Michael W. McConnell*
It does not often happen that a "conservative" Supreme
Court manages, in a single decision, to repudiate two of the most
central principles of conservative constitutionalism. But City of
Boerne v. Flores, 117 S. Ct. 2157 (1997), did so. We will live to
regret this unfortunate decision.
Since the heady days of the Warren Court, the most important structural
question for our constitutional order has been the balance of power
between an unelected and unconstrained federal judiciary and the
elected representatives of the people. With few exceptions, conservatives
have insisted that the Constitution itself--and not the opinions
of passing majorities of the Justices-is the law of the law. Standing
with Lincoln and Jefferson, conservatives have maintained that each
branch of government has a coordinate responsibility and authority
to interpret the Constitution, and that the authority of the Supreme
Court extends no further than decision of particular cases and controversies.
Conservatives have also generally believed in the importance of
a robust and independent set of "mediating institutions"--associations
that stand between the citizen and the state and provide opportunities
for collective, but noncoercive, deliberation about morality and
the common good. Foremost among these associations, and most explicitly
protected by the text of the Constitution, are the religious institutions
of America: churches, synagogues, temples, mosques, and meeting
houses where Americans gather together to worship God in accordance
with the dictates of conscience. The Free Exercise Clause has been
a guarantee that the religious life of the nation would not be subject
to political influence or control.
Sadly, in a closely-divided, poorly reasoned decision in 1990--Employment
Division v. Smith, 494 U.S. 872 (1990)--the Supreme Court held that
the Free Exercise Clause of the First Amendment does not protect
the free exercise of religion except in the unusual case in which
the government has "singled out" religion in a bigoted
or discriminatory way. So-called "neutral and generally applicable
laws," according to the Court, are exempt from constitutional
scrutiny no matter how deeply they may intrude into the religious
freedom of Americans. Under this theory, the churches and synagogues
of America have to knuckle under to every passing fad or ideology
that may take power. Do the folks in charge of San Francisco think
it is immoral to refuse to hire homosexuals? Then churches can be
punished if they refuse to hire open homosexuals as ministers, teachers,
or church organists. (See Walker v. First Presbyterian Church, 22
FEP Cases (BNA) 762 (Cal. Sup. Ct. 1980) (decided the other way
under pre-Smith law).) Do the medical authorities in Maryland think
that all medical students should be trained in abortion procedures?
Then Catholic teaching hospitals can be denied accreditation if
they refuse. (See St. Agnes Hospital v. Riddick, 748 F. Supp. 319
(D. Md. 1990).) Do the safety mavens at OSHA think that their rules
regarding hard hats on construction sites are more important that
religious convictions? Then they can effectively prevent practicing
Sikhs or Amish from working in the construction industry. (See OSHA
Notice CPL 2 (Nov. 5, 1990)).
More shocking yet, the Smith decision had no basis in any of the
traditional sources of constitutional law. The Court did not claim
that its doctrine was a better interpretation of the constitutional
text. (The Free Exercise Clause appears on its face to protect a
specific freedom, like speech or property, not to create a nondiscrimination
requirement.) The Court did not even mention the history or original
understanding of the Clause (which I think points the other way).
And although the Smith decision was purportedly based on precedent,
its actual treatment of precedent was so shabby that even supporters
of the decision have found it embarrassing.
Congress responded by enacting the Religious Freedom Restoration
Act (RFRA), creating a statutory cause of action to challenge federal,
state, and local governmental action that "substantially burdens"
the exercise of religion without a compelling governmental purpose.
This, Congress thought, would bring about a return to the authentic
meaning of the First Amendment.
RFRA's constitutionality, as applied to state and local governments,
depends on whether it can be seen as "enforcing" the provisions
of the Fourteenth Amendment, which for these purposes includes most
provisions of the Bill of Rights, including the Free Exercise Clause.
Unfortunately, in City of Boerne v. Flores, the Court did not even
purport to ask that question. Instead, the Court asked the quite
different question: Does RFRA enforce the Supreme Court's interpretation
of the provisions of that Amendment? The Court did not trouble itself
to consider the merits of Congress's view that the free exercise
of religion, properly interpreted, extends even to laws of general
applicability. When Congress legislates "against the background
of a judicial interpretation of the Constitution already issued,"
the Court stated, "it must be understood that in later cases
and controversies the Court will treat its precedents with the respect
due them under settled principles, including stare decisis"
(117 S. Ct. at 2172). This is reminiscent of the Court's egregious
decision in Planned Parenthood v. Casey, 505 U.S. 833 (1992), in
which the Court held that it must stick to its earlier abortion
holdings, even if wrong, because it would "subvert the Court's
legitimacy beyond any serious question" to admit its error.
At bottom, Boerne and Casey rest on the same arrogant pretension:
that the Court's rulings--not the Constitution--are the law of the
It was indefensible--as Justice O'Connor pointed out--for the Court
in Boerne to hold unconstitutional an Act of Congress on the ground
that it was not "enforcing" the Free Exercise Clause,
without even entertaining briefing or argument on the meaning of
that Clause. One would think that a solemn determination by a unanimous
House of Representatives and an almost-unanimous Senate that the
5-4 Smith decision was incorrect would be entitled to respectful
consideration, even deference. But the Court did not even go through
the motions of explaining why Congress's interpretation of the Free
Exercise Clause was wrong. It treated the congressional interpretation
as an irrelevance, if not an impertinence.
Had the Court looked into the matter, it might well have concluded
that Congress had a sound basis for its decision. The Smith decision,
after all, was not based on a construction of the language or historical
purposes of the Free Exercise Clause. Indeed, the Court candidly
acknowledged that its interpretation of the Clause would have the
effect of placing "at a relative disadvantage those religious
practices that are not widely engaged in" (494 U.S. at 890).
The rationale of Smith was that the proper occasions for free exercise
accommodations could not be "discerned by the courts."
It was better, the Court reasoned, to leave the practices of weak
and unpopular religions unprotected than to allow judges to "weigh
the social importance of all laws against the centrality of all
religious belief" (id.).
By enacting RFRA, Congress simply insisted that the free exercise
of religion be fully enforced, for small as well as large faiths,
despite the costs. That is what Section Five is for. The Smith Court
may have been justified, under principles of judicial restraint,
in deferring to democratic decisionmaking where the alternative
appeared to be open-ended judicial balancing. But when the representatives
of the people have decided to enforce the Free Exercise Clause fully,
and to suffer the cost, judicial restraint cuts the other way. A
law directing that enforcement of the Free Exercise Clause be given
precedence over the institutional concerns embodied in the Smith
decision is surely a law "enforcing" the Amendment.
The Boerne decision is all the more unpersuasive when you consider
the history of the Fourteenth Amendment. Contrary to the Court's
view that the Amendment recognizes the Court's "primary authority
to interpret the Constitution" (117 S. Ct. at 2166), the initial
drafts of the Amendment did not envision a judicial role at all.
Congress was to be the sole enforcer of the Amendment. The addition
of judicial review was an afterthought--a safeguard against the
possibility that future Congresses might not be committed to enforcement
of the Amendment. It is doubtful that supporters of the Fourteenth
Amendment would be greatly impressed with the "primary authority"
of the institution that had so recently produced Dred Scott and
Ex parte Milligan. As Republican Senator Oliver Morton commented:
"the remedy for the violation of the fourteenth and fifteenth
amendments was expressly not left to the courts. The remedy was
legislative, because in each the amendment itself provided that
it shall be enforced by legislation on the part of Congress."
Some conservatives have praised the Boerne decision as a victory
for federalism. But this is largely an illusion. State and local
governments remain fully subject to federal law in this area. The
only question is whether that law will be set by Congress, or by
the courts. The price paid for this ersatz federalism was to ignore
the text and purpose of the Free Exercise Clause and to affirm a
vision of judicial supremacy that most conservatives thought was
a relic of the past.
*Michael W. McConnell is Presidential Professor, University of
Utah College of Law. A more extended presentation of these views
will appear in the November, 1997 issue of the Harvard Law Review,
under the title: "Institutions and Interpretations: A Critique
of City of Boerne v. Flores."