City of Boerne v. Flores, Archbishop of San Antonio
Decided on June 25, 1997; 521 US 507

The enactment of the Religious Freedom Restoration Act of 1993 (RFRA) was not a proper exercise of Congress' enforcement power because it contradicts vital principles necessary to maintain separation of powers and the federal state balance.



A. Issues Discussed:  Freedom of religion, federalism

B. Legal Question Presented: 

Does the Religious Freedom Restoration Act (RFRA) of 1993 exceed Congress' enforcement power under the Fourteenth Amendment?


A. Background:

"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."

On certiorari, the U.S. Supreme Court reversed the judgment of the United States Court of Appeals for the Fifth Circuit.
B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
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 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 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.
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, Attorney 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.

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.


The Supreme Court held that:

"RFRA exceeds Congress' power.

RFRA prohibits '[g]overnment' from 'substantially burden[ing]' a person's exercise of religion even if the burden results from a reule of general applicability unless the government can demonstrate that the burden '(1) is in furtherance of a compelling governmental interst; and (2) is the least restrictive means of furthering that...interest.' 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, liberty, or property, without due process of law,' or denying any person the 'equal protection of the laws,' and empowers Congress 'to enforce' those guarantees by 'appropriate legislation.'...

Although Congress certainly can enact legislation enforcing the constitutional right to the free exercise of religion, its §5 [of the Fourteenth Amendment] power 'to enforce' is only preventive or 'remedial.' The Amendment's design and §5 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...

RFRA is not a proper exercise of Congress' enforcement power because it contradicts vital principles necessary to maintain separation of powers and the federal state balance... 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...

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."

The United States Supreme Court reversed the United States Court of Appeals for the Fifth Circuit judgment.

Justice Vote: 3 Pro vs. 6 Con
  • O'Connor, S. Pro (Wrote dissenting opinion)
  • Breyer, S. Pro (Wrote dissenting opinion)
  • Souter, D. Pro (Wrote dissenting opinion)
  • Kennedy, A. Con (Wrote majority opinion)
  • Stevens, J. Con (Wrote concurring opinion)
  • Rehnquist, W. Con (Joined majority opinion)
  • Thomas, C. Con (Joined majority opinion)
  • Ginsburg, R. Con (Joined majority opinion)
  • Scalia, A. Con (Joined majority opinion)

The ACLU, as amicus curiae, urged affirmance of the judgment of the United States Court of Appeals for the Fifth Circuit; the Supreme Court reversed in a 3-6 vote, giving the ACLU an apparent loss.