City of Boerne v. Flores,
521 U.S. 507 (1997)

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No. 95-2074. Argued February 19, 1997-Decided June 25,1997

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.

Held: RFRA exceeds Congress' power. pp. 512-536.

(a) Congress enacted RFRA in direct response to Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, in which the Court upheld against a free exercise challenge a state law of general applicability criminalizing peyote use, as applied to deny unemployment benefits to Native American Church members who lost their jobs because of such use. In so ruling, the Court declined to apply the balancing test of Sherbert v. Verner, 374 U. S. 398, which asks whether the law at issue substantially burdens a religious practice and, if so, whether the burden is justified by a compelling government interest. 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 ... interest." 42 U. S. C. § 2000bb-1. RFRA's mandate applies to any branch of Federal or State Government, to all officials, and to other persons acting under color of law. § 2000bb-2(1). Its universal coverage includes "all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after [RFRA's enactment]." § 2000bb-3(a). Pp. 512-516.

(b) 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, lib-



erty, or property, without due process of law," or denying any person the "equal protection of the laws," § 1, and empowers Congress "to enforce" those guarantees by "appropriate legislation," § 5. Respondent Archbishop and the United States contend that RFRA is permissible enforcement legislation under § 5. Although Congress certainly can enact legislation enforcing the constitutional right to the free exercise of religion, see, e. g., Cantwell v. Connecticut, 310 U. S. 296, 303, its § 5 power "to enforce" is only preventive or "remedial," South Carolina v. Katzenbach, 383 U. S. 301, 326. The Amendment's design and § 5's 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. 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. The need to distinguish between remedy and substance is supported by the Fourteenth Amendment's history and this Court's case law, see, e. g., Civil Rights Cases, 109 U. S. 3, 13-14, 15; Oregon v. Mitchell, 400 U. S. 112, 209, 296. The Amendment's design has proved significant also in maintaining the traditional separation of powers between Congress and the Judiciary, depriving Congress of any power to interpret and elaborate on its meaning by conferring self-executing substantive rights against the States, cf. id., at 325, and thereby leaving the interpretive power with the Judiciary. Pp. 516-529.

(c) RFRA is not a proper exercise of Congress' § 5 enforcement power because it contradicts vital principles necessary to maintain separation of powers and the federal-state balance. An instructive comparison may be drawn between RFRA and the Voting Rights Act of 1965, provisions of which were upheld in Katzenbach, supra, and subsequent voting rights cases. In contrast to the record of widespread and persisting racial discrimination which confronted Congress and the Judiciary in those cases, RFRA's legislative record lacks examples of any instances of generally applicable laws passed because of religious bigotry in the past 40 years. Rather, the emphasis of the RFRA hearings was on laws like the one at issue that place incidental burdens on religion. It is difficult to maintain that such laws are based on animus or hostility to the burdened religious practices or that they indicate some widespread

Full Text of Opinion

Primary Holding

If a law that enforces Fourteenth Amendment rights is preventive rather than remedial, it must be congruent and proportional to the goal that it is aiming to achieve.


Archbishop of San Antonio Patrick Flores sought to enlarge St. Peter's Church in Boerne, Texas, which was a historic mission-style building. When the permit was denied based on the historic area surrounding the church, Flores cited the Religious Freedom Restoration Act of 1993 (RFRA) in seeking to have that ruling overturned. RFRA had required courts to use strict scrutiny when reviewing any regulation that substantially burdened the free exercise of religion, even if it did not intend to discriminate against religion and was generally applicable. The strict scrutiny standard requires the government to show that it has a compelling government interest and has chosen a narrowly tailored (sometimes "the least restrictive") means for furthering that interest. It applied retroactively to laws passed before its enactment, as well as to state and local governments under Section 5 of the Fourteenth Amendment.

Flores stated that the local zoning authorities had placed a substantial burden on the free exercise of religion because the congregation of St. Peter's had expanded to the point where the existing structure was no longer sufficient. He argued that the government lacked a compelling state interest under the strict scrutiny test.

Procedural History

US District Court for the Western District of Texas - 877 F. Supp. 355 (W.D. Tex. 1995)

Judgment for the defendants. RFRA is unconstitutional, so the Archbishop cannot challenge the zoning decision on those grounds.

US Court of Appeals for the Fifth Circuit - 73 F.3d 1352 (5th Cir.)

Reversed. RFRA is constitutional, and the zoning decision violates it. A permit should have been granted.

Issues & Holdings

Issue: Whether the Religious Freedom Restoration Act of 1993 (RFRA) is constitutional.
Holding: Not as applied to the states.



  • Anthony M. Kennedy (Author)
  • William Hubbs Rehnquist
  • John Paul Stevens
  • Antonin Scalia
  • Clarence Thomas
  • Ruth Bader Ginsburg

The majority found that, contrary to its decision in Katzenbach v. Morgan, only courts can shape the substantive rights under the Fourteenth Amendment. Legislatures cannot add to those rights, so RFRA was found to be unconstitutional as it applies to the states because it lacked congruence and proportionality with the rights provided by the Court. Legislatures can only enforce a pre-existing interpretation of the Fourteenth Amendment, unless they are enacting prophylactic legislation that aims to prevent violations of rights guaranteed by the Court.

Through RFRA, according to Kennedy, Congress essentially had changed the meaning of the Free Exercise Clause in the First Amendment from the interpretation provided by courts. This could not be justified within the enforcement powers granted to the legislatures by Section 5 of the Fourteenth Amendment, since rights are not enforced by changing their definition. If Congress were allowed to do so, it would infringe on the judiciary's authority under the separation of powers doctrine. Any enforcement mechanisms must have a proportional relationship between the stated objective and the chosen means to achieve it.


  • John Paul Stevens


  • Antonin Scalia (Author)
  • John Paul Stevens


  • Sandra Day O'Connor (Author)
  • Stephen G. Breyer


  • David H. Souter (Author)


  • Stephen G. Breyer (Author)

Case Commentary

Only the judicial branch has the authority to interpret the Constitution, and Congress cannot introduce its own interpretation as the basis for legislation and create new substantive rights in the process. This opinion essentially repudiated the reasoning in Katzenbach v. Morgan, in which the Court held that the rights that it created under the Fourteenth Amendment were a floor rather than a ceiling, and that Congress was free to add further substantive rights. The Court returned to its state action doctrine from the 19th-century Civil Rights Cases in limiting the prophylactic power of Congress.

The decision's congruence and proportionality test resonated in three areas of constitutional doctrine: Section 5 of the Fourteenth Amendment, the Eleventh Amendment, and the First Amendment. The Court defended the power of its own precedent in Employment Division v. Smith, the case that had caused Congress to enact RFRA, from legislative overrule. There was also a strong federalism component to the reasoning of the majority, which sought to protect the federal government from intruding into issues traditionally handled at the state level. The Court thus saw both horizontal (judiciary-legislative) and vertical (federal-state) separation of powers concerns in the enactment of RFRA.

It is important to note that RFRA was struck down only as it applies to the states. The law remains valid when applied to actions by the federal government. Congress tried to work around this decision in 2000 by using the Spending Clause to require local governments that receive federal funding to accomodate the interests of religious freedom in their land use laws under the Religious Land Use and Institutionalized Persons Act. This curbed the power of states and localities to enact historical preservation ordinances.

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