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City of Boerne v. Flores, 521 U.S. 507 

Supreme Court of the United States






The Scope of Congresss Powers




Congresss Enforcement Power under the Reconstruction Amendments

Quick Notes

A party seeking a person to build a church filed suit under the Religious Freedom Restoration Act to 1993 (RFRA) when the permit sought was denied.


The religious freedom restoration act of 1993 is unconstitutional because Congress does not have the power to determine what constitutes a constitutional violation.



Congress can enforce provisions ONLY



o         Congresss power under sect. 5 of the 14thh Amendment extends ONLY to enforcing the provisions of that Amendment, and does not give it the power to determine what constitutes a constitutional violation.

Book Name

Constitutional Law : Stone, Seidman, Sunstein, Tushnet.  ISBN:  978-0-7355-7719-0



o         May Congress impose a rule of constitutional interpretation on the Supreme Court through its enforcement of the 14th Amendment?  No.




o         Upheld the RFRA to be Constitutional


o         Reversed.  RFRA is unconstitutional




Key Phrases






o          Local zoning authorities denied a church a building permit.

o         Flores challenged the ruling under the Religious Freedom Restoration Act of 1993 (RFRA).



Religious Freedom Restoration Act

o         This was Congresss enacted RFRA in direct response to the Court's decision in Employment Div., Dept. of Human Resources of Ore. v. Smith.

o         There Native American Church were denied unemployment benefits when they lost their jobs because they had used peyote for religious purposes.


Sherbert v. Verner Did not used balancing test

o         Declined to apply the balancing test

o         Issue:  Whether Oregon's prohibition substantially burdened a religious practice and, if it did, whether the burden was justified by a compelling government interest.

o         Holding

o    "Government'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.

o    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."


Prohibits Government from substantially burdening Exercise of Religion

o         RFRA prohibits "government" from "substantially burdening" 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.     The burden is in furtherance of a compelling governmental interest; AND

2.     The burden is the least restrictive means of furthering that compelling governmental interest."

o         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."


Flores (Respondent) RFRA is permissible enforcement legislation

o         Congress is only protecting by legislation one of the liberties guaranteed by the Fourteenth Amendment's Due Process Clause

o    The free exercise of religion.

o         Section 5 includes the power to enact legislation designed to prevent as well as remedy constitutional violations.

o         It is further contended that Congress' section 5 power is not limited to remedial or preventive legislation.


Court Assessing Section 5, 14th Amendments Enforcement Power

o         Begin with the text.


Court Congress can enforce provisions ONLY

o         Congresss power under section 5 extends only to enforcing the provisions of the Fourteenth Amendment due process clause which embraces the liberties guarantied by the first Amendment.


Court Congress cannot decree substance of Fourteenth Amendment on States

o         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.


Court Enforcing a Constitutional right, does not mean changing it

o         Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause.

o         Congress does not enforce a constitutional right by changing what the right is.

o         It has been given the power "to enforce," not the power to determine what constitutes a constitutional violation.

o         Were it not so, what Congress would be enforcing would no longer be, in any meaningful sense, the "provisions of [the Fourteenth Amendment]."


Court Congruent means to an end

o         There must be congruence and proportionality between the injury to be prevent or remedied and the means adopted to that end.

o         Any suggestion that Congress has a substantive, non-remedial power under the Fourteenth Amendment is not supported by our case law.


Court Constitution is the superior paramount law

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."


Marbury v. Madison Reference Alterable when legislature shall please

o    It would be "on a level with ordinary legislative acts, and, like other acts, . . . alterable when the legislature shall please to alter it."


Section B


Flores (Respondent) RFRA is a proper exercise of Congress remdial power

o    The Act, it is said, is a reasonable means of protecting the free exercise of religion.

o    It prevents and remedies laws which are enacted with the unconstitutional object of targeting religious beliefs and practices.

o    Congress can simply invalidate any law which imposes a substantial burden on a religious practice unless it is justified by a (1) compelling interest and (2) is the least restrictive means of accomplishing that interest.


Flores (Respondent) - Prohibit racial discriminatory law, then can do the same for religious liberty

o    If Congress can prohibit laws with discriminatory effects in order to prevent racial discrimination in violation of the Equal Protection Clause, then it can do the same to promote religious liberty.


Court Must be a congruent means used and the ends to be achieved

o    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


Court Cost of RFRA

o    Imposing heave litigation burden on the States

o    Curtailing traditional general regulatory power, far exceed any pattern or practice of unconstitutional conduct under the Free Exercise Clause.


Court - Holding

o    RFRA is not designed to identify and counteract state laws likely to be unconstitutional because of their treatment of religion.


[Justice Stevens] Concurred

o    Believed that RFRA violated the establishment caue of the first admendment.


[Justice OConnor] DISSENTED

o    Smith should be overruled.


[Justice Breyer] DISSENTED

o    Did not find it necessary to consider the question of congressional power under section 5.


[Justice Souter] DISSENTED

o    The Court should have dismissed the writ of certiorari as improperly granted.






Class Notes




Section 1 of the Fourteenth Amendment

o    Among other things, guarantees equal protection of the laws and the right to due process to all citizens of the United States.

o    These guarantees are very significant. 

o    The Fourteenth Amendment also contains 5, which reads: "The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."

o    In other words, Congress has the power to enact legislation to enforce the guarantees of equal protection and due process.


This power is the issue of Boerne

o    It is this very power that is at issue in Boerne.

o    It is this power that the Boerne Court limits in its decision.


Limits Congresss power, and Expands the Supreme Courts Power

o    In giving a limited reading of 5, the Supreme Court not only limits Congress's power, it also expands its own power.

o    The Court specifically states that Congress's enforcement power is just that-power to enforce.

o    It has no right to determine what actions constitute a constitutional violation, but only the power to provide remedies for those violations already enumerated.


Supreme Court protected its power from other branches

o    By deciding Boerne as it did, the Supreme Court protected its power to determine constitutional violations from encroachment by other branches of government.


14th Amendment

14th Amendment XIV (Privileges and Immunities, Due Process, Equal Protection, Apportionment of Representatives, Civil War Disqualification and Debt (1868))


Section 1.  (Citizenship)

o   All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.

o   No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

o   nor shall any state deprive any person of life, liberty, or property, without due process of law;

o   nor deny to any person within its jurisdiction the equal protection of the laws.


Section 2.  (21 years hold to vote)

o   Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.


Section 3.  (have to take constitutional oath)

o   No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.


Section 4.

o   The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.

o   But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.


Section 5. (Enforce Legislation)

  • The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.