                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE FIFTH CIRCUIT



                              No. 95-50306



P.F. FLORES, ARCHBISHOP OF
SAN ANTONIO,
                                                 Plaintiff-Appellant,

and

UNITED STATES OF AMERICA,

                                                 Intervenor-Plaintiff-
                                                 Appellant,

                                   versus

CITY OF BOERNE, TEXAS,

                                                 Defendant-Appellee.




            Appeals from the United States District Court
                  for the Western District of Texas

                            January 23, 1996

Before    HIGGINBOTHAM,   EMILIO   M.   GARZA,    and   BENAVIDES,   Circuit

Judges.




HIGGINBOTHAM, Circuit Judge:

      The City of Boerne, Texas, contends that Congress lacks the

authority to enact the Religious Freedom and Restoration Act of

1993, Pub. L. No. 103-141, 42 U.S.C. § 2000bb et seq.         The district

court agreed.    We are persuaded that the act is constitutional and

reverse.
                                       I.

     The Saint Peter Catholic Church in Boerne, Texas, was built in

1923.     In 1991, the Archbishop of San Antonio, Bishop Flores,

authorized the parish to build a larger facility.

     Some months later, the City of Boerne enacted Ordinance 91-05

in order to "protect, enhance and perpetuate selected historic

landmarks" and to "safeguard the City's historic and cultural

heritage."     The Ordinance authorized the City’s Historic Landmark

Commission to prepare a preservation plan with proposed Historic

Districts.     The City Council adopted the Landmark Commission's

proposal for designating a Historic District.           Saint Peter was not

designated as a historic landmark but at least part of the church

was included within the District.           According to Archbishop Flores,

the Historic District included only its facade, but the City

considered the entire structure to be within the District.

     In 1993, the church applied for a building permit from the

City to enlarge the church building, urging that its proposed

addition   did    not   affect   the   church's    facade.    The   Landmark

Commission denied the permit application, and the City Council, in

turn, denied the church's appeal.              The church filed this suit

seeking    a     judicial   declaration        that   the    Ordinance   was

unconstitutional and violated the Religious Freedom Restoration

Act, 42 U.S.C. § 2000bb et seq., injunctive relief, and attorneys'

fees.




                                       2
       The City’s first mention of constitutionality came in a

Proposed Joint Pre-trial Order asserting that "any interpretation

or application of the Religious Freedom Restoration Act of 1993

which imposes a statutory revision in the applicable standards of

First Amendment jurisprudence is not valid . . . taking into

account the operative provisions of Article III, the Free Exercise

Clause   of    the    First   Amendment,         Section     5    of   the   Fourteenth

Amendment, and the Tenth Amendment."                Over the church’s objection,

the district court granted the City leave to amend its answer to

plead the unconstitutionality of RFRA as asserted in the pre-trial

order.

       The district court held that RFRA was facially invalid because

it infringed on the authority of the judiciary "to say what the law

is."    Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).                         The

district court reasoned that "Congress specifically sought to

overturn Supreme Court precedent as found in Employment Division v.

Smith through the passage of RFRA."                     It was also persuaded that

Congress      had    not   invoked    its       power    under    Section    5    of   the

Fourteenth      Amendment     in     enacting      RFRA.         The   district    court

certified its order for interlocutory appeal to this court pursuant

to 28 U.S.C. § 1292(b) and entered a partial final judgment under

Fed. R. Civ. P. 54(b).         The United States and the church appealed

and petitioned for leave to appeal.                We have jurisdiction.



                                         II.

                                            A.


                                            3
       Employment Division, Dep't of Human Resources v. Smith, 494

U.S. 872 (1990), held that the First Amendment's Free Exercise

Clause does not bar application of a facially neutral, generally

applicable law to religiously motivated conduct.            Id. at 881. Five

months after Smith, Congress conducted its first hearing on a

legislative response, the Religious Freedom Restoration Act of

1990.    See,   Hearing Before the Subcomm. on Civil and Constitution

Rights of the House Comm. on the Judiciary, 101st Cong., 2d Sess.

(1990) (hereinafter "1990 House Hearing").            The 101st Congress did

not pass the bill, but it was reintroduced in the 102nd Congress,

S. 2969, 102nd Cong., 1st Sess. (1991); H.R. 2797, 102nd Cong., 1st

Sess. (1991), and again in the 103rd Congress.                S. 578, 103rd

Cong., 1st. Sess. (1993); H.R. 1308, 103rd Cong., 1st Sess. (1993).

                                     B.

       In enacting the Religious Freedom Restoration Act of 1993,

Congress mandated that "Government shall not substantially burden

a person's exercise of religion even if the burden results from a

rule of general applicability" unless the Government demonstrates

that    application   of   the   burden   "(1)   is   in   furtherance   of    a

compelling governmental interest; and (2) is the least restrictive

means of furthering that compelling governmental interest."                   42

U.S.C. § 2000bb-1(a),(b).        RFRA applies both to Federal and State

law, whether enacted before or after RFRA became effective.                   42

U.S.C. § 2000bb-3(a).

       Congress found that "governments should not substantially

burden religious exercise without compelling justification," and


                                      4
decried the Supreme Court's decision in Smith, asserting that it

"virtually eliminated the requirement that the government justify

burdens on religious exercise imposed by laws neutral toward

religion."      42 U.S.C. § 2000bb(a).     The Act’s stated purpose was

"to restore the compelling interest test as set forth in Sherbert

v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205

(1972) and to guarantee its application in all cases where free

exercise   of    religion   is   substantially   burdened."      42   U.S.C.

§ 2000bb(b)(1).



                                    III.

                                     A.

     Congress considered its constitutional authority to enact

legislation to overturn Smith.            See 1990 House Hearing at 51

(statement of Rev. John H. Buchanan, Jr.).             Scholars critical of

Smith found in Section 5 of the Fourteenth Amendment authority to

enact RFRA.     See id. at 51, 54 (statement of Rev. John H. Buchanan,

Jr.), 72-79 (letter from Douglas Laycock); Congressional Research

Service, The Religious Freedom Restoration Act and The Religious

Freedom Act:      A Legal Analysis 30-31 (1992) (prepared by David

Ackerman). Later hearings continued the study of Section 5 and the

support it would offer to such legislation.        See Religious Freedom

Restoration Act of 1991: Hearings Before the Subcomm. on Civil and

Constitutional Rights of the House Comm. on the Judiciary, 102nd

Cong., 2d Sess. 353-59 (1992) (statement of Douglas Laycock)

(hereinafter     "1992   House    Hearings");    The     Religious    Freedom


                                      5
Restoration Act: Hearing Before the Senate Comm. on the Judiciary,

102nd Cong., 2d Sess. 92-97 (1992) (statement of Douglas Laycock)

(hereinafter "1992 Senate Hearing").

     Some thoughtful scholars questioned the authority of Congress

under Section 5, at least as far as RFRA pushed it.        See, e.g.,

1992 House Hearings at 385-94 (statement of Ira Lupu); 1992 Senate

Hearing at 122-25 (statement of Bruce Fein).       Congress ultimately

believed that Section 5 of the Fourteenth Amendment granted it

sufficient authority to enact the bill:

     Pursuant to Section 5 of the Fourteenth Amendment and the
     Necessary and Proper Clause embodied in Article I,
     Section 8 of the Constitution, the legislative branch has
     been given the authority to provide statutory protection
     for a constitutional value when the Supreme Court has
     been unwilling to assert its authority.       The Supreme
     Court has repeatedly upheld such congressional action
     after declining to find a constitutional protection
     itself. However, limits to congressional authority do
     exist. Congress may not (1) create a statutory right
     prohibited by some other provision of the Constitution,
     (2) remove rights granted by the Constitution, or (3)
     create a right inconsistent with an objective of a
     constitutional provision. Because [RFRA] is well within
     these limits, the Committee believes that in passing the
     Religious Freedom Restoration Act, Congress appropriately
     creates a statutory right within the perimeters of its
     power.

H.R. Rep. No. 88, 103d Cong., 1st Sess. 9 (1993).          The Senate

report expressed similar views, noting that RFRA "falls squarely

within Congress' section 5 enforcement power."      S. Rep. 111, 103d

Cong., 1st Sess. 14 (1993), reprinted in 1993 U.S.C.C.A.N. 1892,

1903.

     When RFRA reached the Senate floor for debate, no Senator

questioned   Congress'   power   under   Section   5.    The   Senators

expressing a view on the issue were persuaded that Section 5

                                   6
provided ample authority.      See 139 Cong. Rec. S14469 (statement of

Sen. Grassley); 139 Cong. Rec. S14470 (statement of Sen. Hatch).

                                   B.

     That the Executive and Legislative branches also have both the

right and duty to interpret the constitution casts no shadows upon

Justice Marshall’s claim of ultimate authority to decide.                        The

judicial trump card can be played only in a case or controversy.

The power to decide the law is an incident of judicial power to

decide cases.   There is no more.         A power of review not rooted in

a case or controversy would impermissibly draw to Article III the

interpretive role of the Executive and Legislative branches of

government.     So   it   is   that       the   familiar         recitation    that

Congressional   legislation    comes      to    us    with   a    presumption    of

constitutionality is a steely realism and not merely a protocol of

manners or an empty formalism.

     No party here contends and we express no opinion whether other

delegations of legislative power, such as the Commerce Power,

provide constitutional authority for the passage of RFRA.                     RFRA's

legislative history more than satisfies our requirement that "we be

able to discern some legislative purpose or factual predicate that

supports the exercise of [Congress' Section 5] power." E.E.O.C. v.

Wyoming, 460 U.S. 226, 243 n.18 (1983).              There is no question that

Congress drew on its power under Section 5 in enacting RFRA.                    The

district court’s doubt that it did is without basis.                 The issue is

whether that authority was there.

                                   IV.


                                      7
     The City contends that RFRA is unconstitutional for four

related reasons. First, Congress lacked the authority to enact the

statute under Section 5 of the Fourteenth Amendment.                        Second, the

statute violates the separation of powers by returning to the

courts    the    task   of   accommodating           general   laws    and    religious

practices after Smith denied the judiciary's competence to do so.

Third,    RFRA    violates    the    Establishment         Clause      of    the     First

Amendment.       Fourth, it violates the Tenth Amendment.                    We turn to

these contentions.

                                           A.

     Section 5 of the Fourteenth Amendment provides that "Congress

shall have power to enforce, by appropriate legislation, the

provisions of this article."           U.S. Const. amend. XIV, § 5.                    The

Thirteenth, Fourteenth, and Fifteenth Amendments "were specifically

designed as an expansion of federal power and an intrusion on state

sovereignty."       City of Rome v. United States, 446 U.S. 156, 179

(1980).

     The Supreme Court first considered the meaning of Section 5 in

Ex   parte      Virginia,    100    U.S.       339    (1879).         It    upheld     the

constitutionality of an act prohibiting the disqualification of

grand or petit jurors on account of race.                  Id. at 345, 346.            The

Court declined to read narrowly the power granted by Section 5:

     Whatever legislation is appropriate, that is, adapted to carry
     out the objects the amendments have in view, whatever tends to
     enforce submission to the prohibitions they contain, and to
     secure to all persons the enjoyment of perfect equality of
     civil rights and the equal protection of the laws against
     State denial or invasion, if not prohibited, is brought within
     the domain of congressional power.


                                           8
Id. at 345-46.

      The civil rights legislation of the 1960's brought to court

again questions regarding the power of Congress under the Civil

Rights Amendments.      In Katzenbach v. Morgan, 384 U.S. 641, 648

(1966), the Court rejected the argument that under Section 5

Congress   could   only    prohibit       acts   that     would   violate   the

substantive provisions of the Fourteenth Amendment.               Referring to

M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819), the

Court held that the inquiry into what is "appropriate legislation"

under Section 5 is whether the statute "may be regarded as an

enactment to enforce [the Fourteenth Amendment], whether it is

'plainly adapted to that end' and whether it is not prohibited by

but   is   consistent     with   'the      letter       and   spirit   of   the

constitution.'"    Id. at 651.

      Six years later, the Court reaffirmed this reading of Section

5.    In Oregon v. Mitchell, 400 U.S. 112, 118 (1970), the Court

upheld congressional prohibitions of literacy tests in state and

national elections.     Mitchell did strike down the guarantee of the

right of 18-year-olds to vote in state elections, 400 U.S. at 118,

but that decision rested on the exclusive role of states in

conducting their elections. Justice Black explained that Congress'

enforcement power was broad but not unlimited:

           As broad as the congressional enforcement power is,
      it is not unlimited. Specifically, there are at least
      three limitations upon Congress' power to enforce the
      guarantees of the Civil War Amendments. First, Congress
      may not by legislation repeal other provisions of the
      Constitution. Second, the power granted to Congress was
      not intended to strip the States of their power to govern
      themselves or to convert our national government of

                                      9
      enumerated   powers  into   a   central  government   of
      unrestrained authority over every inch of the whole
      Nation.    Third, Congress may only "enforce" the
      provisions of the amendments and may do so only by
      "appropriate legislation." Congress has no power under
      the enforcement sections to undercut the amendments'
      guarantees of personal equality and freedom from
      discrimination, or to undermine those protections of the
      Bill of Rights which we have held the Fourteenth
      Amendment made applicable to the States.

Id. at 128-29 (opinion of Black, J.).

      In the years since Mitchell, the Court has adhered to these

generally stated principles.      In Fitzpatrick v. Bitzer, 427 U.S.

445 (1976), the Court upheld, against a federalism-based Eleventh

Amendment challenge, the application of Title VII, 42 U.S.C.

§ 2000e et seq., to the States.        The Court explained that "[w]hen

Congress   acts   pursuant   to   §    5,   not   only   is   it    exercising

legislative authority that is plenary within the terms of the

constitutional grant, it is exercising that authority under one

section of a constitutional amendment whose other sections by their

own terms embody limitations on state authority."                  Id. at 456.

Similarly, in Fullilove v. Klutznick, 448 U.S. 448 (1980), a

plurality of the Court expressed the view that Section 5 provided

authority to remedy the effects of past discrimination, even though

the Fourteenth Amendment only prohibited purposeful discrimination.

See id. at 478 (opinion of Burger, C.J., joined by White and

Powell, JJ.); id. at 500-02 (Powell, J., concurring).              The Court in

Adarand Constructors, Inc. v. Pena, 115 S.Ct. 2097, 2117 (1995), in

holding that federal affirmative action programs are subject to

strict scrutiny, did not question congressional power under Section

5.   Id. at 2114.

                                      10
         The Thirteenth, Fifteenth, Eighteenth, Twenty-third, Twenty-

fourth,     and   Twenty-six    Amendments   contain    parallel   grants   of

enforcement power to Congress. The Court has read those provisions

in   a    similar    fashion.     For   example,   in   South   Carolina    v.

Katzenbach, 383 U.S. 301, 326 (1966), the Court upheld provisions

of the Voting Rights Act of 1965.         Discussing Congress' power under

Section 2 of the Fifteenth Amendment--which contains virtually

identical language to Section 5 of the Fourteenth--the Court wrote

that "[t]he basic test to be applied in a case involving § 2 of the

Fifteenth Amendment is the same as in all cases concerning the

express powers of Congress with relation to the reserved powers of

the States."      Id. at 326. Quoting Chief Justice Marshall's opinion

in M'Culloch, the Court explained:

         Let the end be legitimate, let it be within the scope of
         the constitution, and all means which are appropriate,
         which are plainly adapted to that end, which are not
         prohibited, but consist with letter and spirit of the
         constitution, are constitutional.

Id. at 326 (quoting M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316,

421 (1819)).        Similarly, in James Everard's Breweries v. Day, 265

U.S. 545, 560 (1924), the Court, addressing the scope of Congress'

power under Section 2 of the Eighteenth Amendment, held that

Congress "may adopt any eligible and appropriate means to make [the

Eighteenth Amendment's] prohibition effective."

         This continued adherence to the principle that Congress may

explicate textually located rights and obligations pursuant to

Section 5 persuades us that the three-part test from Morgan remains

the benchmark.


                                        11
                                            1.

       The   first    inquiry      under    Morgan      is   whether    RFRA    "may    be

regarded" as an enactment to enforce the Fourteenth Amendment.                          It

has been long established that the Due Process Clause of the

Fourteenth Amendment incorporates the Free Exercise Clause of the

First Amendment.         Cantwell v. Connecticut, 310 U.S. 296, 303

(1940).

       We disagree with the City's argument that Congress' Section 5

authority is more limited when it acts to enforce provisions other

than the Equal Protection Clause.                       Section 5 does not place

conditions     on    Congress'      authority       to    enforce      the   amendment.

Congress has the power to enforce "the provisions of this article,"

not just the Equal Protection Clause.                   United States v. Price, 383

U.S. 787, 789 & n.2 (1966) (noting Section 5 empowers Congress to

enforce "every right guaranteed by the Due Process Clause of the

Fourteenth Amendment"); see also Cong. Globe, 42d Cong., 1st Sess.

App. at 83 (1871) ("The fourteenth amendment closes with the words,

'the    Congress      shall    have      power     to    enforce,      by    appropriate

legislation, the provisions of this article'--the whole of it, sir;

all    the   provisions       of   the     article;      every    section      of   it.")

(statement of Rep. Bingham).               We reject the notion that there is

any    relevant      hierarchy      of     constitutional        rights      within    the

Fourteenth Amendment.          Cf. Caplin & Drysdale, Chartered v. United

States, 491 U.S. 617, 628 (1989).                At base, this argument is little




                                            12
more than an invitation to revisit the incorporation of the First

Amendment, an invitation addressed to the wrong court.

     We think it beyond peradventure that Congress enacted RFRA to

enforce the religious liberty protected from State infringement by

the Due Process Clause.        RFRA expressly declares its purpose "to

restore the compelling interest test . . . and guarantee its

application    in    all   cases   where    free   exercise   of   religion   is

substantially burdened" and "to provide a claim or defense to

persons whose religious exercise is substantially burdened by

government."        42 U.S.C. § 2000bb(b).          The Act itself defines

"exercise of religion" as that under the First Amendment.               See 42

U.S.C. § 2000bb-2(4).

     RFRA's legislative history leaves little room for doubt that

Congress intended "to enforce the right guaranteed by the free

exercise clause of the first amendment."             S. Rep. 111 at 14 n.43,

reprinted in 1993 U.S.C.C.A.N. at 1904. Witnesses at congressional

hearings spoke eloquently of the need for legislation to defend

individuals,    particularly       those    from   minority   religions,   from

generally applicable laws that burden the exercise of religion.

See, e.g., 1992 House Hearings at 157-59 (statement of Edward

Gaffney, Jr.); 1992 Senate Hearing at 5-6 (statement of William

Nouyi Yang), 37-39 (statement of Dallin Oaks).            Indeed, the Senate

Judiciary Committee found the need for legislation to restore the

pre-Smith compelling interest test in order "to assure that all

Americans are free to follow their faiths free from governmental




                                       13
interference."   S. Rep. 111 at 8, reprinted in 1993 U.S.C.C.A.N. at

1897-98.



                                 2.

     The second inquiry under Morgan is whether RFRA is "plainly

adapted to that end."     Although Congress' power to enforce the

Amendment is not confined to "abrogating only those state laws that

the judicial branch was prepared to adjudge unconstitutional,"

Morgan, 384 U.S. at 648-49, Section 5 does not permit Congress to

rewrite the scope of the Amendment's provisions out of whole cloth.

Rather, Congress' power under Section 5 is remedial.      Congress'

constitutional power to legislate pursuant to Section 5 is tied to

Congress' superior ability to find and redress nascent or disguised

violations of the Amendment.     In short, "Congress may act only

where a violation lurks."     E.E.O.C. v. Wyoming, 460 U.S. at 260

(Burger, C.J., dissenting).

     The United States offers three remedial justifications for

RFRA: 1) RFRA deters governmental violations of the Free Exercise

Clause; 2) RFRA prohibits laws that have the effect of impeding

religious exercise; and, 3) RFRA protects the free exercise rights

of adherents of minority religions.    We address each in turn.

     The United States urges that RFRA is an effective means of

prohibiting the unconstitutional targeting of religion through

facially neutral laws.    According to this view of RFRA, Smith's

requirement that individuals show that a law is not facially

neutral or generally applicable has not been an effective means of


                                 14
rooting out laws hostile to a religion in particular or to religion

in general. RFRA responds by requiring all laws that substantially

burden the exercise of religion to pass the compelling interest

test, a test well-suited to separating well-intentioned statutes

from invidious ones.   Cf. City of Richmond v. J.A. Croson Co., 488

U.S. 469, 493 (1989) (O'Connor, J.) (noting that purpose of strict

scrutiny is to "smoke out" illegitimate uses of race).

     Congress could have reasonably concluded that Smith's focus on

facial neutrality and general applicability has been ineffective in

identifying laws motivated by antagonism to a religion or to

religion in general.   As one witness testified before the Senate

Judiciary Committee, "formally neutral, generally applicable laws

have repeatedly been the instruments of religious persecution, even

in America." 1992 Senate Hearing at 71 (statement of Douglas

Laycock).   Moreover, Congress found that "[a]fter Smith, claimants

will be forced to convince courts that an inappropriate legislative

motive created statutes and regulations.      However, legislative

motive often cannot be determined and courts have been reluctant to

impute bad motives to legislators."      H.R. Rep. 88 at 6.   These

considerations, analogous to those underlying the Voting Rights Act

Amendments of 1982, Pub. L. No. 97-205, § 3, 96 Stat. 131, 134,

convince us that RFRA serves the remedial goal of identifying

budding or disguised constitutional violations that would otherwise

survive judicial scrutiny under Smith.

     In a similar vein, the United States argues that even if the

Constitution only prohibits governmental action taken with the


                                 15
intent of interfering with religious exercise, Congress may go

farther, as it did with RFRA, and prohibit conduct that has the

effect of burdening the exercise of religion.                  According to this

view of RFRA, applying the compelling interest test to all laws,

whether   facially      neutral     or   not,    that    have    the   effect     of

substantially burdening the exercise of religion is a prophylactic

measure designed to ensure that government may not discriminate

against a particular religion or religion in general.                        It is

claimed to be an effective means of identifying both mature and

sprouting constitutional violations, a prophylactic measure that

prohibits some laws whose effect upon the free exercise of religion

is so substantial that RFRA is fairly said to regulate incipient

constitutional violations.

     In cases involving racial discrimination, the Court has held

that Congress may prohibit laws with a racially discriminatory

effect, as   it   did    in   the    Voting     Rights   Act    of   1965,   as   an

appropriate method of promoting the Amendment's purpose, even if

the Constitution only prohibits laws with a racially discriminatory

intent.   City of Rome, 446 U.S. at 177.           Similarly, Congress could

reasonably conclude that prohibiting laws that have the effect of

substantially burdening religion promotes the free exercise of

religion.    Congress heard much testimony regarding the severe

burdens that facially neutral laws can impose on an individual's

exercise of his religious beliefs.            See, e.g., 1992 House Hearings

at 157-59 (statement of Edward Gaffney, Jr.) (discussing effect of

Smith on various religious exercise).


                                         16
       A robust application of the compelling interest test may be

uneven in exempting religious practices from statutes of general

applicability and push courts into either an uncomfortable judging

of the credibility of claims that practices are religious exercises

or leaving each person a non-regulatable island unto themselves,

arguably concerns behind the pre-Smith timidity of its use.                       The

concerns are large and, for some scholars, they are a compelling

argument against RFRA.         Christopher L. Eisgruber & Lawrence G.

Sager,     Why     the     Religious     Freedom           Restoration     Act     is

Unconstitutional, 69 N.Y.U. L. Rev. 437, 452 (1994). But this begs

the    question    of    congressional      power.         That    some   generally

applicable laws must yield their unwitting grasp of religious

practices is the price Congress has chosen to pay to achieve its

desired level of accommodation.              "It was for Congress, as the

branch that made this judgment, to assess and weigh the various

conflicting considerations."           Morgan, 384 U.S. at 653.                "It is

enough that we be able to perceive a basis upon which the Congress

might resolve the conflict as it did."               Id.

       Finally, the United States claims that RFRA serves to protect

religious minorities, thereby promoting the goals of both the Due

Process Clause and the Equal Protection Clause.                   According to this

view     of      RFRA,    adherents      of     minority           religions      are

disproportionately affected by facially neutral laws.                     Congress

heard testimony regarding the effects of Smith on members of the

Hmong, Jewish, Mormon, and Amish faiths.               See 1992 Senate Hearing

at 30-40; 1992 House Hearings at 104, 107-08, 406-09.                      Congress


                                       17
could reasonably conclude that more exacting scrutiny of facially

neutral legislation that burdens a religious practice is needed to

protect adherents of minority religions.                  See S. Rep. 111 at 8,

reprinted in 1993 U.S.C.C.A.N. at 1897.

     Relatedly, Congress could reasonably conclude that seeking

religious exemptions in a piecemeal fashion through the political

processes, particularly at the state or local governmental level,

would   place    minority     religions       at   a   disadvantage.       See    The

Federalist No. 10 (James Madison). Smith acknowledged that leaving

accommodation to the political processes risked discriminatory

treatment    but     viewed    it   as   an    "unavoidable       consequence      of

democratic government."        494 U.S. at 890.         Congress considered the

effect the Smith decision would have on minority religions seeking

accommodations through the political process and concluded that

"State and local legislative bodies cannot be relied upon to craft

exceptions from laws of general application to protect the ability

of the religious minorities to practice their faiths."                 S. Rep. 111

at 8, reprinted in 1993 U.S.C.C.A.N. at 1897; see also 1992 House

Hearings at 326 (statement of Douglas Laycock).

     These justifications fit within the remedial power of Congress

under Section 5.       To our eyes, Congress considered the need for

"appropriate       legislation"     to   enforce       the    provisions   of     the

Fourteenth      Amendment     and   responded      with      legislation   that    is

"plainly adapted" to that end.

                                         3.




                                         18
     The third inquiry under Morgan is whether RFRA is consistent

"with the letter and spirit of the constitution."                This inquiry

requires us to determine whether RFRA violates any other provision

of the Constitution.          Congress's power to remedy constitutional

wrongs is a one-way street.               Congress may not violate other

constitutional provisions while enforcing those of the Fourteenth

Amendment.      Morgan, 384 U.S. at 656.            The City claims that RFRA

violates three Constitutional provisions:               1) the separation of

powers; 2) the Establishment Clause; and 3) the Tenth Amendment.

     The City treats these arguments as independent of its Section

5 argument:     Even if Section 5 authorizes Congress to enact RFRA,

it is unconstitutional for these additional reasons.                 However, as

Morgan makes clear, Congress has no power under Section 5 to

violate other individual rights.                Stated another way, if RFRA

violates other constitutional provisions, it exceeds Congress'

Section 5 authority.          We will address each separately.

                                         B.

     The district court agreed with the City that RFRA violates the

separation of powers by displacing the authority of the judiciary,

established by Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177

(1803), "to say what the law is."               RFRA accomplishes this goal,

according to the City, by reversing Smith and restoring the pre-

Smith judicial standard for evaluating free exercise claims.                    In

effect,   Congress      has    created   a    new   constitutional    right    and

achieved a “substantive expansion of First Amendment doctrine.” In

short,    the    City    describes       RFRA    as   nothing   less    than     a


                                         19
constitutional coup d'etat, declaring that "[t]he new order under

RFRA     would   overrule     Marbury    and     craft     a    new    standard     of

constitutional responsibility."           The United States responds that

RFRA "is simply a statute that provides legislative protection for

a   constitutional    right    over     and    above     that    provided    by    the

Constitution."

       The response that Congress has created a statutory right is

facile and ultimately incomplete.             RFRA creates a statutory right

to be sure.      The origins and framing of that right, however, are

drawn from judicial decisions construing the Constitution. We will

not pretend that RFRA is anything but a direct response to the

Supreme Court's decision in Smith.              Indeed, Congress' announced

purpose was "to 'turn the clock back' to the day before Smith was

decided."    H.R. Rep. 88 at 15 (statement of Rep. Hyde).                  Moreover,

RFRA speaks in terms familiar to constitutional adjudication.                       To

pass muster under RFRA, applicable laws must further a "compelling

governmental interest" and be the "least restrictive means" of

furthering that interest.        This is a statutory rule, but it is a

rule mandating a process rejected by the Court in Smith.

       RFRA is also, in a sense, an assignment by Congress of a

higher value to free-exercise-secured freedoms than the value

assigned by the courts--that is, strict scrutiny versus a form of

intermediate      scrutiny.       This        view     includes       an   image    of

congressional second-guessing of the courts.                    But that sense is

false.     Congress by RFRA is demanding ad hoc review of laws of

general applicability that substantially burden the free exercise


                                        20
of   religion.    This   is   functionally   a   regulation    of   nascent

violations of the Free Exercise Clause, at least so long as the

statutory trigger of substantial effect is given full force. It is

true that the Court found that the Free Exercise Clause did not

require the Court to accommodate laws of general applicability not

aimed at a religious practice and that RFRA demands that the Court

engage in an exercise that the Court has eschewed.            Nonetheless,

whether the courts must obey RFRA's command to do so turns only on

the independent issue of the power of Congress under Section 5.

       As we have otherwise explained, this is indistinguishable in

any relevant way from the congressional command to examine election

practices adversely impacting the voting strength of protected

minorities, even though there was no purpose to discriminate and,

hence, no violation of the Equal Protection Clause.             Dispensing

with the constitutionally rooted requirement that discrimination be

purposeful is an extraordinary exercise of power.        The insistence

in Washington v. Davis, 426 U.S. 229, 239 (1976), upon proof of

discriminatory purpose was a decision about the judicial role.           At

issue was whether the accent should be upon federal courts as

arbiters of social justice or as a more passive arbiter of cases or

controversies.    The role of purpose becomes clear in the debate

over    its   wisdom.     Compare     Laurence    H.   Tribe,       American

Constitutional Law § 16-20 at 1515 (2d ed. 1988) (urging that anti-

subjugation should be test rather than purpose) with Patrick E.

Higginbotham, Laurence Tribe’s Visionary Theories of the Equal

Protection Clause, 4 Benchmark 125, 131-34(1990) (rejecting Tribe’s


                                    21
view).   The merits of that debate aside, it was common ground that

dispensing   with   the   requirement     of   Washington    v.   Davis   that

violations of the Equal Protection Clause must be purposeful works

a large relocation of power.      This is not to suggest that RFRA's

dispensing with purpose is of a lesser magnitude.           We doubt that it

is.   Rather, the point is that despite its large role, dispensing

with purpose remains nonetheless an exercise of Congress' remedial

power, the power to reach conduct that only threatens the free

exercise of religion.

      Undeniably, RFRA's origins and codification of terms drawn

directly from constitutional decisions make it unusual and are

characteristic of what is termed a "foundational statute."                The

critical question is whether they make RFRA unconstitutional.              We

think not.

      The City's argument rests on the mistaken assumption that

Smith describes not only how little the Government must accommodate

religion but also how much it may accommodate it.            Stated another

way, the City must contend that Smith held not only that facially

neutral laws having the incidental effect of burdening religion do

not violate the Free Exercise Clause but also that exemptions to

such laws do violate either that clause or the Establishment

Clause. Only if the latter proposition is true does RFRA usurp the

judiciary's duty to interpret the Constitution.

      This view of Smith has its supporters, see Christopher L.

Eisgruber    &   Lawrence   G.   Sager,    Why   the   Religious     Freedom

Restoration Act is Unconstitutional, 69 N.Y.U. L. Rev. 437, 450


                                    22
(1994).     Prior to Smith, the Court recognized that legislatures

were   free     to   enact   religious     exemptions     more    expansive   and

accommodating than that required by the Free Exercise Clause.                 See

Zorach v. Clauson, 343 U.S. 306 (1952); Corporation of Presiding

Bishop v. Amos, 483 U.S. 327, 334 (1987).              Even when the Court held

that    a      particular      religious      accommodation       violated    the

Establishment Clause, Justice Brennan cautioned that "we in no way

suggest that all benefits conferred exclusively upon religious

groups or upon individuals on account of their religious beliefs

are forbidden by the Establishment Clause unless they are mandated

by the Free Exercise Clause."           Texas Monthly, Inc. v. Bullock, 489

U.S. 1, 18 n.8 (1989) (Brennan, J.).

       Smith, however, did not change this rule.                To the contrary,

the Court contemplated "leaving accommodation to the political

process:"

            Values that are protected against government
       interference through enshrinement in the Bill of Rights
       are not thereby banished from the political process.
       Just as a society that believes in the negative
       protection accorded to the press by the First Amendment
       is likely to enact laws that affirmatively foster the
       dissemination of the printed word, so also a society that
       believes in the negative protection accorded to religious
       belief can be expected to be solicitous of that value in
       its legislation as well.

494 U.S. at 890.         The Court noted with approval that several

States, unlike Oregon, had exempted the sacramental use of peyote

from their drug laws.        Id.

       Since    Smith,   the    Court      has     reaffirmed    that   religious

accommodations are constitutional.               "Our cases leave no doubt that

in commanding neutrality the Religion Clauses do not require the

                                         23
government to be oblivious to impositions that legitimate exercises

of state power may place on religious belief and practice."                  Board

of Educ. of Kiryas Joel v. Grumet, 114 S.Ct. 2481, 2492 (1994).

Rather, "'government may (and sometime must) accommodate religious

practices . . . .'"        Id. (quoting Hobbie v. Unemployment Appeals

Comm'n of Fla., 480 U.S. 136, 144 (1987)).

     The City's separation of powers argument challenges this well-

established rule.       Every legislatively mandated accommodation of

religion reflects a legislature's judgment regarding the free

exercise    of     religion.    RFRA    does   not   usurp   the    judiciary's

authority to say what the law is any more than did the Voting

Rights Act of 1964 when it prohibited literacy tests after Lassiter

v. Northampton County Bd. of Elections, 360 U.S. 45 (1959), had

upheld     their    constitutionality.         Nor   does    RFRA    usurp     the

judiciary's interpretive powers any more than did the American

Indian Religious Freedom Act Amendments of 1994, Pub. L. No. 103-

344, 108 Stat. 3125, which overturns the particular result of Smith

by preventing States from prohibiting Native Americans from using

peyote as part of their religious practices.                   See 42 U.S.C.

§ 1996a(b)(1).

     That     RFRA     speaks   in     broad   generalities        where     other

legislatively mandated religious exemptions, such those provided by

the American Indian Religious Freedom Act, address specific conduct

is of no moment.         Within the area of permissible legislative

accommodations of religion, Congress may paint with a broad or

narrow brush.       In either situation, Congress has "disagreed" with


                                       24
the judiciary regarding the scope of religious freedom and the Free

Exercise Clause.      In neither situation has Congress arrogated to

itself the unrestricted power to define the Constitution.

      In short, the judiciary's duty is to say what the law is, but

that duty is not exclusive. The district court's holding that RFRA

usurps the judiciary's power under Marbury v. Madison to interpret

the Constitution is incorrect.

      Nor are we persuaded by the City's argument that RFRA violates

the separation of powers because it restores a test rejected in

Smith as    beyond    the   judiciary's   competence     to   apply.    Smith

acknowledged that the legislative accommodation of religion "must

be preferred to a system . . . in which judges weigh the social

importance of all laws against the centrality of all religious

beliefs."    494 U.S. at 890.    However, the Court's rejection of the

compelling interest test did not rest on judicial inability to

apply the test. The compelling interest test is familiar to judges

both in the context of free exercise claims, see Smith, 494 U.S. at

900-01 (O'Connor, J., concurring in the judgment), and elsewhere.

See, e.g., Adarand, 115 S.Ct. at 2117 (subjecting all racial

classifications to strict scrutiny).

      Rather, the Court's rejection of the compelling interest test

in free exercise claims rested on the Court's aversion to applying

the test to facially neutral laws in the counter-majoritarian arena

of   constitutional    interpretation.       See   494    U.S.   at    888-889

(rejecting compelling interest test because it "would open the

prospect    of   constitutionally   required   religious       exemptions").


                                    25
Again, it is one thing to apply the compelling interest test drawn

from a statute where Congress can amend the underlying law if it

disagrees with the resulting balance; it is another when the only

response to the judiciary's application of the compelling interest

test is a constitutional amendment.

     We conclude that RFRA does not violate the separation of

powers.   Whether RFRA's requirement that judges determine whether

a particular law "substantially burdens" the exercise of religion

imposes   upon    the   judiciary   the   duty   of   inquiring   into   the

centrality of particular practices to a faith and whether that

duty, if it exists, poses constitutional difficulties is not

presented.       See Smith, 494 U.S. at 887 & n.4.            As we have

explained, the full meaning of "substantially burdens" must be

found in its application.     It is self-evident that the vigor of the

insistence that effects be substantial and the risks of error in

locating incipient violations of the Free Exercise Clause are

directly related.       An anemic application of “substantial effect”

pushes the limits of congressional power to remedy.

                                    C.

     Nor does RFRA mandate religious accommodations that violate

the Establishment Clause.      To the contrary, the act provides that

"[n]othing in this chapter shall be construed to affect, interpret,

or in any way address [the Establishment Clause]."                42 U.S.C.

§ 2000bb-4.      In short, RFRA by its own terms provides that the

accommodations mandated by RFRA may reach up to the limit permitted

by the Establishment Clause but no further.


                                    26
     The City responds that, even so, RFRA on its face violates the

Establishment Clause because it lacks a secular purpose and because

it has the primary effect of advancing religion.          See Lemon v.

Kurtzman,   403   U.S.   602   (1971).   We   disagree.   Its   remedial

justifications belie the City's contention that Congress acted with

a sectarian purpose.     Relatedly, "it is a permissible legislative

purpose to alleviate significant governmental interference" with

the exercise of religion.       Amos, 483 U.S. at 335.

     RFRA no more advances religion than any other legislatively

mandated accommodation of the exercise of religion.       In Amos, the

Court rejected the argument that an accommodation violates the

primary effects prong of the Lemon test simply by virtue of being

an accommodation. "A law is not unconstitutional simply because it

allows churches to advance religion, which is their very purpose.

For a law to have forbidden 'effects' under Lemon, it must be fair

to say that the government itself has advanced religion through its

own activities and influence."      Id. at 337 (emphasis in original).

RFRA's lifting of "substantial burdens" on the exercise of religion

does not amount to the Government coercing religious activity

through "its own activities and influence."

                                    D.

     Finally, the City urges that RFRA violates the Tenth Amendment

because the act limits the power of the States to legislate "in the

traditional areas of state sovereignty and prominence."         The City

mistakenly relies on the Court's decision last term in United

States v. Lopez, 115 S.Ct. 1624 (1995), which held that the Gun


                                    27
Free School Zones Act exceeded Congress' power under the Commerce

Clause.     Congress, however, enacted RFRA pursuant to its power

under Section 5 of the Fourteenth Amendment.                 Although the United

States urges that the Commerce Clause also supports Congress'

authority to enact RFRA, we have not reached that contention.

     The    Court    has   repeatedly        noted   that    "the   principles    of

federalism that constrain Congress' exercise of its Commerce Clause

powers are attenuated when Congress acts pursuant to its powers to

enforce the Civil War Amendments."              Gregory v. Ashcroft, 501 U.S.

452, 468 (1991).       On its face, RFRA does not intrude upon state

sovereignty any more than the myriad other federal statutes that

preempt state regulation.

     That said, we do not suggest that the Tenth Amendment plays no

role.     Gregory itself recognized that the Court "has never held

that the Amendment may be applied in complete disregard for a

State's constitutional          powers."       Id.     To    the    contrary,    "the

Fourteenth     Amendment        does   not     override      all    principles    of

federalism."       Id. at 469.     Indeed, the Court in Gregory refused to

construe a congressional act to reach state governmental functions

in the absence of a clear statement from Congress that it intended

to do so.    Id. at 470.        Such questions of RFRA's applicability to

particular areas of state regulation, however, are best left for

individual, case-by-case resolution.                  It is enough for us to

conclude    that    RFRA   on    its   face    does    not    violate   the     Tenth

Amendment.

                                        V.


                                        28
     We hold that Section 5 of the Fourteenth Amendment empowered

Congress to enact the Religious Freedom Restoration Act.        We

further hold that RFRA does not usurp the judiciary's power to

interpret the Constitution.   Accordingly, we REVERSE the order of

the district court holding the Religious Freedom Restoration Act

unconstitutional on its face and REMAND for further proceedings not

inconsistent with this opinion.




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