Boerne v. Flores, 521 U.S. 507 (1997), argued 19 Feb. 1997, decided 25 June 1997 by a vote of 6 to 3; opinion delivered by Kennedy; concurring opinions by Scalia and Stevens; dissenting opinions by Breyer, O'Connor, and Souter. In 1993, Congress passed the Religious Freedom and Restoration Act (RFRA), which expressly forbade control of religious uses of land by local governments. The intent of the act was to restore strict scrutiny of local land‐use controls affecting religious uses under the doctrine of Sherbert v. Verner (1963) after the U.S. Supreme Court's decision in Employment Div., Dept. of Human Resources v. Smith (1990). That same year, the city of Boerne, Texas, turned down a request for an addition to the Spanish Mission–style St. Peter the Apostle Roman Catholic Church, a designated landmark in the city's historic district. The addition would have replaced nearly 80 percent of the church, so the city council found that such expansion would impermissibly alter the exterior of the structure. P. F. Flores, archbishop of San Antonio, Texas, challenged that denial on the ground that RFRA exempted St. Peter's from landmark designation.

In City of Boerne v. Flores, the Supreme Court held the statute unconstitutional on the ground that Congress exceeded its authority. While Congress relied on the Fourteenth Amendment to the U.S. Constitution in imposing RFRA's requirements on the states, the Court held that RFRA is not a proper exercise of Congress's section 5 powers to enforce the life, liberty, or property guarantees in that amendment because it contradicts vital principles necessary to maintain the separation of powers and the federal‐state balance. The Court held that RFRA attempted a substantive change in constitutional protections rather than a response to prevent state unconstitutional behavior. As such, RFRA is a considerable congressional intrusion into the states' traditional prerogatives and general authority to regulate under the police power.

Congress responded by passing the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000, which specifically lists rezoning on its list of forbidden land‐use controls affecting religious properties. The result has been a fresh series of challenges. Several commentators expect RLUIPA to share the same fate as its unconstitutional predecessor or that courts will restrict its applicability, and the relatively few recent federal circuit court of appeals cases appear to support this position. For example, Civil Liberties for Urban Believers v. Chicago, 342 F.3d 752 (7th Cir. 2003) confirmed a district court finding that placing churches on an “equal footing” with nonreligious assembly uses satisfied any RLUIPA requirements for local government, even if churches had to expend money to find suitable locations within city limits.

Federal district court opinions are more generally supportive of RLUIPA. Concluding that RLUIPA is a constitutional exercise of Congressional power under the Commerce Clause and the Fourteenth Amendment and did not violate the First or Tenth Amendments.

David L. Callies

BOERNE V. FLORES

BOERNE V. FLORES, 521 U.S. 507 (1997), reaffirmed Marbury v. Madison's doctrines concerning judicial review and the separation of powers, while limiting congressional authority under section 5 of the Fourteenth Amendment.

In Employment Division v. Smith, 494 U.S. 872 (1990), the U.S. Supreme Court sustained a state's power to deny members of the Native American Church unemployment benefits after being fired for ingesting peyote sacramentally. Justice Antonin Scalia's 5–4 majority opinion declined to apply the then prevailing standard that required government to demonstrate a compelling interest when it impinged on First Amendment religious liberties. Instead, Scalia reverted to the doctrine of Reynolds v. United States, 98 U.S. 145 (1878), which held that a state need not make an exception from otherwise valid, generally applicable laws for conduct motivated by religious belief. Scalia acknowledged that his holding would "place [religious minorities] at a relative disadvantage."

Troubled by the Scalia opinion's indifference to the burden on the religious practices of some racial minorities, Congress enacted the Religious Freedom Restoration Act (RFRA) in 1993, restoring the compelling-interest test in free-exercise cases, in effect "overruling" Employment Division v. Smith.

In Boerne, which involved a dispute between Boerne, Texas, and Archbishop P. F. Flores over Flores's wish to remodel a church incompatible with city zoning laws, the court split 6–3 to hold RFRA unconstitutional. Justice Anthony Kennedy held that Congress lacked power to enact RFRA under section 5 of the Fourteenth Amendment. He stated that section 5 permits Congress to enact only remedial measures enforcing constitutional rights, not to create new substantive rights inconsistent with a previous Supreme Court interpretation. In Boerne, the Supreme Court continued to exalt its powers at the expense of congressional authority.

BIBLIOGRAPHY

Engel, Steven A. "The McCulloch Theory of the Fourteenth Amendment: City of Boerne v. Flores and the Original Understanding of Section 5." Yale Law Journal 109 (1999): 115–154.

McConnell, Michael W. "Institutions and Interpretations: A Critique of City of Boerne v. Flores." Harvard Law Review 111 (1997): 153–195.

Symposium: "State and Federal Religious Liberty Legislation: Is It Necessary? Is It Constitutional? Is It Good Policy?" Cardozo Law Review 21 (1999): 415–806.

William M.Wiecek

See alsoMarbury v. Madison ; Reynolds v. United States .