Congress, the Supreme Court, and Religious Liberty

The Case of City of Boerne v. Flores

J. Waltman

• Publisher: Palgrave Macmillan
• Year: 2013
• Print ISBN: 9781137300638
• eBook ISBN: 9781137300645
• Topic: Social Sciences
• Subtopic: Civil Rights in Law
• Index: Social Sciences

In the case City of Boerne v. Flores, the Supreme Court struck down the Religious Freedom Restoration Act of 1993. Waltman offers the first book-length analysis of the act to show how this case contributes to an intense legal debate still ongoing today: Can and should the Supreme Court be the exclusive interpreter of the Constitution?

Chapter 1

The Road to RFRA

The First Amendment to the Constitution begins, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Although the first segment, the “establishment clause,” was raised by Justice John Paul Stevens in his dissent in City of Boerne v. Flores,1 it was the line of cases decided under the second portion, the “free exercise clause,” that landed the case on the Supreme Court’s docket.2 When Congress reacted to the court’s 1990 decision of Employment Division of Oregon v. Smith3 by passing the Religious Freedom Restoration Act (RFRA) in 1993, it was attempting to claim a role in a stream of jurisprudence that stretched back to 1879 and the case of Reynolds v. United States.4

Reynolds v. United States: Belief versus Action

This case arose from the attempt of the Mormon enclave in Utah territory to protect its practice of polygamy.5 The church had adopted a teaching that polygamy was a religious duty, and no one doubted that this was a sincerely held belief by its members. Most Americans, however, were hostile to the sect, and Mormons had encountered discrimination and even violence in the Midwest before moving to Utah. While several aspects of Mormonism engendered these ill feelings, nothing touched raw nerves like polygamy. In the press, it was labeled, along with slavery, as one of the “twin relics of barbarism.”6 For a country that had recently completed a wrenching civil war to eradicate the latter, the former was naturally considered odious.

Because Utah was a territory, Congress was responsible for its governance. Responding to anti-Mormon agitation, in 1862 Congress passed the Morrill Anti-Polygamy Act. It struck at the church not only by banning polygamy but also by voiding the church’s corporate charter and limiting the amount of property any religious body could own in a territory. The antipolygamy provision, though, proved unenforceable. Since Mormons made up almost all the population of Utah territory, grand juries could not be found to indict people for violating the act. A few years later, after it had settled most Reconstruction issues, Congress once again turned its attention to “the Mormon question.” In 1874, it passed the Poland Act, which turned the federal judicial system in Utah over to appointed federal authorities. Mormon leaders decided it was time to use the free exercise clause to mount a challenge to the federal government’s actions. George Reynolds, a young employee of the church who had recently married his second wife, was selected to put his name on the case.

The case was decided by the Supreme Court in 1879, with Chief Justice Morrison Waite writing the opinion for the court. Waite began by acknowledging that Mr. Reynolds was entirely sincere in attempting to follow the teachings of a legitimate religion. However, that was not the question: “the question is whether religious belief can be accepted as a justification of an overt act made criminal by the law of the land.” Waite quickly answered “no” to this proposition. Nevertheless, that did not end the matter, as the law in question might be unconstitutional because it lay outside Congress’s authority: “Congress cannot pass a law for the government of the territories which shall prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation. Religious freedom is guaranteed everywhere throughout the United States, so far as congressional interference is concerned. The question to be determined is, whether the law under consideration comes within this prohibition.”

Although we do not know why, Waite felt the best approach for elaborating the free exercise clause was to examine the intentions of the amendment’s drafters.7 For guidance in this endeavor he turned to a friend of his, the eminent historian George Bancroft. Bancroft told Waite that James Madison and Thomas Jefferson were the chief architects of the amendment and helpfully supplied him with a number of pertinent books and documents, which Waite analyzed carefully. (He had a well-deserved reputation for thorough research. He once spent months studying electricity before deciding a case, for example.)

The chief justice’s mind fixed on two documents in particular. One was a statute supported by both Madison and Jefferson, which passed the Virginia legislature only two years before the Constitution was drafted. Part of its wording was that “to suffer the civil magistrate to intrude his powers into the field of opinion . . . is a dangerous fallacy which at once destroys all religious liberty . . . [I]t is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.”8 The other was the famous 1802 letter that Jefferson wrote to the Danbury Baptist Association, saying “that the legislative powers of the government reach actions only, and not opinions.” From these statements, Waite drew the central conclusion for which the case stands: “Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.” In short, there is a sharp distinction between opinion and actions, and while one is free to believe whatever he or she chooses, government has ample power to regulate actions, even if they flow from sincere belief, if those actions violate fundamental societal principles.

In order to decide this particular case, it was only necessary then to determine if polygamy was “in violation of social duties or subversive of good order.” Citing historical evidence, he concluded that it was, in that it violated a fundamental precept of Western society. Still, though, could Reynolds claim an exemption from the statute on religious grounds? Waite answered in the negative, for “to permit this would make the professed doctrines of religious belief superior to the law of the land, and in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”

Incorporation: Cantwell v. Connecticut

The text of the First Amendment explicitly limits its application to Congress. While the wording of some of the other amendments that make up the Bill of Rights, numbers two through eight, is more ambiguous, the Supreme Court held in 1833, in the case of Barron v. Baltimore,9 that none of these amendments applied to the states. This ruling was reaffirmed in 1845.10

The adoption of the Fourteenth Amendment in 1868, though, has changed this. After granting citizenship to everyone “born or naturalized in the United States,” section 1 of the amendment reads, “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.” As we shall see later, it seems clear that most, if not all, of the framers of the amendment intended the Bill of Rights to henceforward apply to the states. Some believed they were accomplishing this through the “privileges or immunities” clause while others leaned on the “due process” clause; nevertheless, the result was the same.11

The Supreme Court, however, turned its back on that interpretation when it issued its first decision on the matter in the famous Slaughterhouse cases of 1873.12 The majority, over the vigorous dissent of Justice Stephen J. Field, held that the provisions of section 1 did not make the Bill of Rights applicable to the states. In the following years in a number of cases mostly involving criminal procedure, the Supreme Court held to that view.13 In one 1884 case, Justice John Marshall Harlan endorsed Field’s view in a dissent, but he could not persuade the majority of his brethren. This position was underscored again in 1922 when the court said in Prudential Insurance Co. v. Cheek that “the Constitution of the United States imposes upon the states no obligation to confer upon those within its jurisdiction . . . the right to free speech.” 14

However, a mere three years later, the position of the court began to change. Benjamin Gitlow was arrested in New York for violating its Criminal Anarchy Act when he published a document that contained a veiled call for a Communist revolution. Although it was not essential to the decision in Gitlow v. New York, Justice Edward Sanford added an important dictum: “For present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States. We do not regard the incidental statement in Prudential Insurance Co. v. Cheek that the Fourteenth Amendment imposes no restrictions on the states concerning freedom of speech, as determinative of this question.”15 Although Gitlow arguably won an important victory with this statement, his conviction was nonetheless upheld. This was followed in 1931 by another ruling involving freedom of the press, Near v. Minnesota.16 The justices held that a state law restricting what could be published was “an infringement of the liberty of the press guaranteed by the Fourteenth Amendment.” The next case, Hamilton v. Regents of the University of California,17 decided in 1934, was the first one involving the possible incorporation of the free exercise clause. The University of California, in common with all land-grant colleges at the time, required that its male students take courses in military training. A group of pacifist religious students objected, and when their request for an exemption was turned down by the university, brought a suit. The Supreme Court quoted the Fourteenth Amendment, then said that the students’ “contentions are that the enforcement of the orders prescribing instruction in military science and tactics abridges some privilege or immunity covered by the first clause and deprives of liberty safeguarded by the second.” The justices first held that any privilege or immunity guaranteed by the amendment derives its force from the due process clause; consequently, they need only deal with the latter. Specifically, “There needs be no attempt to enumerate or comprehensively to define what is included in the ‘liberty’ protected by the due process clause. Undoubtedly it does include the right to entertain the beliefs, to adhere to the principles, and to teach the doctrines on which these students base their objections to the order prescribing military training.” In neither Near nor Hamilton, it might be noted, did the court state categorically whether the liberty interest flowed from an independent substantive guarantee of the due process clause itself, or whether it was manifested through incorporation of the First Amendment. Incidentally, Mr. Hamilton and the others lost their case, as the court upheld the university’s action as a legitimate exercise of governmental power.

The free exercise clause finally won explicit incorporation in 1940 when the Supreme Court decided Cantwell v. Connecticut.18 Norman Cantwell and his two sons, devout Jehovah’s Witnesses, were going door to door in a heavily Roman Catholic neighborhood of New Haven, Connecticut. They were distributing pamphlets, soliciting contributions, and playing a phonograph record to anyone who agreed to listen. The record was basically an abrasive attack on the Catholic Church. The three were arrested and charged with unlawful soliciting and a breach of the peace. They claimed that both their free exercise and free speech rights had been violated by the city. In its opinion, though, the court focused almost exclusively on the free exercise right. Its central holding, not only endorsing the clause’s incorporation, but also restating Justice Waite’s distinction between belief and action, read,

We hold that the statute . . . deprives [the Cantwells] of their liberty without due process of law in contravention of the Fourteenth Amendment. The fundamental concept of liberty embodied in that Amendment embraces the liberties guaranteed by the First Amendment. The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws. The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus, the Amendment embraces two concepts—freedom to believe and freedom to act. The first is absolute, but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.

Here, the court held, Connecticut had gone too far in restricting the Cantwells’ actions. But the central point for our purposes was that the free exercise clause was now applicable to the states as well as Congress.

The Compelling Interest Test

In 1963, the Supreme Court took the first step on the path to the Religious Freedom Restoration Act being passed 30 years later, and then to City of Boerne v. Flores. For in that year, the justices fashioned a test that was to become the standard for deciding free exercise cases for the next 27 years, the compelling interest test.

In 1961, Justice William Brennan had dissented in the case of Braunfield v. Brown,19 which involved a challenge to a Pennsylvania law that demanded that all businesses close on Sunday in order for the public to enjoy a general day of rest. The majority saw the law as fulfilling a general secular purpose, but Brennan thought that they were not even giving “so much as a deferential nod towards that high place we have accorded religious freedom in the past” and that now “any substantial state interest will justify encroachments on religious practice, at least if those encroachments are cloaked in the guise of some seemingly public purpose.” Instead, he argued the proper question was “what . . . is the compelling state interest which impels . . . Pennsylvania to impede the appellant’s [i.e., a Jewish business owner who wished to close on Saturday instead of Sunday] freedom of worship?” Here he could find none and hence would have found the law unconstitutional.

When Sherbert v. Verner20 came to the court two years later, Brennan convinced his colleagues that his test was the appropriate one, and he was assigned to write the opinion. When Adell Sherbert was laid off from her job in a South Carolina textile mill, she applied for unemployment benefits. She was offered several other jobs, but they all entailed Saturday work. As a devout Seventh Day Adventist, she was required to attend worship services on Saturday and refused the positions. The state then denied her unemployment payments. Brennan noted that Ms. Sherbert was being forced by the state “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.” This was tantamount to a fine for worshiping on Saturday. As he had argued in the earlier case, he maintained that the question was “whether some compelling state interest enforced in the eligibility provisions of the South Carolina statute justifies the substantial infringement of [Ms. Sherbert’s] First Amendment rights?” Thus the “compelling interest test” was now endorsed by the court’s majority and stood available for later use. (Incidentally, Brennan found South Carolina’s claim that the policy discouraged fraud to be wanting.)

The next case to utilize the concept, if not the name, of the compelling interest test was Wisconsin v. Yoder,21 decided in 1972. Amish parents objected to sending their children to school beyond the eighth grade, a violation of the state’s compulsory school attendance law. In establishing the framework for deciding the case, Chief Justice Warren Burger wrote that only a “state interest of sufficient magnitude” would justify impinging on a citizen’s free exercise of religion and that those were “only those interests of the highest order” (citing Sherbert for support). Further, if a state policy “unduly burdens” free exercise, it is invalid. He did turn to Brennan’s phrasing...

Table of contents

• Title Page
• Copyright Page
• Contents
• Acknowledgments
• Introduction
• 1. The Road to RFRA
• 2. Boerne, Texas, and St. Peter Apostolic Catholic Church
• 3. A Building Permit Denied
• 4. Separation of Powers and Federalism in the Rehnquist Court
• 5. The Federal District Court and the Court of Appeals
• 6. The Supreme Court Decision
• 7. Political Reaction
• 8. Back in Boerne: Compromising to Build a Church
• 9. Conclusion
• Photographs of St. Peter’s Catholic Church
• Notes
• Bibliography