This significant federalism case (1997) had its origins in a long-standing dispute within the Supreme Court, and then between the Supreme Court and Congress, over the proper meaning of the Free Exercise Clause of the First Amendment. From Reynolds v. United States in 1878 through Braunfeld v. Brown in 1961, the Court held that the Free Exercise Clause did not require that religious nonconformists be exempted from otherwise valid secular regulations. But in 1963, Justice William Brennan, who had dissented strongly two years before in Braunfeld, wrote for the Court in Sherbert v. Verner. Here it was held that government could refuse an exemption to the law for a religious nonconformist only if a “compelling state interest” justified such a refusal.
In the years after Sherbert, the Court sometimes found a compelling state interest, and sometimes it did not. But in 1990, in Employment Division v. Smith, Justice Antonin Scalia wrote an opinion for the Court that appeared to turn Free Exercise jurisprudence back toward the pre-Sherbert orthodoxy. The political reaction to the Smith decision was immediate and intense. In 1993 Congress passed, and President William Clinton signed, the Religious Freedom Restoration Act (RFRA), which sought, in effect, to overrule Smith and restore the compelling state interest test. This set the stage for the collision between Congress and the Court in Flores.
Here Justice Anthony Kennedy wrote for the Court and found the Religious Freedom Restoration Act unconstitutional because it was beyond the power of Congress to enact. Since the Free Exercise Clause of the First Amendment applied to the states through the Fourteenth Amendment (Cantwell v. Connecticut 1940), Congress, in enacting the RFRA, was acting under its authority conferred by Section 5 of the Fourteenth Amendment to enforce “this article” by appropriate legislation. While not questioning congressional power to enforce the Fourteenth Amendment, Kennedy’s opinion made it clear that it was the exclusive province of the Court to decide what the substantive requirements of the Fourteenth Amendment were. In other words, Congress could enforce only what the Court found to be the requirements to be “this article.”
The legislative power of Congress under Section 5, Justice Kennedy concluded, was remedial in nature; it did not extend to declaring the substance of what the Fourteenth Amendment requires. Furthermore, Justice Kennedy’s opinion established a judicial test for determining when Congress is properly legislating in a remedial mode under Section 5. While admitting that it was not always easy to distinguish between a “remedy” and a newly coined substantive right, the Court said that “the distinction exists and must be observed.” To that end the majority held that “there must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” And the Court, of course, will be the judge of congruence and proportionality.
The federalism dimension of Flores constitutes a potentially important limitation on the legislative power of Congress and should be seen in the context of such other federalism decisions as United States v. Lopez and United States v. Morrison.
Braunfeld v. Braun, 366 U.S. 599 (1961); Cantwell v. Connecticut, 310 U.S. 296 (1940); City of Boerne v. Flores, 521 U.S. 507 (1997); Employment Division v. Smith, 494 U.S. 872 (1990); Reynolds v. United States, 98 U.S. 145 (1878); and Sherbert v. Verner, 374 U.S. 398 (1963).