Religious Freedom Restoration Act
This was Congresss enacted RFRA in direct response to the
Court's decision in Employment Div., Dept. of Human Resources of
Ore. v. Smith.
There Native American Church were denied unemployment benefits
when they lost their jobs because they had used peyote for
Sherbert v. Verner Did not used balancing test
Declined to apply the balancing test
Issue: Whether Oregon's prohibition substantially burdened a
religious practice and, if it did, whether the burden was
justified by a compelling government interest.
"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
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
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
The burden is in furtherance of a
compelling governmental interest; AND
The burden is the least restrictive
means of furthering that compelling governmental interest."
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
Congress is only protecting
by legislation one of the liberties
guaranteed by the
Fourteenth Amendment's Due Process Clause
The free exercise of religion.
Section 5 includes the power to
designed to prevent as well as
It is further contended that Congress' section 5 power is not
limited to remedial or preventive legislation.
Assessing Section 5, 14th Amendments Enforcement Power
Begin with the text.
Congress can enforce provisions ONLY
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.
Congress cannot decree substance of Fourteenth Amendment
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.
Enforcing a Constitutional right, does not mean changing it
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
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
Congruent means to an end
There must be congruence and proportionality between the injury
to be prevent or remedied and the means adopted to that end.
Any suggestion that Congress has a substantive, non-remedial
power under the Fourteenth Amendment is not supported by our
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
It would be "on a level with ordinary legislative acts, and,
like other acts, . . . alterable when the legislature shall
please to alter it."
Flores (Respondent) RFRA is a proper exercise of Congress
The Act, it is said, is a reasonable means of protecting the
free exercise of religion.
It prevents and remedies laws which are enacted with the
unconstitutional object of targeting religious beliefs and
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.
- Prohibit racial discriminatory law, then can do the same for
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
Must be a congruent means
used and the ends to be achieved
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
Cost of RFRA
Imposing heave litigation burden on the States
Curtailing traditional general regulatory power, far exceed any
pattern or practice of unconstitutional conduct under the Free
RFRA is not designed to identify and counteract state laws
likely to be unconstitutional because of their treatment of
[Justice Stevens] Concurred
Believed that RFRA violated the establishment caue of the first
[Justice OConnor] DISSENTED
Smith should be overruled.
[Justice Breyer] DISSENTED
Did not find it necessary to consider the question of
congressional power under section 5.
[Justice Souter] DISSENTED
The Court should have dismissed the writ of certiorari as