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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.


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 .

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