or preventive legislation.
All must acknowledge that § 5 is "a positive grant of
legislative power" to Congress,
Katzenbach v.
Morgan,
384 U. S. 641,
651 (1966). In
Ex parte Virginia, 100 U. S. 339, 345346
(1880), we explained the scope of Congress' § 5 power in the
following broad terms:
"Whatever legislation is appropriate, that is, adapted to carry
out the objects the amendments have in view, whatever tends to
enforce submission to the prohibitions they contain, and to secure
to all persons the enjoyment of perfect equality of civil rights
and the equal protection of the laws against State denial or
invasion, if not
518
prohibited, is brought within the domain of congressional
power."
Legislation which deters or remedies constitutional violations
can fall within the sweep of Congress' enforcement power even if in
the process it prohibits conduct which is not itself
unconstitutional and intrudes into "legislative spheres of autonomy
previously reserved to the States."
Fitzpatrick v.
Bitzer, 427 U.
S. 445, 455 (1976). For example, the Court upheld a suspension
of literacy tests and similar voting requirements under Congress'
parallel power to enforce the provisions of the Fifteenth
Amendment, see U. S. Const., Amdt. 15, § 2, as a measure to combat
racial discrimination in voting,
South Carolina v.
Katzenbach, 383 U. S. 301, 308
(1966), despite the facial constitutionality of the tests under
Lassiter v.
Northampton County Bd. of Elections,
360 U. S. 45
(1959). We have also concluded that other measures protecting
voting rights are within Congress' power to enforce the Fourteenth
and Fifteenth Amendments, despite the burdens those measures placed
on the States.
South Carolina v.
Katzenbach, supra
(upholding several provisions of the Voting Rights Act of 1965);
Katzenbach v.
Morgan, supra (upholding ban on
literacy tests that prohibited certain people schooled in Puerto
Rico from voting);
Oregon v.
Mitchell, 400 U. S. 112 (1970)
(upholding 5-year nationwide ban on literacy tests and similar
voting requirements for registering to vote);
City of Rome
v.
United States, 446 U. S. 156, 161 (1980)
(upholding 7-year extension of the Voting Rights Act's requirement
that certain jurisdictions preclear any change to a "'standard,
practice, or procedure with respect to voting' "); see also
James Everard's Breweries v.
Day, 265 U. S. 545 (1924)
(upholding ban on medical prescription of intoxicating malt liquors
as appropriate to enforce Eighteenth Amendment ban on manufacture,
sale, or transportation of intoxicating liquors for beverage
purposes).
It is also true, however, that "[a]s broad as the congressional
enforcement power is, it is not unlimited."
Oregon v.
519
Mitchell, supra, at 128 (opinion of Black, J.). In
assessing the breadth of § 5's enforcement power, we begin with its
text. Congress has been given the power "to enforce" the
"provisions of this article." We agree with respondent, of course,
that Congress can enact legislation under § 5 enforcing the
constitutional right to the free exercise of religion. The
"provisions of this article," to which § 5 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, 303
(1940), that the "fundamental concept of liberty embodied in [the
Fourteenth Amendment's Due Process Clause] embraces the liberties
guaranteed by the First Amendment." See also
United States
v.
Price, 383
U. S. 787, 789 (1966) (there is "no doubt of the power of
Congress to enforce by appropriate criminal sanction every right
guaranteed by the Due Process Clause of the Fourteenth Amendment"
(internal quotation marks and citation omitted)).
Congress' power under § 5, however, extends only to
"enforc[ing]" the provisions of the Fourteenth Amendment. The Court
has described this power as "remedial,"
South Carolina v.
Katzenbach, supra, at 326. The design of the Amendment and
the text of § 5 are inconsistent with the suggestion that Congress
has the power 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 Clause.
Congress does not enforce a constitutional right by changing what
the right is. It has been given the power "to enforce," not the
power to determine what constitutes a constitutional violation.
Were it not so, what Congress would be enforcing would no longer
be, in any meaningful sense, the "provisions of [the Fourteenth
Amendment]."
While the line between measures that remedy or prevent
unconstitutional actions and measures that make a substantive
change in the governing law is not easy to discern, and
520
Congress must have wide latitude in determining where it lies,
the distinction exists and must be observed. There must be a
congruence and proportionality between the injury to be prevented
or remedied and the means adopted to that end. Lacking such a
connection, legislation may become substantive in operation and
effect. History and our case law support drawing the distinction,
one apparent from the text of the Amendment.
1
The Fourteenth Amendment's history confirms the remedial, rather
than substantive, nature of the Enforcement Clause. The Joint
Committee on Reconstruction of the 39th Congress began drafting
what would become the Fourteenth Amendment in January 1866. The
objections to the Committee's first draft of the Amendment, and the
rejection of the draft, have a direct bearing on the central issue
of defining Congress' enforcement power. In February, Republican
Representative John Bingham of Ohio reported the following draft
Amendment to the House of Representatives on behalf of the Joint
Committee:
"The Congress shall have power to make all laws which shall be
necessary and proper to secure to the citizens of each State all
privileges and immunities of citizens in the several States, and to
all persons in the several States equal protection in the rights of
life, liberty, and property." Congo Globe, 39th Cong., 1st Sess.,
1034 (1866).
The proposal encountered immediate opposition, which continued
through three days of debate. Members of Congress from across the
political spectrum criticized the Amendment, and the criticisms had
a common theme: The proposed Amendment gave Congress too much
legislative power at the expense of the existing constitutional
structure. E. g., id., at 1063-1065 (statement of Rep. Hale); id.,
at 1082
521
(statement of Sen. Stewart); id., at 1095 (statement of Rep.
Hotchkiss); id., at App. 133-135 (statement of Rep. Rogers).
Democrats and conservative Republicans argued that the proposed
Amendment would give Congress a power to intrude into traditional
areas of state responsibility, a power inconsistent with the
federal design central to the Constitution. Typifying these views,
Republican Representative Robert Hale of New York labeled the
Amendment "an utter departure from every principle ever dreamed of
by the men who framed our Constitution," id., at 1063, and warned
that under it "all State legislation, in its codes of civil and
criminal jurisprudence and procedure ... may be overridden, may be
repealed or abolished, and the law of Congress established
instead."
Ibid. Senator William Stewart of Nevada likewise
stated the Amendment would permit "Congress to legislate fully upon
all subjects affecting life, liberty, and property," such that
"there would not be much left for the State Legislatures," and
would thereby "work an entire change in our form of government."
Id., at 1082; accord,
id., at 1087 (statement of Rep.
Davis); id., at App. 133 (statement of Rep. Rogers). Some radicals,
like their brethren "unwilling that Congress shall have any such
power ... to establish uniform laws throughout the United States
upon ... the protection of life, liberty, and property," id., at
1095 (statement of Rep. Hotchkiss), also objected that giving
Congress primary responsibility for enforcing legal equality would
place power in the hands of changing congressional majorities,
ibid. See generally Bickel, The Original Understanding and
the Segregation Decision, 69 Harv. L. Rev. 1, 57 (1955); Graham,
Our "Declaratory" Fourteenth Amendment, 7 Stan. L. Rev. 3, 21
(1954).
As a result of these objections having been expressed from so
many different quarters, the House voted to table the proposal
until April. See,
e. g., B. Kendrick, Journal of the Joint
Committee of Fifteen on Reconstruction 215, 217 (1914); Congo
Globe, 42d Cong., 1st Sess., App. 115 (1871) (statement
522
of Rep. Farnsworth). The congressional action was seen as
marking the defeat of the proposal. See The Nation, Mar. 8, 1866,
p. 291 ("The postponement of the amendment ... is conclusive
against the passage of [it]"); New York Times, Mar. 1, 1866, p. 4
("It is doubtful if this ever comes before the House again ... ");
see also Congo Globe, 42d Cong., 1st Sess., at App. 115 (statement
of Rep. Farnsworth) (The Amendment was "given its quietus by a
postponement for two months, where it slept the sleep that knows no
waking"). The measure was defeated "chiefly because many members of
the legal profession s[aw] in [it] ... a dangerous centralization
of power," The Nation,
supra, at 291, and "many leading
Republicans of thee] House [of Representatives] would not consent
to so radical a change in the Constitution," Congo Globe, 42d
Cong., 1st Sess., at App. 151 (statement of Rep. Garfield). The
Amendment in its early form was not again considered. Instead, the
Joint Committee began drafting a new article of Amendment, which it
reported to Congress on April 30, 1866.
Section 1 of the new draft Amendment imposed selfexecuting
limits on the States. Section 5 prescribed that "[t]he Congress
shall have power to enforce, by appropriate legislation, the
provisions of this article." See Congo Globe, 39th Cong., 1st
Sess., at 2286. Under the revised Amendment, Congress' power was no
longer plenary but remedial. Congress was granted the power to make
the substantive constitutional prohibitions against the States
effective. Representative Bingham said the new draft would give
Congress "the power ... to protect by national law the privileges
and immunities of all the citizens of the Republic ... whenever the
same shall be abridged or denied by the unconstitutional acts of
any State."
Id., at 2542. Representative Stevens described
the new draft Amendment as "allow[ing] Congress to correct the
unjust legislation of the States."
Id., at 2459. See also
id., at 2768 (statement of Sen. Howard) (§ 5 "enables
Congress, in case the States shall enact
523
laws in conflict with the principles of the amendment, to
correct that legislation by a formal congressional enactment"). See
generally H. Brannon, The Rights and Privileges Guaranteed by the
Fourteenth Amendment to the Constitution of the United States 387
(1901) (Congress' "powers are only prohibitive, corrective,
vetoing, aimed only at undue process of law"); id., at 420, 452-455
(same); T. Cooley, Constitutional Limitations 294, n. 1 (2d ed.
1871) ("This amendment of the Constitution does not concentrate
power in the general government for any purpose of police
government within the States; its object is to preclude legislation
by any State which shall 'abridge the privileges or immunities of
citizens of the United States' "). The revised Amendment proposal
did not raise the concerns expressed earlier regarding broad
congressional power to prescribe uniform national laws with respect
to life, liberty, and property. See,
e. g., Congo Globe, 42d
Cong., 1st Sess., at App. 151 (statement of Rep. Garfield) ("The
[Fourteenth Amendment] limited but did not oust the jurisdiction of
the State[s]"). After revisions not relevant here, the new measure
passed both Houses and was ratified in July 1868 as the Fourteenth
Amendment.
The significance of the defeat of the Bingham proposal was
apparent even then. During the debates over the Ku Klux Klan Act
only a few years after the Amendment's ratification, Representative
James Garfield argued there were limits on Congress' enforcement
power, saying "unless we ignore both the history and the language
of these clauses we cannot, by any reasonable interpretation, give
to [§ 5] ... the force and effect of the rejected [Bingham]
clause."
Ibid.; see also id., at App. 115-116 (statement of
Rep. Farnsworth). Scholars of successive generations have agreed
with this assessment. See H. Flack, The Adoption of the Fourteenth
Amendment 64 (1908); Bickel, The Voting Rights Cases, 1966
The design of the Fourteenth Amendment has proved significant
also in maintaining the traditional separation of pow-
524
ers between Congress and the Judiciary. The first eight
Amendments to the Constitution set forth self-executing
prohibitions on governmental action, and this Court has had primary
authority to interpret those prohibitions. The Bingham draft, some
thought, departed from that tradition by vesting in Congress
primary power to interpret and elaborate on the meaning of the new
Amendment through legislation. Under it, "Congress, and not the
courts, was to judge whether or not any of the privileges or
immunities were not secured to citizens in the several States."
Flack,
supra, at 64. While this separation-of-powers aspect
did not occasion the widespread resistance which was caused by the
proposal's threat to the federal balance, it nonetheless attracted
the attention of various Members. See Congo Globe, 39th Cong., 1st
Sess., at 1064 (statement of Rep. Hale) (noting that Bill of
Rights, unlike the Bingham proposal, "provide[s] safeguards to be
enforced by the courts, and not to be exercised by the
Legislature"); id., at App. 133 (statement of Rep. Rogers) (prior
to Bingham proposal it "was left entirely for the courts ... to
enforce the privileges and immunities of the citizens"). As
enacted, the Fourteenth Amendment confers substantive rights
against the States which, like the provisions of the Bill of
Rights, are self-executing. Cf.
South Carolina v.
Katzenbach, 383 U. S., at 325 (discussing Fifteenth
Amendment). The power to interpret the Constitution in a case or
controversy remains in the Judiciary.
2
The remedial and preventive nature of Congress' enforcement
power, and the limitation inherent in the power, were confirmed in
our earliest cases on the Fourteenth Amendment. In the
Civil
Rights Cases, 109
U. S. 3 (1883), the Court invalidated sections of the Civil
Rights Act of 1875 which prescribed criminal penalties for denying
to any person "the full enjoyment of" public accommodations and
conveyances, on the grounds that it exceeded Congress' power
525
by seeking to regulate private conduct. The Enforcement Clause,
the Court said, did not authorize Congress to pass "general
legislation upon the rights of the citizen, but corrective
legislation, that is, such as may be necessary and proper for
counteracting such laws as the States may adopt or enforce, and
which, by the amendment, they are prohibited from making or
enforcing .... "
Id., at 13-14. The power to "legislate
generally upon" life, liberty, and property, as opposed to the
"power to 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. 629, 639
(1883);
James v.
Bowman, 190 U. S. 127, 139
(1903). Although the specific holdings of these early cases might
have been superseded or modified, see,
e. g., Heart of Atlanta
Motel, Inc. v.
United States, 379 U. S. 241 (1964);
United States v.
Guest, 383 U. S. 745 (1966),
their treatment of Congress' §5 power as corrective or preventive,
not definitional, has not been questioned.
Recent cases have continued to revolve around the question
whether § 5 legislation can be considered remedial. In
South
Carolina v.
Katzenbach, supra, we emphasized that "[t]he
constitutional propriety of [legislation adopted under the
Enforcement Clause] must be judged with reference to the historical
experience ... it reflects." 383 U. S., at 308. There we upheld
various provisions of the Voting Rights Act of 1965, finding them
to be "remedies aimed at areas where voting discrimination has been
most flagrant," id., at 315, and necessary to "banish the blight of
racial discrimination in voting, which has infected the electoral
process in parts of our country for nearly a century," id., at 308.
We noted evidence in the record reflecting the subsisting and
pervasive discriminatory-and therefore unconstitutional-use of
literacy tests.
Id., at 333-334. The Act's new remedies,
which used the administrative resources of the Federal Government,
included the suspension of both literacy tests and,
526
pending federal review, all new voting regulations in covered
jurisdictions, as well as the assignment of federal examiners to
list qualified applicants enabling those listed to vote. The new,
unprecedented remedies were deemed necessary given the
ineffectiveness of the existing voting rights laws, see id., at
313-315, and the slow, costly character of case-by-case litigation,
id., at 328.
After
South Carolina v.
Katzenbach, the Court
continued to acknowledge the necessity of using strong remedial and
preventive measures to respond to the widespread and persisting
deprivation of constitutional rights resulting from this country's
history of racial discrimination. See
Oregon v.
Mitchell, 400 U. S., at 132 ("In enacting the literacy test
ban ... Congress had before it a long history of the discriminatory
use of literacy tests to disfranchise voters on account of their
race") (opinion of Black, J.); id., at 147 (Literacy tests "have
been used at times as a discriminatory weapon against some
minorities, not only Negroes but Americans of Mexican ancestry, and
American Indians") (opinion of Douglas, J.); id., at 216 ("Congress
could have determined that racial prejudice is prevalent throughout
the Nation, and that literacy tests unduly lend themselves to
discriminatory application, either conscious or unconscious")
(opinion of Harlan, J.); id., at 235 ("[T]here is no question but
that Congress could legitimately have concluded that the use of
literacy tests anywhere within the United States has the inevitable
effect of denying the vote to members of racial minorities whose
inability to pass such tests is the direct consequence of previous
governmental discrimination in education") (opinion of Brennan,
J.); id., at 284 ("[N]ationwide [suspension of literacy tests] may
be reasonably thought appropriate when Congress acts against an
evil such as racial discrimination which in varying degrees
manifests itself in every part of the country") (opinion of
Stewart, J.);
City of Rome, 446 U. S., at 182 ("Congress'
considered determination that at least another 7 years of statutory
remedies were necessary to counter the
527
perpetuation of 95 years of pervasive voting discrimination is
both unsurprising and unassailable");
Morgan, 384 U. S., at
656 (Congress had a factual basis to conclude that New York's
literacy requirement "constituted an invidious discrimination in
violation of the Equal Protection Clause").
3
Any suggestion that Congress has a substantive, nonremedial
power under the Fourteenth Amendment is not supported by our case
law. In
Oregon v.
Mitchell, supra, at 112, a majority
of the Court concluded Congress had exceeded its enforcement powers
by enacting legislation lowering the minimum age of voters from 21
to 18 in state and local elections. The five Members of the Court
who reached this conclusion explained that the legislation intruded
into an area reserved by the Constitution to the States. See 400 U.
S., at 125 (concluding that the legislation was unconstitutional
because the Constitution "reserves to the States the power to set
voter qualifications in state and local elections") (opinion of
Black, J.); id., at 154 (explaining that the "Fourteenth Amendment
was never intended to restrict the authority of the States to
allocate their political power as they see fit") (opinion of
Harlan, J.); id., at 294 (concluding that States, not Congress,
have the power "to establish a qualification for voting based on
age") (opinion of Stewart, J., joined by Burger, C. J., and
Blackmun, J.). Four of these five were explicit in rejecting the
position that § 5 endowed Congress with the power to establish the
meaning of constitutional provisions. See id., at 209 (opinion of
Harlan, J.); id., at 296 (opinion of Stewart, J.). Justice Black's
rejection of this position might be inferred from his disagreement
with Congress' interpretation of the Equal Protection Clause. See
id., at 125.
There is language in our opinion in
Katzenbach v.
Morgan, 384 U.
S. 641 (1966), which could be interpreted as acknowledging a
power in Congress to enact legislation that expands
528
the rights contained in § 1 of the Fourteenth Amendment. This is
not a necessary interpretation, however, or even the best one. In
Morgan, the Court considered the constitutionality of §4(e)
of the Voting Rights Act of 1965, which provided that no person who
had successfully completed the sixth primary grade in a public
school in, or a private school accredited by, the Commonwealth of
Puerto Rico in which the language of instruction was other than
English could be denied the right to vote because of an inability
to read or write English. New York's Constitution, on the other
hand, required voters to be able to read and write English. The
Court provided two related rationales for its conclusion that §
4(e) could "be viewed as a measure to secure for the Puerto Rican
community residing in New York nondiscriminatory treatment by
government."
Id., at 652. Under the first rationale,
Congress could prohibit New York from denying the right to vote to
large segments of its Puerto Rican community, in order to give
Puerto Ricans "enhanced political power" that would be "helpful in
gaining nondiscriminatory treatment in public services for the
entire Puerto Rican community."
Ibid. Section 4(e) thus
could be justified as a remedial measure to deal with
"discrimination in governmental services."
Id., at 653. The
second rationale, an alternative holding, did not address
discrimination in the provision of public services but
"discrimination in establishing voter qualifications."
Id.,
at 654. The Court perceived a factual basis on which Congress could
have concluded that New York's literacy requirement "constituted an
invidious discrimination in violation of the Equal Protection
Clause."
Id., at 656. Both rationales for upholding §4(e)
rested on unconstitutional discrimination by New York and Congress'
reasonable attempt to combat it. As Justice Stewart explained in
Oregon v.
Mitchell, supra, at 296, interpreting
Morgan to give Congress the power to interpret the
Constitution "would require an enormous extension of that
decision's rationale."
529
If Congress could define its own powers by altering the
Fourteenth Amendment's meaning, no longer would the Constitution be
"superior paramount law, unchangeable by ordinary means." It would
be "on a level with ordinary legislative acts, and, like other
acts, ... alterable when the legislature shall please to alter it."
Marbury v.
Madison, 1 Cranch, at 177. Under this
approach, it is difficult to conceive of a principle that would
limit congressional power. See Van Alstyne, The Failure of the
Religious Freedom Restoration Act under Section 5 of the Fourteenth
Amendment, 46 Duke L. J. 291, 292-303 (1996). Shifting legislative
majorities could change the Constitution and effectively circumvent
the difficult and detailed amendment process contained in Article
V.
We now turn to consider whether RFRA can be considered
enforcement legislation under § 5 of the Fourteenth Amendment.
B
Respondent contends that RFRA is a proper exercise of Congress'
remedial or preventive power. The Act, it is said, is a reasonable
means of protecting the free exercise of religion as defined by
Smith. It prevents and remedies laws which are enacted with
the unconstitutional object of targeting religious beliefs and
practices. See
Church of Lukumi Babalu Aye, Inc. v.
Hialeah, 508
U. S. 520, 533 (1993) ("[A] law targeting religious beliefs as
such is never permissible"). To avoid the difficulty of proving
such violations, it is said, Congress can simply invalidate any law
which imposes a substantial burden on a religious practice unless
it is justified by a compelling interest and is the least
restrictive means of accomplishing that interest. If Congress can
prohibit laws with discriminatory effects in order to prevent
racial discrimination in violation of the Equal Protection Clause,
see
Fullilove v.
Klutznick, 448 U. S. 448, 477 (1980)
(plurality opinion);
City of Rome, 446 U. S., at 177, then
it can do the same, respondent argues, to promote religious
liberty.
530
While preventive rules are sometimes appropriate remedial
measures, there must be a congruence between the means used and the
ends to be achieved. The appropriateness of remedial measures must
be considered in light of the evil presented. See
South
Carolina v.
Katzenbach, 383 U. S., at 308. Strong
measures appropriate to address one harm may be an unwarranted
response to another, lesser one.
Id., at 334.
A comparison between RFRA and the Voting Rights Act is
instructive. In contrast to the record which confronted Congress
and the Judiciary in the voting rights cases, RFRA's legislative
record lacks examples of modern instances of generally applicable
laws passed because of religious bigotry. The history of
persecution in this country detailed in the hearings mentions no
episodes occurring in the past 40 years. See,
e. g.,
Religious Freedom Restoration Act of 1991, Hearings on H. R. 2797
before the Subcommittee on Civil and Constitutional Rights of the
House Committee on the Judiciary, 102d Cong., 2d Sess., 331-334
(1993) (statement of Douglas Laycock) (House Hearings); The
Religious Freedom Restoration Act, Hearing on S. 2969 before the
Senate Committee on the Judiciary, 102d Cong., 2d Sess., 30-31
(1993) (statement of DaHin H. Oaks) (Senate Hearing); id., at 68-76
(statement of Douglas Laycock); Religious Freedom Restoration Act
of 1990, Hearing on H. R. 5377 before the Subcommittee on Civil and
Constitutional Rights of the House Committee on the Judiciary,
101st Cong., 2d Sess., 49 (1991) (statement of John H. Buchanan,
Jr.) (1990 House Hearing). The absence of more recent episodes
stems from the fact that, as one witness testified, "deliberate
persecution is not the usual problem in this country." House
Hearings 334 (statement of Douglas Laycock). See also House Report
2 ("[L]aws directly targeting religious practices have become
increasingly rare"). Rather, the emphasis of the hearings was on
laws of general applicability which place incidental burdens on
religion. Much of the discussion cen-
531
tered upon anecdotal evidence of autopsies performed on Jewish
individuals and Hmong immigrants in violation of their religious
beliefs, see,
e. g., House Hearings 81 (statement of Nadine
Strossen); id., at 107-110 (statement of William Yang); id., at 118
(statement of Rep. Stephen J. Solarz); id., at 336 (statement of
Douglas Laycock); Senate Hearing 5-6, 14-26 (statement of William
Yang); id., at 27-28 (statement of Hmong-Lao Unity Assn., Inc.);
id., at 50 (statement of Baptist Joint Committee); see also Senate
Report 8; House Report 5-6, and n. 14, and on zoning regulations
and historic preservation laws (like the one at issue here), which,
as an incident of their normal operation, have adverse effects on
churches and synagogues. See,
e. g., House Hearings 17, 57
(statement of Robert P. Dugan, Jr.); id., at 81 (statement of
Nadine Strossen); id., at 122-123 (statement of Rep. Stephen J.
Solarz); id., at 157 (statement of Edward M. Gaffney, Jr.); id., at
327 (statement of Douglas Laycock); Senate Hearing 143-144
(statement of Forest D. Montgomery); 1990 House Hearing 39
(statement of Robert P. Dugan, Jr.); see also Senate Report 8;
House Report 5-6, and n. 14. It is difficult to maintain that they
are examples of legislation enacted or enforced due to animus or
hostility to the burdened religious practices or that they indicate
some widespread pattern of religious discrimination in this
country. Congress' concern was with the incidental burdens imposed,
not the object or purpose of the legislation. See House Report 2;
Senate Report 4-5; House Hearings 64 (statement of Nadine
Strossen); id., at 117-118 (statement of Rep. Stephen J. Solarz);
1990 House Hearing 14 (statement of Rep. Stephen J. Solarz). This
lack of support in the legislative record, however, is not RFRA's
most serious shortcoming. Judicial deference, in most cases, is
based not on the state of the legislative record Congress compiles
but "on due regard for the decision of the body constitutionally
appointed to decide."
Oregon v.
Mitchell, 400 U. S.,
at 207 (opinion of Harlan, J.). As a gen-
532
eral matter, it is for Congress to determine the method by which
it will reach a decision.
Regardless of the state of the legislative record, RFRA cannot
be considered remedial, preventive legislation, if those terms are
to have any meaning. RFRA is so out of proportion to a supposed
remedial or preventive object that it cannot be understood as
responsive to, or designed to prevent, unconstitutional behavior.
It appears, instead, to attempt a substantive change in
constitutional protections. Preventive measures prohibiting certain
types of laws may be appropriate when there is reason to believe
that many of the laws affected by the congressional enactment have
a significant likelihood of being unconstitutional. See
City of
Rome, 446 U. S., at 177 (since "jurisdictions with a
demonstrable history of intentional racial discrimination ...
create the risk of purposeful discrimination," Congress could
"prohibit changes that have a discriminatory impact" in those
jurisdictions). Remedial legislation under § 5 "should be adapted
to the mischief and wrong which the [Fourteenth] [A]mendment was
intended to provide against."
Civil Rights Cases, 109 U. S.,
at 13.
RFRA is not so confined. Sweeping coverage ensures its intrusion
at every level of government, displacing laws and prohibiting
official actions of almost every description and regardless of
subject matter. RFRA's restrictions apply to every agency and
official of the Federal, State, and local Governments. 42 U. S. C.
§ 2000bb-2(1). RFRA applies to all federal and state law, statutory
or otherwise, whether adopted before or after its enactment. §
2000bb-3(a). RFRA has no termination date or termination mechanism.
Any law is subject to challenge at any time by any individual who
alleges a substantial burden on his or her free exercise of
religion.
The reach and scope of RFRA distinguish it from other measures
passed under Congress' enforcement power, even in the area of
voting rights. In
South Carolina v.
Katzenbach, the
challenged provisions were confined to those re-
533
gions of the country where voting discrimination had been most
flagrant, see 383 U. S., at 315, and affected a discrete class of
state laws, i.
e., state voting laws. Furthermore, to ensure
that the reach of the Voting Rights Act was limited to those cases
in which constitutional violations were most likely (in order to
reduce the possibility of overbreadth), the coverage under the Act
would terminate "at the behest of States and political subdivisions
in which the danger of substantial voting discrimination has not
materialized during the preceding five years."
Id., at 331.
The provisions restricting and banning literacy tests, upheld in
Katzenbach v.
Morgan, 384 U. S. 641 (1966), and
Oregon v.
Mitchell, supra, attacked a particular type
of voting qualification, one with a long history as a "notorious
means to deny and abridge voting rights on racial grounds."
South Carolina v.
Katzenbach, 383 U. S., at 355
(Black, J., concurring and dissenting). In
City of Rome,
supra, the Court rejected a challenge to the constitutionality
of a Voting Rights Act provision which required certain
jurisdictions to submit changes in electoral practices to the
Department of Justice for preimplementation review. The requirement
was placed only on jurisdictions with a history of intentional
racial discrimination in voting.
Id., at 177. Like the
provisions at issue in
South Carolina v.
Katzenbach,
this provision permitted a covered jurisdiction to avoid
preclearance requirements under certain conditions and, moreover,
lapsed in seven years. This is not to say, of course, that § 5
legislation requires termination dates, geographic restrictions, or
egregious predicates. Where, however, a congressional enactment
pervasively prohibits constitutional state action in an effort to
remedy or to prevent unconstitutional state action, limitations of
this kind tend to ensure Congress' means are proportionate to ends
legitimate under § 5.
The stringent test RFRA demands of state laws reflects a lack of
proportionality or congruence between the means adopted and the
legitimate end to be achieved. If an objector can show a
substantial burden on his free exercise, the
534
State must demonstrate a compelling governmental interest and
show that the law is the least restrictive means of furthering its
interest. Claims that a law substantially burdens someone's
exercise of religion will often be difficult to contest. See
Smith, 494 U. S., at 887 ("What principle of law or logic
can be brought to bear to contradict a believer's assertion that a
particular act is 'central' to his personal faith?"); id., at 907
("The distinction between questions of centrality and questions of
sincerity and burden is admittedly fine ... ") (O'CONNOR, J.,
concurring in judgment). Requiring a State to demonstrate a
compelling interest and show that it has adopted the least
restrictive means of achieving that interest is the most demanding
test known to constitutional law. If " 'compelling interest' really
means what it says ... , many laws will not meet the test .... [The
test] would open the prospect of constitutionally required
religious exemptions from civic obligations of almost every
conceivable kind."
Id., at 888. Laws valid under
Smith would fall under RFRA without regard to whether they
had the object of stifling or punishing free exercise. We make
these observations not to reargue the position of the majority in
Smith but to illustrate the substantive alteration of its
holding attempted by RFRA. Even assuming RFRA would be interpreted
in effect to mandate some lesser test, say, one equivalent to
intermediate scrutiny, the statute nevertheless would require
searching judicial scrutiny of state law with the attendant
likelihood of invalidation. This is a considerable congressional
intrusion into the States' traditional prerogatives and general
authority to regulate for the health and welfare of their
citizens.
The substantial costs RFRA exacts, both in practical terms of
imposing a heavy litigation burden on the States and in terms of
curtailing their traditional general regulatory power, far exceed
any pattern or practice of unconstitutional conduct under the Free
Exercise Clause as interpreted in
Smith. Simply put, RFRA is
not designed to identify and counteract state laws likely to be
unconstitutional because of
535
their treatment of religion. In most cases, the state laws to
which RFRA applies are not ones which will have been motivated by
religious bigotry. If a state law disproportionately burdened a
particular class of religious observers, this circumstance might be
evidence of an impermissible legislative 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 on a
large class of individuals. When the exercise of religion has been
burdened in an incidental way by a law of general 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 in every case a
least restrictive means requirement-a requirement that was not used
in the
pre-Smith jurisprudence RFRA purported to
codify-which also indicates that the legislation is broader than is
appropriate if the goal is to prevent and remedy constitutional
violations.
When Congress acts within its sphere of power and
responsibilities, it has not just the right but the duty to make
its own informed judgment on the meaning and force of the
Constitution. This has been clear from the early days of the
Republic. In 1789, when a Member of the House of Representatives
objected to a debate on the constitutionality of 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 incontrovertibly of as much
importance to this branch of the Government as to any other, that
the constitution should be preserved entire. It is our duty." 1
Annals of Congress 500 (1789). Were it otherwise, we would not
afford Congress the presumption of validity its enactments now
enjoy.
Our national experience teaches that the Constitution is
preserved best when each part of the Government respects
536
both the Constitution and the proper actions and determinations
of the other branches. When the Court has interpreted the
Constitution, it has acted within the province of the Judicial
Branch, which embraces the duty to say what the law is.
Marbury v.
Madison, 1 Cranch, at 177. When the
political branches of the Government act against the background of
a judicial interpretation of the Constitution already issued, it
must be understood that in later cases and controversies the Court
will treat its precedents with the respect due them under settled
principles, including
stare decisis, and contrary
expectations must be disappointed. RFRA was designed to control
cases and controversies, such as the one before us; but as the
provisions of the federal statute here invoked are beyond
congressional authority, it is this Court's precedent, not RFRA,
which must control.
***
It is for Congress in the first instance to "determin[e] whether
and what legislation is needed to secure the guarantees of the
Fourteenth Amendment," and its conclusions are entitled to much
deference.
Katzenbach v.
Morgan, 384 U. S., at 651.
Congress' discretion is not unlimited, however, and the courts
retain the power, as they have since
Marbury v.
Madison, to determine if Congress has exceeded its authority
under the Constitution. Broad as the power of Congress is under the
Enforcement Clause of the Fourteenth Amendment, RFRA contradicts
vital principles necessary to maintain separation of powers and the
federal balance. The judgment of the Court of Appeals sustaining
the Act's constitutionality is reversed.
It is so ordered.
JUSTICE STEVENS, concurring.
In my opinion, the Religious Freedom Restoration Act of 1993
(RFRA) is a "law respecting an establishment of religion" that
violates the First Amendment to the Constitution.
537
If the historic landmark on the hill in Boerne happened to be a
museum or an art gallery owned by an atheist, it would not be
eligible for an exemption from the city ordinances that forbid an
enlargement of the structure. Because the landmark is owned by the
Catholic Church, it is claimed that RFRA gives its owner a federal
statutory entitlement to an exemption from a generally applicable,
neutral civil law. Whether the Church would actually prevail under
the statute or not, the statute has provided the Church with a
legal weapon that no atheist or agnostic can obtain. This
governmental preference for religion, as opposed to irreligion, is
forbidden by the First Amendment.
Wallace v.
Jaffree,
472 U. S. 38,
52-55 (1985).
JUSTICE SCALIA, with whom JUSTICE STEVENS joins, concurring in
part.
I write to respond briefly to the claim of JUSTICE O'CONNOR'S
dissent (hereinafter the dissent) that historical materials support
a result contrary to the one reached in
Employment Div., Dept.
of Human Resources of Ore. v.
Smith, 494 U. S. 872 (1990). See
post, 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
law of general applicability on the ground that the law proscribes
(or prescribes) conduct that his religion prescribes (or
proscribes).'" 494 U. S., at 879 (quoting
United States v.
Lee, 455 U. S.
252, 263, n. 3 (1982) (STEVENS, J., concurring in judgment)).
The material that the dissent claims is at odds with
Smith
either has little to 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 most prominent scholarly
critic of
Smith, who, after an extensive review of the
historical record, was willing to venture no more than that
"constitu-
538
SCALIA, J., concurring in part
tionally compelled exemptions [from generally applicable laws
regulating conduct] were
within the contemplation of the
framers and ratifiers as a
possible interpretation of the
free exercise clause." McConnell, The Origins and Historical
Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409,
1415 (1990) (emphasis added); see also Hamburger, A Constitutional
Right of Religious Exemption: An Historical Perspective, 60 Geo.
Wash. Law Rev. 915 (1992) (arguing that historical evidence
supports
Smith's interpretation of free exercise).
The dissent first claims that
Smith's interpretation of
the Free Exercise Clause departs from the understanding reflected
in various statutory and constitutional protections of religion
enacted by Colonies, States, and Territories in the period leading
up to the ratification of the Bill of Rights.
Post, at
550-557. But the protections afforded by those enactments are in
fact more consistent with
Smith's interpretation of free
exercise than with the dissent's understanding of it. The Free
Exercise Clause, the dissent claims, "is best understood as an
affirmative guarantee of the right to participate in religious
practices and conduct without impermissible governmental
interference, even when such conduct conflicts with a neutral,
generally applicable law"; thus, even neutral laws of general
application may be invalid if they burden religiously motivated
conduct.
Post, at 546. However, the early "free exercise"
enactments cited by the dissent protect only against action that is
taken "for" or "in respect of" religion,
post, at 551-553
(Maryland Act Concerning Religion of 1649, Rhode Island Charter of
1663, and New Hampshire Constitution); or action taken "on account
of" religion,
post, at 553-554 (Maryland Declaration of
Rights of 1776 and Northwest Ordinance of 1787); or
"discriminat[ory]" action,
post, at 553 (New York
Constitution); or, finally (and unhelpfully for purposes of
interpreting "free exercise" in the Federal Constitution), action
that interferes with the "free exercise" of religion,
post,
at 551, 554 (Maryland Act
539
Concerning Religion of 1649 and Georgia Constitution). It is
eminently arguable that application of neutral, generally
applicable laws of the sort the dissent refers to-such as zoning
laws,
post, at 547-would not constitute action taken "for,"
"in respect of," or "on account of" one's religion, or
"discriminatory" action.
Assuming, however, that the affirmative protection of religion
accorded by the early "free exercise" enactments sweeps as broadly
as the dissent's theory would require, those enactments do not
support the dissent's view, since they contain "provisos" that
significantly qualify the affirmative protection they grant.
According to the dissent, the "provisos" support
its view
because they would have been "superfluous" if "the Court was
correct in
Smith that generally applicable laws are
enforceable regardless of religious conscience."
Post, at
554-555. I disagree. In fact, the most plausible reading of the
"free exercise" enactments (if their affirmative provisions are
read broadly, as the dissent's view requires) is a virtual
restatement of
Smith: Religious exercise shall be permitted
so long as it does not violate general laws governing
conduct. The "provisos" in the enactments negate a license to
act in a manner "unfaithfull to the Lord Proprietary" (Maryland Act
Concerning Religion of 1649), or "behav[e]" in other than a
"peaceabl[e] and quie[t]" manner (Rhode Island Charter of 1663), or
"disturb the public peace" (New Hampshire Constitution), or
interfere with the "peace [and] safety ofth[e] State" (New York,
Maryland, and Georgia Constitutions), or "demea[n]" oneself in
other than a "peaceable and orderly manner" (Northwest Ordinance of
1787). See
post, at 551-554. At the time these provisos were
enacted, keeping "peace" and "order" seems to have meant,
precisely, obeying the laws. "[E]very breach of a law is against
the peace."
Queen v.
Lane, 6 Mod. 128,87 Eng. Rep.
884,885 (Q. B. 1704). Even as late as 1828, when Noah Webster
published his American Dictionary of the English Language, he gave
as one of the meanings of "peace": "8. Public
540
SCALIA, J., concurring in part
tranquility; that quiet, order and security which is guaranteed
by the laws; as, to keep the
peace; to break the
peace." 2 An American Dictionary of the English Language 31
(1828).1 This limitation upon the scope of religious exercise would
have been in accord with the background political philosophy of the
age (associated most prominently with John Locke), which regarded
freedom as the right "to do only what was not lawfully prohibited,"
West, The Case Against a Right to Religion-Based Exemptions, 4
Notre Dame J. L., Ethics & Pub. Pol'y 591, 624 (1990). "Thus,
the disturb-thepeace caveats apparently permitted government to
deny religious freedom, not merely in the event of violence or
force, but, more generally, upon the occurrence of illegal
actions." Hamburger,
supra, at 918-919.2 And while, under
this interpretation, these early "free exercise" enactments support
the Court's judgment in
Smith, I see no sensible
interpretation that could cause them to support what I understand
to be the position of JUSTICE O'CONNOR, or any of
Smith's
other critics. No one in that camp, to my knowledge, contends that
their favored "compelling state interest" test conforms to any
possible interpretation of "breach of peace and order"-i.
e., that
only violence or force, or any other
category of action (more limited than "violation of law") which can
possibly be conveyed by the phrase "peace and order," justifies
state prohibition of religiously motivated conduct.
1 The word "licentious," used in several of the early
enactments, likewise meant "[e]xceeding the limits of law." 2 An
American Dictionary of the English Language 6 (1828).
2 The same explanation applies, of course, to George Mason's
initial draft of Virginia's religious liberty clause, see
post, at 555. When it said "unless, under colour of
religion, any man disturb the peace ... of society," it probably
meant "unless under color of religion any man break the law." Thus,
it is not the case that"
both Mason's and [James] Madison's
formulations envisioned that, when there was a conflict [between
religious exercise and generally applicable laws], a person's
interest in freely practicing his religion was to be balanced
against state interests,"
post, at 556-at least insofar as
regulation of
conduct was concerned.
541
Apart from the early "free exercise" enactments of Colonies,
States, and Territories, the dissent calls attention to those
bodies', and the Continental Congress's, legislative accommodation
of religious practices prior to ratification of the Bill of Rights.
Post, at 557-560. This accommodation-which took place both
before and after enactment of the state constitutional protections
of religious liberty-suggests (according to the dissent) that "the
drafters and ratifiers of the First Amendment ... assumed courts
would apply the Free Exercise Clause similarly."
Post, at
560. But that legislatures sometimes (though not always) 3 found it
"appropriate,"
post, at 559, to accommodate religious
practices does not establish that accommodation was understood to
be constitutionally mandated by the Free Exercise Clause. As we
explained in Smith, "to say that a nondiscriminatory
religious-practice exemption is permitted, or even that it is
desirable, is not to say that it is constitutionally required." 494
U. S., at 890. "Values that are protected against government
interference through enshrinement in the Bill of Rights are not
thereby banished from the political process."
Ibid.
The dissent's final source of claimed historical support
consists of statements of certain of the Framers in the context of
debates about proposed legislative enactments or debates over
general principles (not in connection with the drafting of State or
Federal Constitutions). Those statements are subject to the same
objection as was the evidence about legislative accommodation:
There is no reason to think they were meant to describe what was
constitutionally required (and judicially enforceable), as opposed
to what was thought to be legislatively or even morally desirable.
Thus, for example, the pamphlet written by James Madison opposing
Virginia's proposed general assessment for support of reli-
3 The dissent mentions, for example, that only 7 of the 13
Colonies had exempted Quakers from military service by the
mid-1700's; and that
"virtually all" of the States had
enacted oath exemptions by 1789. Post, at 558 (emphasis added).
542
SCALIA, J., concurring in part
gion,
post, at 560-561, does not argue that the
assessment would violate the "free exercise" provision in the
Virginia Declaration of Rights, although that provision had been
enacted into law only eight years earlier,
post, at 556;
rather the pamphlet argues that the assessment wrongly placed civil
society ahead of personal religious belief and, thus, should not be
approved by the legislators,
post, at 560-561. Likewise, the
letter from George Washington to the Quakers,
post, at 562,
by its own terms refers to Washington's "wish and desire" that
religion be accommodated, not his belief that existing
constitutional provisions required accommodation. These and other
examples offered by the dissent reflect the speakers' views of the
"proper" relationship between government and religion,
post,
at 563, but not their views (at least insofar as the content or
context of the material suggests) of the constitutionally required
relationship. The one exception is the statement by Thomas
Jefferson that he considered "the government of the United States
as interdicted by the Constitution from intermeddling with
religious institutions, their doctrines, discipline, or exercises,"
post, at 562 (internal quotation marks omitted); but it is
quite clear that Jefferson did not in fact espouse the broad
principle of affirmative accommodation advocated by the dissent,
see McConnell, 103 Harv. L. Rev., at 1449-1452.
It seems to me that the most telling point made by the dissent
is to be found, not in what it says, but in what it fails to say.
Had the understanding in the period surrounding the ratification of
the Bill of Rights been that the various forms of accommodation
discussed by the dissent were constitutionally required (either by
State Constitutions or by the Federal Constitution), it would be
surprising not to find a single state or federal case refusing to
enforce a generally applicable statute because of its failure to
make accommodation. Yet the dissent cites none-and to my knowledge,
and to the knowledge of the academic defenders of the dissent's
position, see,
e. g., id., at 1504, 1506-1511 (discussing
early
543
cases), none exists. The closest one can come in the period
prior to 1850 is the decision of a New York City municipal court in
1813, holding that the New York Constitution of 1777, quoted
post, at 553, required acknowledgment of a priest-penitent
privilege, to protect a Catholic priest from being compelled to
testify as to the contents of a confession.
People v.
Phillips, Court of General Sessions, City of New York (June
14, 1813), excerpted in Privileged Communications to Clergymen, 1
Cath. Law. 199 (1955). 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 result might possibly have been
achieved (without invoking constitutional entitlement) 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 the Supreme Court of
Pennsylvania, flatly rejecting the dissent's view. In
Simon's
Executors v.
Gratz, 2 Pen. & W. 412 (Pa. 1831), the
court held that a litigant was not entitled to a continuance of
trial on the ground that appearing on his Sabbath would violate his
religious principles. And in
Stansbury v.
Marks, 2
Dall. 213 (Pa. 1793), decided just two years 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 this response to the new items of "historical
evidence" brought forward by today's dissent. (The dis-
4 The 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 American
Biography 221-222, 224 (1943).
5 Indeed, the author of
Simon's Executors could well have
written
Smith: "[C]onsiderations of policy address
themselves with propriety to the legislature, and not to a
magistrate whose course is prescribed not by discretion, but rules
already established." 2 Pen. & W., at 417.
544
sent's claim that "[b]efore
Smith, our free exercise
cases were generally in keeping" with the dissent's view,
post, at 546, is adequately answered in
Smith
itself.) The historical evidence marshalled by the dissent cannot
fairly be said to demonstrate the correctness of
Smith; but
it is more supportive of that conclusion than destructive of it.
And, to return to a point I made earlier, that evidence is not
compatible with any theory I am familiar with that has been
proposed as an alternative to
Smith. The dissent's approach
has, of course, great popular attraction. Who can possibly be
against the abstract proposition that government should not, even
in its general, nondiscriminatory laws, place unreasonable burdens
upon religious practice? Unfortunately, however, that abstract
proposition must ultimately be reduced to concrete cases. The issue
presented by
Smith is, quite simply, whether the people,
through their elected representatives, or rather this Court, shall
control the outcome of those concrete cases. For example, shall it
be the determination of this Court, or rather of the people,
whether (as the dissent apparently believes,
post, at 547)
church construction will be exempt from zoning laws? The historical
evidence put forward by the dissent does nothing to undermine the
conclusion we reached in
Smith: It shall be the people.
JUSTICE O'CONNOR, with whom JUSTICE BREYER joins except as to
the first paragraph of Part I, dissenting.
I dissent from the Court's disposition of this case. I agree
with the Court that the issue before us is whether the Religious
Freedom Restoration Act of 1993 (RFRA) is a proper exercise of
Congress' power to enforce § 5 of the Fourteenth Amendment. But as
a yardstick for measuring the constitutionality of RFRA, the Court
uses its holding in
Employment Div., Dept. of Human Resources of
Ore. v.
Smith, 494 U. S. 872 (1990), the
decision that prompted Congress to enact RFRA as a means of more
rigorously enforcing the Free Exercise Clause. I remain of the view
that
Smith was
545
wrongly decided, and I would use this case to reexamine the
Court's holding there. Therefore, I would direct the parties to
brief the question whether
Smith represents the correct
understanding of the Free Exercise Clause and set the case for
reargument. If the Court were to correct the misinterpretation of
the Free Exercise Clause set forth in
Smith, it would
simultaneously put our First Amendment jurisprudence back on course
and allay the legitimate concerns of a majority in Congress who
believed that
Smith improperly restricted religious liberty.
We would then be in a position to review RFRA in light of a proper
interpretation of the Free Exercise Clause.
I
I agree with much of the reasoning set forth in Part II I-A of
the Court's opinion. Indeed, if I agreed with the Court's standard
in
Smith, I would join the opinion. As the Court's careful
and thorough historical analysis shows, Congress lacks the "power
to decree the
substance of the Fourteenth Amendment's
restrictions on the States."
Ante, at 519 (emphasis added).
Rather, its power under § 5 of the Fourteenth Amendment extends
only to
enforcing the Amendment's provisions. In short,
Congress lacks the ability independently to define or expand the
scope of constitutional rights by statute. Accordingly, whether
Congress has exceeded its § 5 powers turns on whether there is a
"congruence and proportionality between the injury to be prevented
or remedied and the means adopted to that end."
Ante, at
520. This recognition does not, of course, in any way diminish
Congress' obligation to draw its own conclusions regarding the
Constitution's meaning. Congress, no less than this Court, is
called upon to consider the requirements of the Constitution and to
act in accordance with its dictates. But when it enacts legislation
in furtherance of its delegated powers, Congress must make its
judgments consistent with this Court's exposition of the
Constitution and with the lim-
546
its placed on its legislative authority by provisions such as
the Fourteenth Amendment.
The Court's analysis of whether RFRA is a constitutional
exercise of Congress' § 5 power, set forth in Part III-B of its
opinion, is premised on the assumption that
Smith correctly
interprets the Free Exercise Clause. This is an assumption that I
do not accept. I continue to believe that
Smith adopted an
improper standard for deciding free exercise claims. In
Smith, five Members of this Court-without briefing or
argument on the issue-interpreted the Free Exercise Clause to
permit the government to prohibit, without justification, conduct
mandated by an individual's religious beliefs, so long as the
prohibition is generally applicable. Contrary to the Court's
holding in that case, however, the Free Exercise Clause is not
simply an antidiscrimination principle that protects only against
those laws that single out religious practice for unfavorable
treatment. See
Smith, supra, at 892-903 (O'CONNOR, J.,
concurring in judgment). Rather, the Clause is best understood as
an affirmative guarantee of the right to participate in religious
practices and conduct without impermissible governmental
interference, even when such conduct conflicts with a neutral,
generally applicable law. Before
Smith, our free exercise
cases were generally in keeping with this idea: where a law
substantially burdened religiously motivated conductregardless
whether it was specifically targeted at religion or applied
generally-we required government to justify that law with a
compelling state interest and to use means narrowly tailored to
achieve that interest. See 494 U. S., at 894 (citing
Hernandez v.
Commissioner, 490 U. S. 680, 699
(1989);
Hobbie v.
Unemployment Appeals Comm'n of
Fla., 480 U. S.
136, 141 (1987);
United States v.
Lee, 455 U. S. 252, 257-258
(1982); McDaniel v.
Paty, 435 U. S. 618, 626-629
(1978);
Wisconsin v.
Yoder, 406 U. S. 205, 215
(1972);
Gillette v.
United States, 401 U. S. 437, 462
(1971);
Sherbert v.
Verner, 374 U. S. 398,403
(1963)).
547
The Court's rejection of this principle in
Smith is
supported neither by precedent nor, as discussed below, by history.
The decision has harmed religious liberty. For example, a Federal
District Court, in reliance on
Smith, ruled that the Free
Exercise Clause was not implicated where Hmong natives objected on
religious grounds to their son's autopsy, conducted pursuant to a
generally applicable state law.
Yang v.
Sturner, 750
F. Supp. 558, 559 (RI 1990). The Court of Appeals for the Eighth
Circuit held that application of a city's zoning laws to prevent a
church from conducting services in an area zoned for commercial
uses raised no free exercise concerns, even though the city
permitted secular notfor-profit organizations in that area.
Cornerstone Bible Church v.
Hastings, 948 F.2d
464 (1991); see also
Rector of St. Bartholomew's Church
v.
New York, 914 F.2d
348, 355 (CA2 1990) (no free exercise claim where city's
application of facially neutral landmark designation law
"drastically restricted the Church's ability to raise revenue to
carry out its various charitable and ministerial programs"), cert.
denied, 499 U. S. 905 (1991);
State v.
Hershberger,
462 N. W. 2d 393 (Minn. 1990) (Free Exercise Clause provided no
basis for exempting an Amish farmer from displaying a bright orange
triangle on his buggy, to which the farmer objected on religious
grounds, even though the evidence showed that some other material
would have served the State's purpose equally well). These cases
demonstrate that lower courts applying
Smith no longer find
necessary a searching judicial inquiry into the possibility of
reasonably accommodating religious practice.
Stare decisis concerns should not prevent us from
revisiting our holding in
Smith. "'[S]tare decisis is a
principle of policy and not a mechanical formula of adherence to
the latest decision, however recent and questionable, when such
adherence involves collision with a prior doctrine more embracing
in its scope, intrinsically sounder, and verified by experience.'"
Adarand Constructors, Inc. v.
Peria, 515 U. S.
548
200, 231 (1995) (quoting
Helvering v.
Hallock,
309 U. S. 106,
119 (1940)). This principle is particularly true in constitutional
cases, where-as this case so plainly illustrates-"correction
through legislative action is practically impossible."
Seminole
Tribe of Fla. v.
Florida, 517 U. S. 44, 63 (1996)
(internal quotation marks and citation omitted). I believe that, in
light of both our precedent and our Nation's tradition of religious
liberty,
Smith is demonstrably wrong. Moreover, it is a
recent decision. As such, it has not engendered the kind of
reliance on its continued application that would militate against
overruling it. Cf.
Planned Parenthood of Southeastern Pa. v.
Casey, 505 U.
S. 833, 855-856 (1992).
Accordingly, I believe that we should reexamine our holding in
Smith, and do so in this very case. In its place, I would
return to a rule that requires government to justify any
substantial burden on religiously motivated conduct by a compelling
state interest and to impose that burden only by means narrowly
tailored to achieve that interest.
II
I shall not restate what has been said in other opinions, which
have demonstrated that
Smith is gravely at odds with our
earlier free exercise precedents. See
Church of Lukumi Babalu
Aye, Inc. v.
Hialeah, 508 U. S. 520, 570-571
(1993) (SOUTER, J., concurring in part and concurring in judgment)
(stating that it is "difficult to escape the conclusion that,
whatever
Smith's virtues, they do not include a comfortable
fit with settled law");
Smith, 494 U. S., at 894-901
(O'CONNOR, J., concurring in judgment); see also McConnell, Free
Exercise Revisionism and the
Smith Decision, 57 U. Chi. L.
Rev. 1109, 1120-1127 (1990). Rather, I examine here the early
American tradition of religious free exercise to gain insight into
the original understanding of the Free Exercise Clause-an inquiry
the Court in
Smith did not undertake. We have previously
recognized the importance of interpreting the Religion Clauses in
light of their history.
Lynch v.
Donnelly, 465 U. S. 668, 673 (1984)
("The Court's
549
interpretation of the Establishment Clause has comported with
what history reveals was the contemporaneous understanding of its
guarantees");
School Dist. of Abington Township v.
Schempp, 374
U. S. 203, 212-214 (1963).
The historical evidence casts doubt on the Court's current
interpretation of the Free Exercise Clause. The record instead
reveals that its drafters and ratifiers more likely viewed the Free
Exercise Clause as a guarantee that government may not
unnecessarily hinder believers from freely practicing their
religion, a position consistent with our pre
Smith
jurisprudence.
A
The original Constitution, drafted in 1787 and ratified by the
States in 1788, had no provisions safeguarding individual
liberties, such as freedom of speech or religion. Federalists, the
chief supporters of the new Constitution, took the view that
amending the Constitution to explicitly protect individual freedoms
was superfluous, since the rights that the amendments would protect
were already completely secure. See,
e. g., 1 Annals of
Congress 440, 443-444, 448-459 (Gales and Seaton ed. 1834) (remarks
of James Madison, June 8, 1789). Moreover, they feared that
guaranteeing certain civil liberties might backfire, since the
express mention of some freedoms might imply that others were not
protected. According to Alexander Hamilton, a Bill of Rights would
even be dangerous, in that by specifying "various exceptions to
powers" not granted, it "would afford a colorable pretext to claim
more than were granted." The Federalist No. 84, p. 513 (C. Rossiter
ed. 1961). Anti-Federalists, however, insisted on more definite
guarantees. Apprehensive that the newly established Federal
Government would overwhelm the rights of States and individuals,
they wanted explicit assurances that the Federal Government had no
power in matters of personal liberty. T. Curry, The First
Freedoms:
Church and State in America to the Passage of the First
Amendment 194 (1986). Additionally, Baptists and other Protestant
dissenters feared for their religious liberty under
550
the new Federal Government and called for an amendment
guaranteeing religious freedom.
Id., at 198.
In the end, legislators acceded to these demands. By December
1791, the Bill of Rights had been added to the Constitution. With
respect to religious liberty, the First Amendment provided:
"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof." U. S. Const.,
Amdt. 1. Neither the First Congress nor the ratifying state
legislatures debated the question of religious freedom in much
detail, nor did they directly consider the scope of the First
Amendment's free exercise protection. It would be disingenuous to
say that the Framers neglected to define precisely the scope of the
Free Exercise Clause because the words "free exercise" had a
precise meaning. L. Levy, Essays on American Constitutional History
173 (1972). As is the case for a number of the terms used in the
Bill of Rights, it is not exactly clear what the Framers thought
the phrase signified.
Ibid. ("[I]t is astonishing to
discover that the debate on a Bill of Rights was conducted on a
level of abstraction so vague as to convey the impression that
Americans of 1787-1788 had only the most nebulous conception of the
meanings of the particular rights they sought to insure"). But a
variety of sources supplement the legislative history and shed
light on the original understanding of the Free Exercise Clause.
These materials suggest that-contrary to
Smit~the Framers
did not intend simply to prevent the government from adopting laws
that discriminated against religion. Although the Framers may not
have asked precisely the questions about religious liberty that we
do today, the historical record indicates that they believed that
the Constitution affirmatively protects religious free exercise and
that it limits the government's ability to intrude on religious
practice.
B
The principle of religious "free exercise" and the notion that
religious liberty deserved legal protection were by no
551
means new concepts in 1791, when the Bill of Rights was
ratified. To the contrary, these principles were first articulated
in this country in the Colonies of Maryland, Rhode Island,
Pennsylvania, Delaware, and Carolina, in the mid1600's. These
Colonies, though established as sanctuaries for particular groups
of religious dissenters, extended freedom of religion to
groups-although often limited to Christian groups-beyond their own.
Thus, they encountered early on the conflicts that may arise in a
society made up of a plurality of faiths.
The term "free exercise" appeared in an American legal document
as early as 1648, when Lord Baltimore extracted from the new
Protestant Governor of Maryland and his councilors a promise not to
disturb Christians, particularly Roman Catholics, in the "free
exercise" of their religion. McConnell, The Origins and Historical
Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409,
1425 (1990) (hereinafter Origins of Free Exercise). Soon after, in
1649, the Maryland Assembly enacted the first free exercise clause
by passing the Act Concerning Religion: "[N]oe person ...
professing to beleive in Jesus Christ, shall from henceforth bee
any waies troubled, Molested or discountenanced for or in respect
of his or her religion nor in the free exercise thereof ... nor any
way [be] compelled to the beleife or exercise of any other Religion
against his or her consent, soe as they be not unfaithfull to the
Lord Proprietary, or molest or conspire against the civill
Governemt." Act Concerning Religion of 1649, reprinted in 5 The
Founders' Constitution 49,50 (P. Kurland & R. Lerner eds. 1987)
(hereinafter Founders' Constitution). Rhode Island's Charter of
1663 used the analogous term "liberty of conscience." It protected
residents from being in any ways "molested, punished, disquieted,
or called in question, for any differences in opinione, in matters
of religion, and doe not actually disturb the civil peace of our
sayd colony." The Charter further provided that residents may
"freely, and fully have and enjoy his and their own judgments, and
conscience in matters of religious
552
concernments ... ; they behaving themselves peaceably and
quietly and not using this liberty to licentiousness and
profaneness; nor to the civil injury, or outward disturbance of
others." Charter of Rhode Island and Providence Plantations, 1663,
in 8 W. Swindler, Sources and Documents of United States
Constitutions 363 (1979) (hereinafter Swindler). Various agreements
between prospective settlers and the proprietors of Carolina, New
York, and New Jersey similarly guaranteed religious freedom, using
language that paralleled that of the Rhode Island Charter of 1663.
See New York Act Declaring Rights & Priviledges (1691);
Concession and Agreement of the Lords Proprietors of the Province
of New Caesarea, or New-Jersey (1664); Laws of West NewJersey, Art.
X (1681); Fundamental Constitutions for East New-Jersey, Art. XVI
(1683); First Charter of Carolina, Art. XVIII (1663). N. Cogan, The
Complete Bill of Rights 23-27 (Galley 1997).
These documents suggest that, early in our country's history,
several Colonies acknowledged that freedom to pursue one's chosen
religious beliefs was an essential liberty. Moreover, these
Colonies appeared to recognize that government should interfere in
religious matters only when necessary to protect the civil peace or
to prevent "licentiousness." In other words, when religious beliefs
conflicted with civil law, religion prevailed unless important
state interests militated otherwise. Such notions parallel the
ideas expressed in our
pre-Smith cases-that government may
not hinder believers from freely exercising their religion, unless
necessary to further a significant state interest.
C
The principles expounded in these early charters reemerged over
a century later in state constitutions that were adopted in the
flurry of constitution drafting that followed the American
Revolution. By 1789, every State but Connecticut had incorporated
some version of a free exercise
553
clause into its constitution. Origins of Free Exercise 1455.
These state provisions, which were typically longer and more
detailed than the Federal Free Exercise Clause, are perhaps the
best evidence of the original understanding of the Constitution's
protection of 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 exercise provision
corresponded to that of their existing state clauses. The precise
language of these state precursors to the Free Exercise Clause
varied, but most guaranteed free exercise of religion or liberty of
conscience, limited by particular, defined state interests. For
example, the New York Constitution of 1777 provided:
"[T]he free exercise and enjoyment of religious profession and
worship, without discrimination or preference, shall forever
hereafter be allowed, within this State, to all mankind:
Provided, That the liberty of conscience, hereby granted,
shall not be so construed as to excuse acts of licentiousness,
or justify practices inconsistent with the peace or safety of this
State." N. Y. Const., Art. XXXVIII, in 7 Swindler 178 (emphasis
added).
Similarly, the New Hampshire Constitution of 1784 declared:
"Every individual has a natural and unalienable right to worship
GOD according to the dictates of his own conscience, and reason;
and no subject shall be hurt, molested, or restrained in his
person, liberty or estate for worshipping GOD, in the manner and
season most agreeable to the dictates of his own conscience, ...
provided he doth not disturb the public peace, or disturb
others, in their religious worship." N. H. Const., Art. I, § 5,
in 6 Swindler 345 (emphasis added).
The Maryland Declaration of Rights of 1776 read:
"[N]o person ought by any law to be molested in his person or
estate on account of his religious persuasion
554
or profession, or for his religious practice; unless, under
colour of religion, any man shall disturb the good order, peace
or safety of the State, or shall infringe the laws of morality, or
injure others, in their natural, civil, or religious rights."
Md. Const., Declaration of Rights, Art. XXXIII in 4 Swindler 374
(emphasis added).
The religious liberty clause of the Georgia Constitution of 1777
stated:
"All persons whatever shall have the free exercise of their
religion; provided it be not repugnant to the peace and safety
of the State." Ga. Const., Art. LVI, in 2 Swindler 449
(emphasis added).
In addition to these state provisions, the Northwest Ordinance
of 1787-which was enacted contemporaneously with the drafting of
the Constitution and reenacted by the First Congress-established a
bill of rights for a territory that included what is now Ohio,
Indiana, Michigan, Wisconsin, and part of Minnesota. Article I of
the Ordinance declared:
"No person, demeaning himself in a peaceable and orderly
manner, shall ever be molested on account of his mode of
worship or religious sentiments, in the said territory." Northwest
Territory Ordinance of 1787, Art. I, 1 Stat. 52 (emphasis
added).
The language used in these state constitutional provisions and
the Northwest Ordinance strongly suggests that, around the time of
the drafting of the Bill of Rights, it was generally accepted that
the right to "free exercise" required, where possible,
accommodation of religious practice. If not-and if the Court was
correct in
Smith that generally applicable laws are
enforceable regardless of religious consciencethere would have been
no need for these documents to specify, as the New York
Constitution did, that rights of conscience should not be
"construed as to excuse acts of licentiousness, or justify
practices inconsistent with the peace or safety of [the] State."
Such a proviso would have been su-
555
perfiuous. Instead, these documents make sense only if the right
to free exercise was viewed as generally superior to ordinary
legislation, to be overridden only when necessary to secure
important government purposes.
The Virginia Legislature may have debated the issue most fully.
In May 1776, the Virginia Constitutional Convention wrote a
constitution containing a Declaration of Rights with a clause on
religious liberty. The initial drafter of the clause, George Mason,
proposed the following:
"That religion, or the duty which we owe to our CREATOR, and the
manner of discharging it, can be (directed) only by reason and
conviction, not by force or violence; and therefore, that all
men should enjoy the fullest toleration in the exercise of
religion, according to the dictates of conscience, unpunished
and unrestrained by the magistrate, unless, under colour of
religion, any man disturb the peace, the happiness, or safety of
society. And that it is the mutual duty of all to practice
Christian forbearance, love, and charity towards each other."
Committee Draft of the Virginia Declaration of Rights, 1 Papers of
George Mason 284285 (R. Rutland ed. 1970) (emphasis added).
Mason's proposal did not go far enough for a 26-year-old James
Madison, who had recently completed his studies at the Presbyterian
College of Princeton. He objected first to Mason's use of the term
"toleration," contending that the word implied that the right to
practice one's religion was a governmental favor, rather than an
inalienable liberty. Second, Madison thought Mason's proposal
countenanced too much state interference in religious matters,
since the "exercise of religion" would have yielded whenever it was
deemed inimical to "the peace, happiness, or safety of society."
Madison suggested the provision read instead:
" 'That religion, or the duty we owe our Creator, and the manner
of discharging it, being under the direction
556
of reason and conviction only, not of violence or compulsion,
all men are equally entitled to the full and free exercise of
it, according to the dictates of conscience; and therefore that
no man or class of men ought on account of religion to be invested
with peculiar emoluments or privileges, nor subjected to any
penalties or disabilities, unless under color of religion the
preservation of equal liberty, and the existence of the State be
manifestly endangered.'" G. Hunt, James Madison and Religious
Liberty, in 1 Annual Report of the American Historical Association,
H. R. Doc. No. 702, 57th Cong., 1st Sess., 163, 166-167 (1901)
(emphasis added).
Thus, Madison wished to shift Mason's language of "toleration"
to the language of rights. See S. Cobb, The Rise of Religious
Liberty in America 492 (1902) (reprint 1970) (noting that Madison
objected to the word "toleration" as belonging to "a system where
was an established Church, and where a certain liberty of worship
was granted, not of right, but of grace"). Additionally, under
Madison's proposal, the State could interfere in a believer's
religious exercise only if the State would otherwise "be manifestly
endangered." In the end, neither Mason's nor Madison's language
regarding the extent to which state interests could limit religious
exercise made it into the Virginia Constitution's religious liberty
clause. Like the Federal Free Exercise Clause, the Virginia
religious liberty clause was simply silent on the subject,
providing only that "all men are equally entitled to the free
exercise of religion, according to the dictates of conscience."
Virginia Declaration of Rights, Art. XVI (1776), in 10 Swindler 50.
For our purposes, however, it is telling that
both Mason's
and Madison's formulations envisioned that, when there was a
conflict, a person's interest in freely practicing his religion was
to be balanced against state interests. Although Madison endorsed a
more limited state interest exception than did Mason, the debate
would have been irrelevant if either had thought the right to free
exercise did not
557
include a right to be exempt from certain generally applicable
laws. Presumably, the Virginia Legislature intended the scope of
its free exercise provision to strike some middle ground between
Mason's narrower and Madison's broader notions of the right to
religious freedom.
D
The practice of the Colonies and early States bears out the
conclusion that, at the time the Bill of Rights was ratified, it
was accepted that government should, when possible, accommodate
religious practice. Unsurprisingly, of course, even in the American
Colonies inhabited by people of religious persuasions, religious
conscience and civil law rarely conflicted. Most 17th and 18th
century Americans belonged to denominations of Protestant
Christianity whose religious practices were generally harmonious
with colonial law. Curry, The First Freedoms, at 219 ("The vast
majority of Americans assumed that theirs was a Christian, i. e.
Protestant, country, and they automatically expected that
government would uphold the commonly agreed on Protestant ethos and
morality"). Moreover, governments then were far smaller and less
intrusive than they are today, which made conflict between civil
law and religion unusual.
Nevertheless, tension between religious conscience and generally
applicable laws, though rare, was not unknown in preconstitutional
America. Most commonly, such conflicts arose from oath
requirements, military conscription, and religious assessments.
Origins of Free Exercise 1466. The ways in which these conflicts
were resolved suggest that Americans in the Colonies and early
States thought that, if an individual's religious scruples
prevented him from complying with a generally applicable law, the
government should, if possible, excuse the person from the law's
coverage. For example, Quakers and certain other Protestant sects
refused on Biblical grounds to subscribe to oaths or "swear"
allegiance to civil authority. A. Adams & C. Em-
558
merich, A Nation Dedicated to Religious Liberty: The
Constitutional Heritage of the Religion Clauses 14 (1990)
(hereinafter Adams & Emmerich). Without accommodation, their
beliefs would have prevented them from participating in civic
activities involving oaths, including testifying in court. Colonial
governments created alternatives to the oath requirement for these
individuals. In early decisions, for example, the Carolina
proprietors applied the religious liberty provision of the Carolina
Charter of 1665 to permit Quakers to enter pledges in a book.
Curry, The First Freedoms, at 56. Similarly, in 1691, New York
enacted a law allowing Quakers to testify by affirmation, and in
1734, it permitted Quakers to qualify to vote by affirmation.
Id., at 64. By 1789, virtually all of the States had enacted
oath exemptions. See Adams & Emmerich 62.
Early conflicts between religious beliefs and generally
applicable laws also occurred because of military conscription
requirements. Quakers and Mennonites, as well as a few smaller
denominations, refused on religious grounds to carry arms. Members
of these denominations asserted that liberty of conscience should
exempt them from military conscription. Obviously, excusing such
objectors from military service had a high public cost, given the
importance of the military to the defense of society. Nevertheless,
Rhode Island, North Carolina, and Maryland exempted Quakers from
military service in the late 1600's. New York, Massachusetts,
Virginia, and New Hampshire followed suit in the mid-1700's.
Origins of Free Exercise 1468. The Continental Congress likewise
granted exemption from conscription:
"As there are some people, who, from religious principles,
cannot bear arms in any case, this Congress intend no violence to
their consciences, but earnestly recommend it to them, to
contribute liberally in this time of universal calamity, to the
relief of their distressed brethren in the several colonies, and to
do all other services to their oppressed Country, which they can
consist-
559
ently with their religious principles." Resolution of July 18,
1775, reprinted in 2 Journals of the Continental Congress,
1774-1789, pp. 187, 189 Cw. Ford ed. 1905).
Again, this practice of excusing religious pacifists from
military service demonstrates that, long before the First Amendment
was ratified, legislative accommodations were a common response to
conflicts between religious practice and civil obligation. Notably,
the Continental Congress exempted objectors from conscription to
avoid "violence to their consciences," explicitly recognizing that
civil laws must sometimes give way to freedom of conscience.
Origins of Free Exercise 1468.
States and Colonies with established churches encountered a
further religious accommodation problem. Typically, these
governments required citizens to pay tithes to support either the
government-established church or the church to which the tithepayer
belonged. But Baptists and Quakers, as well as others, opposed all
governmentcompelled tithes on religious grounds.
Id., at
1469. Massachusetts, Connecticut, New Hampshire, and Virginia
responded by exempting such objectors from religious assessments.
Ibid. There are additional examples of early conflicts
between civil laws and religious practice that were similarly
settled through accommodation of religious exercise. Both North
Carolina and Maryland excused Quakers from the requirement of
removing their hats in court; Rhode Island exempted Jews from the
requirements of the state marriage laws; and Georgia allowed groups
of European immigrants to organize whole towns according to their
own faith.
Id., at 1471.
To be sure, legislatures, not courts, granted these early
accommodations. But these were the days before there
was a
Constitution to protect civil liberties-judicial review did not yet
exist. These legislatures apparently believed that the appropriate
response to conflicts between civil law and religious scruples was,
where possible, accommodation of re-
560
ligious conduct. It is reasonable to presume that the drafters
and ratifiers of the First Amendment-many of whom served in state
legislatures-assumed courts would apply the Free Exercise Clause
similarly, so that religious liberty was safeguarded.
E
The writings of the early leaders who helped to shape our Nation
provide a final source of insight into the original understanding
of the Free Exercise Clause. The thoughts of James Madison-one of
the principal architects of the Bill of Rights-as revealed by the
controversy surrounding Virginia's General Assessment Bill of 1784,
are particularly illuminating. Virginia's debate over religious
issues did not end with its adoption of a constitutional free
exercise provision. Although Virginia had disestablished the Church
of England in 1776, it left open the question whether religion
might be supported on a nonpreferential basis by a so-called
"general assessment." Levy, Essays on American Constitutional
History, at 200. In the years between 1776 and 1784, the issue how
to support religion in Virginia-either by general assessment or
voluntarily-was widely debated. Curry, The First Freedoms, at
136.
By 1784, supporters of a general assessment, led by Patrick
Henry, had gained a slight majority in the Virginia Assembly. M.
Malbin, Religion and Politics: The Intentions of the Authors of the
First Amendment 23 (1978); Levy,
supra, at 200. They
introduced "A Bill Establishing a Provision for the Teachers of the
Christian Religion," which proposed that citizens be taxed in order
to support the Christian denomination of their choice, with those
taxes not designated for any specific denomination to go to a
public fund to aid seminaries. Levy,
supra, at 200-201;
Curry,
supra, at 140141; Malbin,
supra, at 23.
Madison viewed religious assessment as a dangerous infringement of
religious liberty and led the opposition to the bill. He took the
case against religious assessment to the people of Virginia in his
now-famous "Me-
561
morial and Remonstrance Against Religious Assessments." Levy,
supra, at 201. This pamphlet led thousands of Virginians to
oppose the bill and to submit petitions expressing their views to
the legislature. Malbin,
supra, at 24. The bill eventually
died in committee, and Virginia instead enacted a Bill for
Establishing Religious Freedom, which Thomas Jefferson had drafted
in 1779. Malbin,
supra, at 24.
The "Memorial and Remonstrance" begins with the recognition that
"[t]he Religion ... of every man must be left to the conviction and
conscience of every man; and it is the right of every man to
exercise it as these may dictate." 2 Writings of James Madison 184
(G. Hunt ed. 1901). By its very nature, Madison wrote, the right to
free exercise is "unalienable," both because a person's opinion
"cannot follow the dictates of other[s]," and because it entails "a
duty towards the Creator."
Ibid. Madison continued:
"This duty [owed the Creator] is precedent both in order of time
and degree of obligation, to the claims of Civil Society ....
[E]very man who becomes a member of any particular Civil Society,
[must] do it with a saving of his allegiance to the Universal
Sovereign. We maintain therefore that in matters of Religion, no
man's right is abridged by the institution of Civil Society, and
that Religion is wholly exempt from its cognizance." Id., at
184-185.
To Madison, then, duties to God were superior to duties to civil
authorities-the ultimate loyalty was owed to God above all. Madison
did not say that duties to the Creator are precedent only to those
laws specifically directed at religion, nor did he strive simply to
prevent deliberate acts of persecution or discrimination. The idea
that civil obligations are subordinate to religious duty is
consonant with the notion that government must accommodate, where
possible, those religious practices that conflict with civil
law.
562
Other early leaders expressed similar views regarding religious
liberty. Thomas Jefferson, the drafter of Virginia's Bill for
Establishing Religious Freedom, wrote in that document that civil
government could interfere in religious exercise only "when
principles break out into overt acts against peace and good order."
In 1808, he indicated that he considered "'the government of the
United States as interdicted by the Constitution from intermeddling
with religious institutions, their doctrines, discipline, or
exercises.'" 11 The Writings of Thomas Jefferson 428-429 (A.
Lipscomb ed. 1904) (quoted in Office of Legal Policy, U. S. Dept.
of Justice, Report to the Attorney General, Religious Liberty under
the Free Exercise Clause 7 (1986)). Moreover, Jefferson believed
that "'[e]very religious society has a right to determine for
itself the time of these exercises, and the objects proper for
them, according to their own particular tenets; and this right can
never be safer than in their own hands, where the Constitution has
deposited it.'"
Ibid.
George Washington expressly stated that he believed that
government should do its utmost to accommodate religious scruples,
writing in a letter to a group of Quakers:
"[I]n my opinion the conscientious scruples of all men should be
treated with great delicacy and tenderness; and it is my wish and
desire, that the laws may always be as extensively accommodated to
them, as a due regard to the protection and essential interests of
the nation may justify and permit." Letter from George Washington
to the Religious Society Called Quakers (Oct. 1789), in George
Washington on Religious Liberty and Mutual Understanding 11 (E.
Humphrey ed. 1932).
Oliver Ellsworth, a Framer of the First Amendment and later
Chief Justice of the United States, expressed the similar view that
government could interfere in religious matters only when necessary
"to prohibit and punish gross immorali-
563
ties and impieties; because the open practice of these is of
evil example and detriment." Oliver Ellsworth, Landholder, No.7
(Dec. 17, 1787), reprinted in 4 Founders' Constitution 640. Isaac
Backus, a Baptist minister who was a delegate to the Massachusetts
ratifying convention of 1788, declared that" 'every person has an
unalienable right to act in all religious affairs according to the
full persuasion of his own mind, where others are not injured
thereby.'" Backus, A Declaration of Rights, of the Inhabitants of
the State of Massachusetts-Bay, in Isaac Backus on Church, State,
and Calvinism 487 (W. McLoughlin ed. 1968).
These are but a few examples of various perspectives regarding
the proper relationship between church and government that existed
during the time the First Amendment was drafted and ratified.
Obviously, since these thinkers approached the issue of religious
freedom somewhat differently, see Adams & Emmerich 21-31, it is
not possible to distill their thoughts into one tidy formula.
Nevertheless, a few general principles may be discerned. Foremost,
these early leaders accorded religious exercise a special
constitutional status. The right to free exercise was a substantive
guarantee of individual liberty, no less important than the right
to free speech or the right to just compensation for the taking of
property. See P. Kauper, Religion and the Constitution 17 (1964)
("[O]ur whole constitutional history ... supports the conclusion
that religious liberty is an independent liberty, that its
recognition may either require or permit preferential treatment on
religious grounds in some instances ... "). As Madison put it in
the concluding argument of his "Memorial and Remonstrance":
"'[T]he equal right of every citizen to the free exercise of his
Religion according to the dictates of [his] conscience' is held by
the same tenure with all our other rights .... [I]t is equally the
gift of nature; ... it cannot be less dear to us; ... it is
enumerated with equal solem-
564
nity, or rather studied emphasis." 2 Writings of James Madison,
at 190.
Second, all agreed that government interference in religious
practice was not to be lightly countenanced. Adams & Emmerich
31. Finally, all shared the conviction that" 'true religion and
good morals are the only solid foundation of public liberty and
happiness.'" Curry, The First Freedoms, at 219 (quoting Continental
Congress); see Adams & Emmerich 72 ("The Founders ...
acknowledged that the republic rested largely on moral principles
derived from religion"). To give meaning to these
ideas-particularly in a society characterized by religious
pluralism and pervasive regulation-there will be times when the
Constitution requires government to accommodate the needs of those
citizens whose religious practices conflict with generally
applicable law.
III
The Religion Clauses of the Constitution represent a profound
commitment to religious liberty. Our Nation's Founders conceived of
a Republic receptive to voluntary religious expression, not of a
secular society in which religious expression is tolerated only
when it does not conflict with a generally applicable law. As the
historical sources discussed above show, the Free Exercise Clause
is properly understood as an affirmative guarantee of the right to
participate in religious activities without impermissible
governmental interference, even where a believer's conduct is in
tension with a law of general application. Certainly, it is in no
way anomalous to accord heightened protection to a right identified
in the text of the First Amendment. For example, it has long been
the Court's position that freedom of speech-a right enumerated only
a few words after the right to free exercise-has special
constitutional status. Given the centrality of freedom of speech
and religion to the American concept of personal liberty, it is
altogether reasonable to conclude
565
that both should be treated with the highest degree of
respect.
Although it may provide a bright line, the rule the Court
declared in
Smith does not faithfully serve the purpose of
the Constitution. Accordingly, I believe that it is essential for
the Court to reconsider its holding in
Smith-and to do so in
this very case. I would therefore direct the parties to brief this
issue and set the case for reargument.
I respectfully dissent from the Court's disposition of this
case.
JUSTICE SOUTER, dissenting.
To decide whether the Fourteenth Amendment gives Congress
sufficient power to enact the Religious Freedom Restoration Act of
1993, the Court measures the legislation against the free-exercise
standard of
Employment Div., Dept. of Human Resources of
Ore. v.
Smith, 494 U. S. 872 (1990). For
the reasons stated in my opinion in
Church of Lukumi Babalu Aye,
Inc. v.
Hialeah, 508 U. S. 520, 564-577
(1993) (opinion concurring in part and concurring in judgment), I
have serious doubts about the precedential value of the
Smith rule and its entitlement to adherence. These doubts
are intensified today by the historical arguments going to the
original understanding of the Free Exercise Clause presented in
JUSTICE O'CONNOR'S dissent,
ante, at 548-564, which raises
very substantial issues about the soundness of the
Smith
rule. See also
ante, p. 537 (JUSTICE SCALIA, concurring in
part) (addressing historical arguments). But without briefing and
argument on the merits of that rule (which this Court has never had
in any case, including
Smith itself, see
Lukumi, 508
U. S., at 571-572), I am not now prepared to join JUSTICE O'CONNOR
in rejecting it or the majority in assuming it to be correct. In
order to provide full adversarial consideration, this case should
be set down for reargument permitting plenary reexamination of the
issue. Since the Court declines to follow that course, our
free-exercise
566
law remains marked by an "intolerable tension," id., at 574, and
the constitutionality of the Act of Congress to enforce the
free-exercise right cannot now be soundly decided. I would
therefore dismiss the writ of certiorari as improvidently granted,
and I accordingly dissent from the Court's disposition of this
case.
JUSTICE BREYER, dissenting.
I agree with JUSTICE O'CONNOR that the Court should direct the
parties to brief the question whether
Employment Div., Dept. of
Human Resources of Ore. v.
Smith, 494 U. S. 872 (1990), was
correctly decided, and set this case for reargument. I do not,
however, find it necessary to consider the question whether,
assuming
Smith is correct, § 5 of the Fourteenth Amendment
would authorize Congress to enact the legislation before us. Thus,
while I agree with some of the views expressed in the first
paragraph of Part I of JUSTICE O'CONNOR'S dissent, I do not
necessarily agree with all of them. I therefore join JUSTICE
O'CONNOR'S dissent, with the exception of the first paragraph of
Part 1.
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