Academic journal article William and Mary Law Review

Freedom from Persecution or Protection of the Rights of Conscience? A Critique of Justice Scalia's Historical Arguments in City of Boerne V. Flores

Academic journal article William and Mary Law Review

Freedom from Persecution or Protection of the Rights of Conscience? A Critique of Justice Scalia's Historical Arguments in City of Boerne V. Flores

Article excerpt

In City of Boerne v. Flores,(1) the Supreme Court invalidated the Religious Freedom Restoration Act (RFRA or the "Act"),(2) on the ground that it exceeded Congress's power to "enforce" the provisions of the Fourteenth Amendment(3) RFRA would have provided protection against governmental acts that "substantially burden" a person's exercise of religion unless the government could demonstrate they are necessary to achieve a compelling governmental interest.(4)

In Employment Division v. Smith,(5) the Court held that the Free Exercise Clause of the First Amendment provides protection only against governmental action that singles out, or is specifically directed at, religion,(6) Under Smith, neutral, generally applicable laws are not subject to First Amendment challenge no matter how severe an impediment they may be to the exercise of religion.(7) I shall call the Smith interpretation of free exercise the "nondiscrimination" interpretation because it treats the Free Exercise Clause as a protection against discrimination against religion, and I shall call the alternative the "freedom-protective" interpretation because it protects a specific freedom against unnecessary governmental interference. RFRA was Congress's attempt to return to the freedom-protective understanding. The Act was invalidated on the ground that it went beyond the judicial definition of the constitutional right and could not be seen as enforcing the Free Exercise Clause.(8)

In their dissenting opinions, Justices O'Connor, Souter, and Breyer argued, with varying degrees of certitude, that Smith was wrongly decided and urged the Court to invite briefing and argument on that specific question.(9) If the Court overruled Smith, RFRA would no longer present a clash between congressional and judicial interpretations of the Constitution. Justice O'Connor pointed out that Smith had adopted its narrow interpretation of the Free Exercise Clause without briefing or argument by the parties.(10) She argued that the Smith decision contradicted precedent and "has harmed religious liberty," citing four cases in which lower courts had invoked the Smith rule to prevent "searching judicial inquiry" into infringements on religious exercise.(11) She explained that stare decisis should not dissuade the Court from revisiting Smith because the decision was "demonstrably wrong" and because, as a recent decision, it had not "engendered the kind of reliance on its continued application that would militate against overruling it."(12) She devoted the vast majority of her dissenting opinion, however, to a detailed examination of historical evidence that, she concluded, "reveals that its drafters and ratifiers more likely viewed the Free Exercise Clause as a guarantee that government may not unnecessarily hinder believers from freely practicing their religion," than as a mere protection against discrimination.(13) A major part of this evidence consisted of various colonial charters and state constitutions that protected religious liberty subject to a proviso that this liberty not be used to disturb public peace or safety.(14) Justice O'Connor pointed out that these provisos would have been "superfluous" if the liberty so granted had been limited to laws discriminating against religion.(15) I have written previously on these historical points,(16) as have other historians and constitutional scholars.(17) I therefore will not comment further on Justice O'Connor's dissent, with which I largely agree.

In his opinion for the Court, Justice Kennedy did not respond to Justice O'Connor's arguments against the Smith decision, holding that "[w]hen the political branches of the Government act against the background of a judicial interpretation of the Constitution already issued, it must be understood that in later cases and controversies the Court will treat its precedents with the respect due them under settled principles."(18) In other words, RFRA was unconstitutional because it contradicted the Court, and there was no call to consider whether the Court might have gotten it wrong. …

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