CITY OF BOERNE v. FLORES,
ARCHBISHOP OF SAN ANTONIO, et al.
521 U.S. 507 (1997)
Argued
February 19, 1997
Decided
June 25, 1997
Certiorari
to the United States Court of Appeals for the fifth circuit
Kennedy,
J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens,
Thomas, and Ginsburg, JJ., joined, and in all but Part III-A-1 of which Scalia,
J., joined. Stevens, J., filed a concurring opinion. Scalia, J., filed an
opinion concurring in part, in which Stevens, J., joined. O'Connor, J., filed a
dissenting opinion, in which Breyer, J., joined except as to a portion of Part
I. Souter, J., and Breyer, J., filed dissenting opinions
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), 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.
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 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 F. Supp. 355 (1995).
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. ___ (1996), and now reverse.
* * *
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 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 of law) 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.
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 process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
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."
Section 5. The Congress shall have power
to enforce, by appropriate legislation, the provisions of this article."
In defense of the Act respondent
contends, with support from the United States as amicus, 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, 345 -346 (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 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. 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 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.
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.
* * *
Recent cases have continued to revolve
around the question of 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, 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 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").
Any suggestion that Congress has a
substantive, non-remedial 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 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."
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.
* * *
III 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.
[521 U.S. 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-[521 U.S. 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-[521 U.S. 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 regions 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, 400 U.S. 112 (1970),
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, 446 U.S. 156 , 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 pre-implementation 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 [521 U.S. 534]
State must demonstrate a compelling governmental interest and show that the law
is the least restrictive means of furthering its interest. .
. .
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 their treatment
[521 U.S. 535]of religion. In most cases, the state
laws to which RFRA applies are not ones which will have been motivated by
religious bigotry. . . .
* * *
Our national experience teaches that the
Constitution is preserved best when each part of the government respects [521
U.S. 535] 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.
* *
*
[521 U.S. 536] 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.