Free Exercise cases and jurisprudence and City of Boerne v. flores and 14th Amendment and fourteenth amendment

This case is going to take me more than one essay to present. It isn't that I can't state the "holding" of the case ("By a 6-3 margin, the US Supreme Court invalidated the Religious Freedom Restoration Act of 1993 and held that, in passing the Act, Congress had exceeded its power to pass legislation under Sec. 5 of the 14th Amendment"). It isn't also that I don't know how to state how Boerne "fits in" with the Court's FE jurisprudence ("After the Court confined the Sherbert "compelling interest test" to the employment arena in Employment Division v. Smith in 1990, Congress passed the RFRA to overrule Smith, prompting the Court not simply to invalidate RFRA in City of Boerne but to give its "take" on the meaning of Sec. 5 of the 14th Amendment"). My uneasiness arises because I get the overwhelming sense when I read City of Boerne not only that the Court is making up its FE jurisprudence as it goes along but that it has probably misread the sources that are the basis of its evolving interpretation.

Let me clarify. I don't really mind that the Court's FE jurisprudence "evolves." I am not one of those who believes that sacred words (in Constitution or Bible) become frozen in their meaning, even if they were chiseled on stone at one time. Sacred texts have a suppleness to them, a sort of plasticity that enables them to convince subsequent generations that the promises to the Fathers still apply to the Sons/Daughters. Thus, the discernment process concerning how the text applies to today will often lead not only to divergent approaches but to a jurisprudence that is "messy." One of the problems with law, however, is that Justices and lawyers feel the need, when making their arguments, to do one of two things: (1) try to show how all the past precedents relating to the current issue are "consistent" with the approach they are taking in the case and (2) to explain how the "history" of the law's enactment leads ineluctably to the conclusion that interests them. Because lawyers have been nurtured in an adversarial context, they tend to look at history as a place where they can get more ordnance, rather than a place simply for establishing understanding. This means that legal opinions are often the last place you should look for careful historical analysis. At times the most that can be said for them is that they give you a good bibliography to begin your own study of the issue. But at times they just deepen the confusion, plunging you and everyone who reads them into an inky abyss of uncertainty. I had that feeling as I read the City of Boerne opinion.

A Few Facts and the Issue of the Case

The background facts are stated in any number of places. St. Peter's Church, a Spanish mission-style Church, was built in 1923. The congregation, however, outgrew the size of the sanctuary and received permission from the Archbishop of San Antonio to enlarge the building. However, in the meantime the City of Boerne had established a Landmarks Commission which adopted rules prohibiting alteration of facades of buildings in a historic area. Of course, St. Peter's Church was one of the affected buildings. After unsuccessful negotiations, the Archbishop brought suit against the City, claiming that under the RFRA the Church should be able to expand its facility unless the City had a "compelling interest" in prohibiting it. As a harbinger of difficult and complex legal issues to come, the US District Court declared that the RFRA was an unconstitutional exercise of Congress's legislative power while the Court of Appeals reversed on this point. Thus, the table was set for the US Supreme Court not so much to deal with the details of the City of Boerne's regulations or the fairness of the process, but with the nature of Congress's lawmaking abilities under the 14th Amendment.

So, all of a sudden, we are in very deep water. In order, therefore, to try to understand where the Court will go in this case, we must be able to separate the following issues and answer the following questions:

(1) The way that the Religious Freedom Restoration Act of 1993 attempted to overrule Smith. One of the issues I cannot solve here is whether Congress felt sufficiently warned that by passing this law there was a good chance the Supreme Court would strike it down on 14th Amendment grounds or whether this point was not particularly clear to lawmakers between 1990-93.

(2) How the separation of powers argument functioned in the case. That is, Petitioners would make the case that by passing this law Congress had violated basic separation of powers doctrine. Did this argument resonate?

(3) The heart of the Court's argument concerns the early history of the 14th Amendment and its meaning. How does the Court tell that story? Does the Court tell it well, clearly or convincingly?

(4) How does the Court explain the Civil Rights Cases (1883) and the precedential value of this decision? What were those cases about, what did the Court hold there, and how did the Court argue its point?

(5) How was the 14th Amendment, and Congressional power to enact statutes, interpreted in the 1960s, especially the Morgan case? And, an issue that runs through 3-5, what is meant by Congress's remedial power in the 14th Amendment, and how is that to be separated, if at all, from its "substantive" power?

(6) Where does this case "leave us" on the issue of interpreting the Free Exercise of Religion clause of the 1st Amendment?

In the following few essays, I will address these issues. I make no claim to completeness but I hope to clarify some important issues.

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