On June 25, 1997, Supreme Court Justice Anthony M. Kennedy handed down the judgment for the case of City of Boerne, Texas v. Flores², in which the courts were forced to interpret the meaning of the freedom of religion clause as established by the First Amendment of the Consititution. In a 6-3 decision, the Court declared that the Religious Freedom Restoration Act of 1993 (RFRA)³ was unconstitutional, shocking and disappointing many religious liberty advocates. As Senator Orrin Hatch, one of the leading proponents of the bill, commented, "This decision shows the Court's blindness to a pervasive trend in society, which does not just discriminate against, but is expunging, religion."

This article will investigate the rationale behind the Supreme Court's decision and seeks to find out why so many interest groups feel that there is a need for legislation like the RFRA. The act, passed by Congress in 1993, was hailed as vital legislation in protecting U.S. citizens' First Amendment rights of the free exercise of religion. The bill was passed largely in response to the Supreme Court's decision in the 1990 case of Employment Division v. Smith⁴ in which lawmakers claimed the courts had "virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral towards religion."⁵

With the strong backing of the Coalition for the Free Exercise of Religion, an organization of over 60 religious and civil liberty groups, and the large support of the American population, the act passed through Congress easily, garnering an astonishing 97-0 vote in the Senate.

Its purpose was to reaffirm the compelling interest tests set by the Supreme Court in the cases of Sherbert v. Verner⁶ and Wisconsin v. Yoder⁷, and which would ensure that "governments… not substantially burden religious exercise without compelling justification."⁸ In both these cases, the Court affirmed that legislation having a disparate impact on citizens of certain beliefs is only constitutional if it furthers compelling interests of the state.

Most importantly, the RFRA puts the burden of proof on the government to provide evidence of a compelling interest in cases of freedom of religion, rather than simply state it.

The ramifications of the RFRA were significant. From the time the Smith decision was made to the passage of the RFRA, there were about 60 cases that relied on the precedent set by Smith decision. In most of these cases, the compelling interest of the government superseded the free exercise clause of the First Amendment. However, since the passage of the RFRA and until it was declared unconstitutional, over 70 cases have cited the law, bringing results that have been drastically different.⁹ Because under this law, the government has the burden of proof, courts have recently found government interest to often be insufficient in restricting religious liberty, and in some cases, have found that the government is not using the least restrictive means of achieving that interest.¹⁰ Clearly, judicial relief under the RFRA has been a large part of the American justice system ever since its establishment.

The Supreme Court's decision to reject the act remains extremely controversial, and activist groups as well as Congress are attempting to push through legislation that will once again restore the freedoms mandated by the RFRA.

In order to understand why lawmakers felt and still feel the RFRA is crucial, one must first look at the legal precedents set by the courts. In the case of Sherbert v. Verner, a member of the Seventh-Day Adventist Church was discharged by her South Carolina employer because she would not work on Saturday, the Sabbath. Because of the availability of work, but her refusal to take it, the citizen was denied unemployment compensation.

At the heart of this is case is the underlying question of whether the First Amendment rights of freedom of religion are being burdened. In making this determination, Justice Brennan, in his opinion of the Sherbert case, cited the case of Braunfeld v. Brown¹¹ which stated that "[i]f the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect."¹²

Because the religious burden is indeed indirect, Brennan criticized the state's decision because it "forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship."¹³

The judgment in the Sherbert case makes it apparent that disqualifying persons for governmental benefits, solely because of religious beliefs, is unconstitutional.

Because there is no compelling interest in enforcing the current unemployment law, the courts concluded that "the South Carolina statute abridged appellant's right to the free exercise of her religion, in violation of the First Amendment, made applicable to the states by the Fourteenth Amendment"¹⁴

With the case of Wisconsin v. Yoder one can see another example in which freedom of religion was abridged by the state. The case involves an Amish community, which, by refusing to send their children to school after the 8^th grade, were violating Wisconsin's compulsory-attendance law.

Because of Amish religious beliefs, and their preferred lifestyle, the Amish citizens claimed that the mandatory attendance law impinged on their First Amendment right to freedom of religion. In the end, the courts concluded that "The State's interest in universal education is not totally free from a balancing process when it impinges on other fundamental rights, such as those specifically protected by the Free Exercise Clause of the First Amendment and the traditional interest of parents with respect to the religious upbringing of their children."¹⁵

What distinguishes this case from other freedom of religion cases, is that the Court implied that freedom of religion includes the right to educate children based on one's religious beliefs.

While the previous two cases clearly show the court siding with individual liberty, the case of Human Resources of Oregon v. Smith presents a different angle of thought to the freedom clause, causing controversy both in and out of the Supreme Court. The case involves two Native Americans who worked at a drug rehabilitation center and were fired for their religious sacramental usage of peyote, a drug illegal in the United States. When the party requested unemployment compensation, they were denied it because they had been discharged for work-related misconduct.

The Court's decision was a tight 5-4 verdict, which mainly involved interpreting the significance and precedents set by two previously-cited cases. The Court came up with some intriguing and debatable conclusions. While it may seem that the test of "compelling interest" from the Sherbert case may also be applicable in this case, the courts reasoned that: "The test is inapplicable to an across-the-board criminal prohibition on a particular form of conduct.

A holding to the contrary would create an extraordinary right to ignore generally applicable laws that are not supported by 'compelling governmental interest' on the basis of religious belief. Nor could such a right be limited to situations in which the conduct prohibited is 'central' to the individual's religion, since that would enmesh judges in an impermissible inquiry into the centrality of particular beliefs or practices to a faith."¹⁶

Using the precedent set by Hernandez v. Commissioner of Internal Revenue¹⁷ to support this claim, the Court was able to avoid an anomaly in the law, where one religious group would have the government's special permission for drug use.

The second conclusion of the Smith case was that the Wisconsin ruling was also inapplicable to it. The Supreme Court reasoned this by stating: "The only decisions in which this Court has held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action are distinguished on the ground that they involved not the Free Exercise Clause alone, but that Clause in conjunction with other constitutional protections."¹⁸

Supreme Court Justice Souter describes the future implications of the Smith ruling in a later case, saying, "Smith presents not the usual question of whether to follow a constitutional rule, but the question of which constitutional rule to follow, for Smith refrained from overruling prior free exercise cases that contain a free exercise rule fundamentally at odds with the rule Smith declared. Smith, indeed, announced its rule by relying squarely upon the precedent of prior cases."²⁰

While the Smith case uses Wisconsin and Sherbert as precedents, it also is "at odds" with and in a sense contradicts them by restricting the freedom of religion clause to a greater degree.

What angered most people about Smith was that if prohibiting the exercise of religion was merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment was not offended. It is this conflict that has since created a great divide among the Supreme Court justices regarding religious liberty cases, and has also caused many justices to call for the reconsideration of the Smith decision.

The confusion and conflicts that arise between the Smith case and the two major cases decided before it play a large role in the Boerne v. Flores decision. In Boerne, the local zoning authority denied a church a building permit to expand, since the church was regulated under historical preservation zoning laws.

The Archbishop of the church argued, using the RFRA, that the restrictions burdened his freedom of religion. Because the RFRA allows for a significantly different interpretation of First Amendment's religious freedom clause (the government has to provide proof that there is compelling interest), compared to the Smith decision and other Supreme Court precedents, the Justices were forced to call into question the authority of Congress to enact the RFRA.

Underlying the dispute over the RFRA and its unconstitutionality is the Fourteenth amendment, rather than freedom of religion issues. The relevant portions of the 14^th amendment are as follows:

What comes into question is whether Congress is actually enforcing the provisions of the Amendment through the enactment of the RFRA or violating the Constituion as interpreted by the Court. Because the RFRA is superseding the rights outlined by the Smith decision, many have viewed its enactment as a message to the courts that the general public disagrees with the Court's rulings regarding the freedom clause.

As Justice Anthony Kennedy 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 give the power 'to enforce,' not the power to determine what constitutes a constitutional violation."²²

The definition of "enforce" has come numerous times throughout history, as Kennedy mentions, in cases such as South Carolina v. Katzenbach²³, the Court has defined Congress' power as "remedial" rather than substantive.

So in a larger sense, one can interpret from this that because the Supreme Court has already made numerous decisions concerning the law and freedom of religion with the aforementioned cases, there is nothing really Congress has the power to remedy. After all, using the age-old Marbury v. Madison²⁴ decision, Kennedy reminds the public: "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."²⁵

In the end, the Supreme Court has the last word on the law, not Congress. Because the majority of justices believe the RFRA was a clear attempt to go beyond the law and alter its meaning (rendering Court decisions essentially meaningless), it must be unconstitutional. As Kennedy bluntly puts it: "[The] RFRA contradicts vital principles necessary to maintain separation of powers and federal balance."²⁶

Justice Stevens, concurs with Kennedy on the decision, but takes a different angle at the unconstitutionality of the RFRA. Stevens explains that the "Religious Freedom Restoration Act of 1993 (RFRA) is a 'law respecting an establishment of religion' that violates the First Amendment to the Constitution."

Because the RFRA allows for specific religions to obtain rights beyond the rights given to regular citizens, he concludes the act must consequently go beyond simple freedom of religion, since it establishes special provisions for religious groups. Stevens uses the case of Wallace v. Jaffree²⁷ as a precedent for this line of thought and concludes that "governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment."²⁸

The previous arguments hold only if one takes for granted that the original Smith decision is a correct interpretation of the law. Ironically, Congress passed the RFRA mainly to reverse the precedent set by the Smith decision, yet, the act was declared unconstitutional, because the Smith decision was taken as a definitive interpretation of the law.

It is from this circular power struggle between the Courts and Congress that much of the dissenting opinion involving Boerne v. Flores arises. If one takes a look at the law from a more religious point of view, rather than strictly as a breach in the 14^th Amendment much larger issues arise, as to what the interpretation of the freedom of religion clause should be. As Justice O'Connor states in her opinion:

If one assumes the Smith ruling and its interpretation was incorrect, as O'Connor does, it can also be interpreted that Congress' intention in enacting the RFRA was "remedial" in nature.

She goes on to cite numerous Supreme Court interpretations of the free exercise clause to which the Smith decision is contradictory or "gravely at odds." It is for this reason that she encourages the court to grant the Smith decision another evaluation, because it does not "faithfully serve the purpose of the Constitution,"³⁰ she argues.

It is for this reason that the RFRA is a valid law: Congress had to pass the law in order to correct a wrong interpretation, making sure the law complied with what the Constitution dictates.

Clearly the reasoning behind the decision that the RFRA is unconstitutional is very complex. In a sense, there are two major issues at play. First, one must interpret the Constitution as defining the balance of power among the branches of the government. To this day the rights and duties Congress has in upholding the Constitution and amending law are still unclear. While Marbury v. Madison has long been accepted as giving the Courts the ultimate say on the law, the definition of Congress's power "to enforce" in the 14^th Amendment is still confused and disputed.

Second, one must interpret the first amendment as the Court has done in the past century, and its freedom of religion clause. There remains "intolerable tension in free-exercise law,"³¹ largely due to disagreements over what religious acts and beliefs are covered under the first amendment clause.

Obviously, religion cannot be used as an excuse for disobeying religiously neutral laws, and there is a line at which acts committed in the name of religious beliefs, and laws established for everyone in the country collide.

The Supreme Court and Congress through their judgments and bills are both trying to redraw and redefine this line, yet they meet increasing perplexity and conflict in determining what the Constitution's free exercise clause really means.

While the RFRA may no longer be a force in determining America's fundamental rights, there is no doubt that comparable laws will continue to emerge.