City of Boerne and RFRA

City of Boerne (casebook p. 1214)

Just a brief concluding note on RFRA and RLUIPA.

RFRA originally applied to both federal and state and local laws burdening religious liberty. But in the City of Boerne case the Court declared RFRA unconstitutional as applied to state and local laws restricting religious liberty.

The issue is really a Con Law I issue about enumerated national powers and state reserved powers under the 10th Amendment. The issue is where does Congress get the power to impose RFRA’s protection of religious liberty on the states?

There is no enumerated power to forbid generally applicable state laws from being applied to burden religious conduct.

Section 5 of the 14th Amendment gives Congress the power “to enforce, by appropriate legislation, the provisions of this article.” So, the only possible power of Congress to impose RFRA on the states is the power to ”enforce” the Free Exercise Clause as incorporated by the Due Process Clause of the 14th Amendment.

But is RFRA an attempt to enforce Free Exercise as defined by Smith? Or is it an attempt to overrule by statute the Court’s holding in Smith?

Justice Kennedy said that “Congress does not enforce a constitutional right by changing what that right is…It has been given the power ‘to enforce’ not the power to determine what constitutes a constitutional violation.” p. 1217

So, the Court holds that RFRA is unconstitutional as applied to state and local government because the scope of RFRA is so sweeping as to intrude “into the States' traditional prerogatives and general authority to regulate for the health and safety of their citizens.” P. 1220

The Court is also concerned about separation of powers--specifically its own Article III power to "say what the law is." The Court views RFRA not so much as an attempt to enforce the incorporated Free Exercise Clause, but rather as an attempt to overrule Smith by statute.                                            

Of course, Congress does have power to regulate the national government; thus, RFRA remains good law (as in Hobby Lobby) when national law restricts religious liberty.

RLUIPA is within Congress’s power to regulate state and local government because it is based, not just upon Section 5 of the 14th Amendment, but also the spending power and the commerce power of Congress. RLUIPA only covers prisons and land use regulations. It covers prisons that receive federal funding, and land use regulations of real property which substantially effect interstate commerce.

Here is the Text of the 14th Amendment and in particular, section 5 of the 14th Amendment.

Amendment XIV

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 5.

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.