Academic journal article William and Mary Law Review

City of Boerne V. Flores: A Landmark for Structural Analysis

Academic journal article William and Mary Law Review

City of Boerne V. Flores: A Landmark for Structural Analysis

Article excerpt


As the representative of the City of Boerne, Texas in City of Boerne v. Flores,(1) the Supreme Court case invalidating the Religious Freedom Restoration Act of 1993 (RFRA or the "Act"),(2) I had the good fortune to discuss the Act with a wide range of individuals in our society, including: members of the clergy, the press, state and local politicians, a wide variety of legal and theological scholars, lobbyists for a significant cross-section of organizations, members of home-schooling, historical preservation, and Indian rights advocacy groups, and citizens acting individually and collectively in neighborhood associations. I also had the good fortune to argue the case before the U.S. Supreme Court and therefore to converse with the Justices about the Act--albeit in an undeniably brief period of time.

No matter how the particular individual felt about RFRA, and no matter the forum, one aspect of RFRA's enactment intrigued the speaker: RFRA was passed by an overwhelming majority in Congress(3) and was supported by an unprecedented and massive coalition of organized religions.(4) I was frequently asked, "Don't the numbers bother you?" What they meant was, "Don't these numbers make any constitutional difference, and shouldn't they?" To varying degrees of success, I explained to my many interlocutors that the numbers were not relevant to the constitutional calculus and certainly not a good reason to suspend serious constitutional inquiry. The Constitution demands a representative system in which representatives are supposed to be independent of interest groups, no matter their stripe.(5) Political pressure, even when exercised by organized religion, is no palliative for Congress; it is still beholden to the people to judge what is in the country's best interest, and Congress is obligated to enact only constitutional measures.(6) I usually completed my explanation with a reference to lemmings, saying the numbers in Congress are surely more a testament to the power of Washington lobbyists for religion than to the conclusion that Congress has acted within its constitutionally circumscribed role. In fact, Congress transgressed constitutional boundaries because it failed to ask the most important constitutional questions.

Despite my certainty about the constitutional conclusions, which was vindicated by the Court's opinion in Flores, I must admit that the day I received twenty amicus briefs written in favor of my client's opponent Archbishop Flores,(7) many of which were penned by notable representatives of time-honored religions,(8) and the Catholic Church's brief by the eminent law professor and religious scholar Douglas Laycock, it occurred to me that perhaps I should start caring, or at least craft a more detailed apologetic of my view that the number of supporters in Congress or in the world of religion is not constitutionally significant. Hence, this Essay.

Principles of the Constitution's structure--the separation of congressional from judicial powers and federal from state lawmaking authority--felled RFRA.(9) Congress and its advisors missed these vital structural issues when they considered RFRA.(10) In fact, a reading of the Congressional Research Service's (CRS) reports to Congress or the majority of the testimony before Congress would not have disclosed that these fundamental constitutional issues were relevant.(11)

The Court's decision invalidating the Act is a sterling example of the sturdiness of the Constitution's structure and, indeed, of the Court in the face of immense and impressive political pressure.(12) Without question, Flores is a landmark decision and grandly illustrates that the constitutional structure of representative democracy is not premised on the inevitability of interest group rule but rather exerts an independent force against interest group domination.(13) The Act's invalidation is the best historical example we have to refute the notion that interest group politics determine the outcome of policy debates in this society. …

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