city boerne flores archbishop san antonio et argued february decided june held rfra exceeds congress power pp congress enacted rfra direct response employment dept human resources smith upheld free exercise challenge state law general applicability criminalizing peyote use applied deny unemployment benefits native american church members lost jobs use ruling declined apply balancing test sherbert verner asks whether law issue substantially burdens religious practice whether burden justified compelling government interest rfra prohibits overnment substantially burden ing person exercise religion even burden results rule general applicability unless government demonstrate burden furtherance compelling governmental interest least restrictive means furthering interest rfra mandate appliesto branch federal state government officials persons acting color law universal coverage includes federal state law implementation law whether statutory otherwise whether adopted rfra enactment pp imposing rfra requirements congress relied fourteenth amendment inter alia guarantees state shall make enforce law depriving person life liberty property without due process law denying person equal protection laws empowers congress enforce guarantees appropriate legislation respondent amicus contend rfra permissible enforcement legislation although congress certainly enact legislation enforcing constitutional right free exercise religion see cantwell connecticut power enforce preventive remedial south carolina katzenbach amendment design text inconsistent suggestion congress power decree substance amendment restrictions legislation alters free exercise clause meaning said enforcing clause congress enforce constitutional right changing right line measures remedy prevent unconstitutional actions measures make substantive change governing law easy discern congress must wide latitude determining lies distinction exists must observed must congruence proportionality injury prevented remedied means adopted end lacking connection legislation may become substantive operation effect need distinguish remedy substance supported fourteenth amendment history case law see civil rights cases oregon mitchell amendment design proved significant also maintaining traditional separation powers congress judiciary depriving congress power interpret elaborate meaning conferring self executing substantive rights cf thereby leaving interpretive power judiciary pp rfra proper exercise congress enforcement power contradicts vital principles necessary maintain separation powers federal state balance instructive comparison may drawn rfra voting rights act provisions upheld katzenbach supra subsequentvoting rights cases contrast record widespread persisting racial discrimination confronted congress judiciary cases rfra legislative record lacks examples instances generally applicable laws passed religious bigotry past years rather emphasis rfra hearings laws like one issue place incidental burdens religion difficult maintain laws based animus hostility burdened religious practices indicate widespread pattern religious discrimination country rfra serious shortcoming however lies fact proportion supposed remedial preventive object understood responsive designed prevent unconstitutional behavior appears instead attempt substantive change constitutional protections proscribing state conduct fourteenth amendment prohibit sweeping coverage ensures intrusion every level government displacing laws prohibiting official actions almost every description regardless subject matter restrictions apply every government agency official statutory law whether adopted enactment termination date termination mechanism law subject challenge time individual claims substantial burden free exercise religion claim often difficult contest see smith supra requiring state demonstrate compelling interest show adopted least restrictive means achieving interest demanding test known constitutional law furthermore least restrictive means requirement used jurisprudence rfra purported codify told rfra considerable congressional intrusion traditional prerogatives general authority regulate health welfare citizens designed identify counteract state laws likely unconstitutional treatment religion pp reversed kennedy delivered opinion rehnquist stevens thomas ginsburg joined part scalia joined stevens filed concurring opinion scalia filed opinion concurring part stevens joined filed dissenting opinion breyer joined except portion part souter breyer filed dissenting opinions notice opinion subject formal revision publication preliminary print reports readers requested notify reporter decisions wash ington typographical formal errors order corrections may made preliminary print goes press city boerne petitioner flores archbishop san antonio writ certiorari appeals fifth circuit june justice kennedy delivered opinion decision local zoning authorities deny church building permit challenged religious freedom restoration act rfra stat et seq case calls question authority congress enact rfra conclude statute exceeds congress power situated hill city boerne texas miles northwest san antonio peter catholic church built church structure replicates mission style region earlier history church seats worshippers number small growing parish parishioners accommodated sunday masses order meet needs congregation archbishop san antonio gave permission parish plan alterations enlarge building months later boerne city council passed ordinance authorizing city historic landmarkcommission prepare preservation plan proposed historic landmarks districts ordinance commission must preapprove construction affecting historic landmarks buildings historic district soon afterwards archbishop applied building permit construction enlarge church proceed city authorities relying ordinance designation historic district argued included church denied application archbishop brought suit challenging permit denial district western district texas supp complaint contained various claims point litigation centered rfra question constitutionality archbishop relied upon rfra one basis relief refusal issue permit district concluded enacting rfra congress exceeded scope enforcement power fourteenth amendment certified order interlocutory appeal fifth circuit reversed finding rfra constitutional granted certiorari reverse congress enacted rfra direct response decision employment dept human resources smith considered free exercise clause claim brought members native american church denied unemployment benefits lost jobs used peyote practice ingest peyote sacramental purposes challenged oregon statute general applicability made use drug criminal evaluating claim declined apply balancing test set forthin sherbert verner asked whether oregon prohibition substantially burdened religious practice whether burden justified compelling government interest stated overnment ability enforce generally applicable prohibitions socially harmful conduct depend measuring effects governmental action religious objector spiritual development make individual obligation obey law contingent upon law coincidence religious beliefs except state interest compelling contradicts constitutional tradition common sense internal quotation marks citation omitted smith decision acknowledged employed sherbert test considering free exercise challenges state unemployment compensation rules three occasions balance tipped favor individual see sherbert supra thomas review bd indiana employment security hobbie unemployment appeals cases explained stand proposition state place system individual exemptions may refuse extend system cases religious hardship without compelling reason internal quotation marks omitted contrast general prohibition oregon issue sounder approach approach accord vast majority precedents hold test inapplicable free exercise challenges smith held neutral generally applicable laws may applied religious practices even supported compelling governmental interest four members disagreed argued law placed substantial burden native american church members upheld law served compelling state interest narrowly tailored achieve end justice concluded oregon satisfied test justice blackmun joined justice brennan justice marshall see compelling interest justifying law application members points constitutional interpretation debated members congress hearings floor debates many criticized reasoning disagreement resulted passage rfra congress announced framers constitution recognizing free exercise religion unalienable right secured protection first amendment constitution laws neutral toward religion may burden religious exercise surely laws intended interfere religious exercise governments substantially burden religious exercise without compelling justification employment division smith virtually eliminated requirement government justify burdens religious exercise imposed laws neutral toward religion compelling interest test set forth prior federal rulings workable test striking sensible balances religious liberty competing prior governmental interests restore compelling interest test set forth sherbert verner wisconsin yoder guarantee application cases free exercise religion substantially burdened provide claim defense persons whose religious exercise substantially burdened government constitution federal government one enumerated powers mcculloch maryland wheat see also federalist rossiter ed madison judicial authority determine constitutionality laws cases controversies based premise powers legislature defined limited limits may mistaken forgotten constitution written marbury madison cranch congress relied fourteenth amendment enforcement power enacting far reaching substantial rfra provisions impose requirements see religious freedom restoration act pp senate report house report fourteenth amendment provides relevant part section state shall make enforce law shall abridge privileges immunities citizens shall state deprive person life liberty property without due process law deny personwithin jurisdiction equal protection laws section congress shall power enforce appropriate legislation provisions article parties disagree whether rfra proper exercise congress power enforce appropriate legislation constitutional guarantee state shall deprive person life liberty property without due process law deny person equal protection laws defense act respondent contends support amicus rfra permissible enforcement legislation congress said protecting legislation one liberties guaranteed fourteenth amendment due process clause free exercise religion beyond necessary smith said congressional decision dispense proof deliberate overt discrimination instead concentrate law effects accords settled understanding includes power enact legislation designed prevent well remedy constitutional violations contended congress power limited remedial preventive legislation must acknowledge positive grant legislative power congress katzenbach morgan ex parte virginia explained scope congress power following broad terms whatever legislation appropriate adapted carry objects amendments view whatever tends enforce submission prohibitions contain secure allpersons enjoyment perfect equality civil rights equal protection laws state denial invasion prohibited brought within domain congressional power also true however broad congressional enforcement power unlimited oregon mitchell supra opinion black assessing breadth enforcement power begin text congress given power enforce provisions article agree respondent course congress enact legislation enforcing constitutional right free exercise religion provisions article refers include due process clause fourteenth amendment congress power enforce free exercise clause follows holding cantwell connecticut fundamental concept liberty embodied fourteenth amendment due process clause embraces liberties guaranteed first amendment see also price doubt power congress enforce appropriate criminal sanction every right guaranteed due process clause fourteenth amendment internal quotation marks citation omitted congress power however extends enforc ing provisions fourteenth amendment described power remedial south carolina katzenbach supra design amendment text inconsistent suggestion congress power decree substance fourteenth amendment restrictions legislation alters meaning free exercise clause said enforcing clause congress enforce constitutional right changing right given power enforce power determine constitutes constitutional violation congress enforcing longer meaningful sense provisions fourteenth amendment line measures remedy prevent unconstitutional actions measures make substantive change governing law easy discern congress must wide latitude determining lies distinction exists must observed must congruence proportionality injury prevented remedied means adopted end lacking connection legislation may become substantive operation effect history case law support drawing distinction one apparent text amendment fourteenth amendment history confirms remedial rather substantive nature enforcement clause joint committee reconstruction congress began drafting become fourteenth amendment january objections committee first draft amendment rejection draft direct bearing central issue defining congress enforcement power february republican representative john bingham ohio reported following draft amendment house representatives behalf joint committee congress shall power make laws shall necessary proper secure citizens state privileges immunities citizens several persons several equal protection rights life liberty property cong globe result objections expressed many different quarters house voted table proposal april see kendrick journal joint committee fifteen reconstruction cong globe app statement farnsworth congressional action seen marking defeat proposal see nation mar postponement amendment conclusive passage new york times mar doubtful ever comes house see also cong globe statement farnsworth amendment given quietus postponement two months slept sleep knows waking measure defeated chiefly many members legal profession aw dangerous centralization power nation supra many leading republicans th house representatives consent radical change constitution cong globe statement garfield amendment early form considered instead joint committee began drafting new article amendment reported congress april section new draft amendment imposed self executing limits section prescribed congress shall power enforce appropriate legislation provisions article see cong globe revised amendment congress power longer plenary remedial congress granted power make substantive constitutional prohibitions stateseffective representative bingham said new draft give congress power protect national law privileges immunities citizens republic whenever shall abridged denied unconstitutional acts state representative stevens described new draft amendment allow ing congress correct unjust legislation see also statement howard enables congress case shall enact laws conflict principles amendment correct legislation formal congressional enactment see generally brannon rights privileges guaranteed fourteenth amendment constitution congress powers prohibitive corrective vetoing aimed undue process law cooley constitutional limitations ed amendment constitution concentrate power general government purpose police government within object preclude legislation state shall abridge privileges immunities citizens revised amendment proposal raise concerns expressed earlier regarding broad congressional power prescribe uniform national laws respect life liberty property see cong globe app statement garfield fourteenth amendment limited oust jurisdiction state revisions relevant new measure passed houses ratified july fourteenth amendment significance defeat bingham proposal apparent even debates ku klux klan act years amendment ratification representative james garfieldargued limits congress enforcement power saying unless ignore history language clauses reasonable interpretation give force effect rejected bingham clause cong globe app see also app statement farnsworth scholars successive generations agreed assessment see flack adoption fourteenth amendment bickel voting rights cases sup rev design fourteenth amendment proved significant also maintaining traditional separation powers congress judiciary first eight amendments constitution set forth self executing prohibitions governmental action primary authority interpret prohibitions bingham draft thought departed tradition vesting congress primary power interpret elaborate meaning new amendment legislation congress courts judge whether privileges immunities secured citizens several flack supra separation powers aspect occasion widespread resistance caused proposal threat federal balance nonetheless attracted attention various members see cong globe statement hale noting bill rights unlike bingham proposal provide safeguards enforced courts exercised legislature app statement rogers prior bingham proposal left entirely courts enforce privileges immunities citizens enacted fourteenth amendment confers substantive rights like provisionsof bill rights self executing cf south carolina katzenbach discussing fifteenth amendment power interpret constitution case controversy remains judiciary remedial preventive nature congress enforcement power limitation inherent power confirmed earliest cases fourteenth amendment civil rights cases invalidated sections civil rights act prescribed criminal penalties denying person full enjoyment public accommodations conveyances grounds exceeded congress power seeking regulate private conduct enforcement clause said authorize congress pass general legislation upon rights citizen corrective legislation may necessary proper counteracting laws may adopt enforce amendment prohibited making enforcing power legislate generally upon life liberty property opposed power provide modes redress offensive state action repugnant constitution see also reese harris james bowman although specific holdings early cases might superseded modified see heart atlanta motel guest treatment congress power corrective preventive definitional questioned recent cases continued revolve around thequestion whether legislation considered remedial south carolina katzenbach supra emphasized constitutional propriety legislation adopted enforcement clause must judged reference historical experience reflects upheld various provisions voting rights act finding remedies aimed areas voting discrimination flagrant necessary banish blight racial discrimination voting infected electoral process parts country nearly century noted evidence record reflecting subsisting pervasive discriminatory therefore unconstitutional use literacy tests act new remedies used administrative resources federal government included suspension literacy tests pending federal review new voting regulations covered jurisdictions well assignment federal examiners list qualified applicants enabling listed vote new unprecedented remedies deemed necessary given ineffectiveness existing voting rights laws see slow costly character case case litigation south carolina katzenbach continued acknowledge necessity using strong remedial preventive measures respond widespread persisting deprivation constitutional rights resulting country history racial discrimination see oregon mitchell enacting literacy test ban congress long history discriminatory use literacy tests disfranchise voters account race opinion black literacy tests used times discriminatory weapon minorities negroes americansof mexican ancestry american indians opinion douglas congress determined racial prejudice prevalent throughout nation literacy tests unduly lend discriminatory application either conscious unconscious opinion harlan question congress legitimately concluded use literacy tests anywhere within inevitable effect denying vote members racial minorities whose inability pass tests direct consequence previous governmental discrimination education opinion brennan ationwide suspension literacy tests may reasonably thought appropriate congress acts evil racial discrimination varying degrees manifests every part country opinion stewart city rome congress considered determination least another years statutory remedies necessary counter perpetuation years pervasive voting discrimination unsurprising unassailable morgan congress factual basis conclude new york literacy requirement constituted invidious discrimination violation equal protection clause suggestion congress substantive non remedial power fourteenth amendment supported case law oregon mitchell supra majority concluded congress exceeded enforcement powers enacting legislation lowering minimum age voters state local elections five members reached conclusion explained legislation intruded area reserved constitutionto see concluding legislation unconstitutional constitution reserves power set voter qualifications state local elections opinion black explaining fourteenth amendment never intended restrict authority allocate political power see fit opinion harlan concluding congress power establish qualification voting based age opinion stewart joined burger blackmun four five explicit rejecting position endowed congress power establish meaning constitutional provisions see opinion harlan opinion stewart justice black rejection position might inferred disagreement congress interpretation equal protection clause see language opinion katzenbach morgan interpreted acknowledging power congress enact legislation expands rights contained fourteenth amendment necessary interpretation however even best one morgan considered constitutionality voting rights act provided person successfully completed sixth primary grade public school private school accredited commonwealth puerto rico language instruction english denied right vote inability read write english new york constitution hand required voters able read write english provided two related rationales conclusion viewed measure secure puerto rican community residing new york nondiscriminatory treatment bygovernment first rationale congress prohibit new york denying right vote large segments puerto rican community order give puerto ricans enhanced political power helpful gaining nondiscriminatory treatment public services entire puerto rican community ibid section thus justified remedial measure deal discrimination governmental services second rationale alternative holding address discrimination provision public services discrimination establishing voter qualifications perceived factual basis congress concluded new york literacy requirement constituted invidious discrimination violation equal protection clause rationales upholding rested unconstitutional discrimination new york congress reasonable attempt combat justice stewart explained oregon mitchell supra interpreting morgan give congress power interpret constitution require enormous extension decision rationale congress define powers altering fourteenth amendment meaning longer constitution superior paramount law unchangeable ordinary means level ordinary legislative acts like acts alterable legislature shall please alter marbury madison cranch approach difficult conceive principle limit congressional power see van alstyne failure religious freedom restoration act section fourteenth amendment duke shifting legislative majorities change constitution effectively circumvent difficult detailed amendment process containedin article turn consider whether rfra considered enforcement legislation fourteenth amendment respondent contends rfra proper exercise congress remedial preventive power act said reasonable means protecting free exercise religion defined smith prevents remedies laws enacted unconstitutional object targeting religious beliefs practices see church lukumi babalu aye hialeah law targeting religious beliefs never permissible avoid difficulty proving violations said congress simply invalidate law imposes substantial burden religious practice unless justified compelling interest least restrictive means accomplishing interest congress prohibit laws discriminatory effects order prevent racial discrimination violation equal protection clause see fullilove klutznick plurality opinion city rome respondent argues promote religious liberty preventive rules sometimes appropriate remedial measures must congruence means used ends achieved appropriateness remedial measures must considered light evil presented see south carolina katzenbach strong measures appropriate address one harm may unwarranted response another lesser one comparison rfra voting rights act instructive contrast record confronted congress judiciary votingrights cases rfra legislative record lacks examples modern instances generally applicable laws passed religious bigotry history persecution country detailed hearings mentions episodes occurring past years see religious freedom restoration act hearings subcommittee civil constitutional rights house committee judiciary statement douglas laycock house hearings religious freedom restoration act hearing senate committee judiciary statement dallin oaks senate hearing senate hearing statement douglas laycock religious freedom restoration act hearing subcommittee civil constitutional rights house committee judiciary statement john buchanan house hearing absence recent episodes stems fact one witness testified deliberate persecution usual problem country house hearings statement douglas laycock see also house report aws directly targeting religious practices become increasingly rare rather emphasis hearings laws general applicability place incidental burdens religion much discussion centered upon anecdotal evidence autopsies performed jewish individuals hmong immigrants violation religious beliefs see house hearings statement nadine strossen statement william yang statement stephen solarz statement douglas laycock senate hearing statement william yang statement hmong lao unity statement baptist joint committee see also senate report house report zoning regulations historic preservation laws like one issue incident normal operation adverse effects churches synagogues see house hearings statement robert dugan statement nadine strossen statement stephen solarz statement edward gaffney statement douglas laycock senate hearing statement forest montgomery house hearing statement robert dugan see also senate report house report difficult maintain examples legislation enacted enforced due animus hostility burdened religious practices indicate widespread pattern religious discrimination country congress concern incidental burdens imposed object purpose legislation see house report senate report house hearings statement nadine strossen statement stephen solarz house hearing statement stephen solarz lack support legislative record however rfra serious shortcoming judicial deference cases based state legislative record congress compiles due regard decision body constitutionally appointed decide oregon mitchell opinion harlan general matter congress determine method reach decision regardless state legislative record rfra considered remedial preventive legislation terms meaning rfra proportion supposed remedial preventive object understood responsive ordesigned prevent unconstitutional behavior appears instead attempt substantive change constitutional protections preventive measures prohibiting certain types laws may appropriate reason believe many laws affected congressional enactment significant likelihood unconstitutional see city rome since jurisdictions demonstrable history intentional racial discrimination create risk purposeful discrimination congress prohibit changes discriminatory impact jurisdictions remedial legislation adapted mischief wrong fourteenth mendment intended provide civil rights cases rfra confined sweeping coverage ensures intrusion every level government displacing laws prohibiting official actions almost every description regardless subject matter rfra restrictions apply every agency official federal state local governments rfra applies federal state law statutory otherwise whether adopted enactment rfra termination date termination mechanism law subject challenge time individual alleges substantial burden free exercise religion reach scope rfra distinguish measures passed congress enforcement power even area voting rights south carolina katzenbach challenged provisions confined regions country voting discrimination flagrant see affected discrete class state laws state voting laws furthermore ensure reach voting rights act limited cases whichconstitutional violations likely order reduce possibility overbreadth coverage act terminate behest political subdivisions danger substantial voting discrimination materialized preceding five years provisions restricting banning literacy tests upheld katzenbach morgan oregon mitchell attacked particular type voting qualification one long history notorious means deny abridge voting rights racial grounds south carolina katzenbach black concurring dissenting city rome rejected challenge constitutionality voting rights act provision required certain jurisdictions submit changes electoral practices department justice preimplementation review requirement placed jurisdictions history intentional racial discrimination voting like provisions issue south carolina katzenbach provision permitted covered jurisdiction avoid preclearance requirements certain conditions moreover lapsed seven years say course legislation requires termination dates geographic restrictions egregious predicates however congressional enactment pervasively prohibits constitutional state action effort remedy prevent unconstitutional state action limitations kind tend ensure congress means proportionate ends legitimate stringent test rfra demands state laws reflects lack proportionality congruence means adopted legitimate end achieved objector show substantial burden free exercise state must demonstrate acompelling governmental interest show law least restrictive means furthering interest claims law substantially burdens someone exercise religion often difficult contest see smith principle law logic brought bear contradict believer assertion particular act central personal faith distinction questions centrality questions sincerity burden admittedly fine concurring judgment requiring state demonstrate compelling interest show adopted least restrictive means achieving interest demanding test known constitutional law compelling interest really means says many laws meet test test open prospect constitutionally required religious exemptions civic obligations almost every conceivable kind laws valid smith fall rfra without regard whether object stifling punishing free exercise make observations reargue position majority smith illustrate substantive alteration holding attempted rfra even assuming rfra interpreted effect mandate lesser test say one equivalent intermediate scrutiny statute nevertheless require searching judicial scrutiny state law attendant likelihood invalidation considerable congressional intrusion traditional prerogatives general authority regulate health welfare citizens substantial costs rfra exacts practical terms imposing heavy litigation burden terms curtailing traditional general regulatory power far exceed pattern practice unconstitutional conduct freeexercise clause interpreted smith simply put rfra designed identify counteract state laws likely unconstitutional treatment religion cases state laws rfra applies ones motivated religious bigotry state law disproportionately burdened particular class religious observers circumstance might evidence impermissible legislative motive cf washington davis rfra substantial burden test however even discriminatory effects disparate impact test reality modern regulatory state numerous state laws zoning regulations issue impose substantial burden large class individuals exercise religion burdened incidental way law general application follow persons affected burdened citizens let alone burdened religious beliefs addition act imposes every case least restrictive means requirement requirement used jurisprudence rfra purported codify also indicates legislation broader appropriate goal prevent remedy constitutional violations congress acts within sphere power responsibilities right duty make informed judgment meaning force constitution clear early days republic member house representatives objected debate constitutionality legislation based theory officious consider constitutionality measure affect house james madison explained incontrovertibly much importance branch government constitution preserved entire isour duty annals congress otherwise afford congress presumption validity enactments enjoy national experience teaches constitution preserved best part government respects constitution proper actions determinations branches interpreted constitution acted within province judicial branch embraces duty say law marbury madison cranch political branches government act background judicial interpretation constitution already issued must understood later cases controversies treat precedents respect due settled principles including stare decisis contrary expectations must disappointed rfra designed control cases controversies one us provisions federal statute invoked beyond congressional authority precedent rfra must control congress first instance determin whether legislation needed secure guarantees fourteenth amendment conclusions entitled much deference katzenbach morgan congress discretion unlimited however courts retain power since marbury madison determine congress exceeded authority constitution broad power congress enforcement clause fourteenth amendment rfra contradicts vital principles necessary maintain separation powers federal balance judgment appeals sustaining reversed ordered city boerne petitioner flores archbishop san antonio writ certiorari appeals fifth circuit june justice stevens concurring opinion religious freedom restoration act rfra law respecting establishment religion violates first amendment constitution historic landmark hill boerne happened museum art gallery owned atheist eligible exemption city ordinances forbid enlargement structure landmark owned catholic church claimed rfra gives owner federal statutory entitlement exemption generally applicable neutral civil law whether church actually prevail statute statute provided church legal weapon atheist agnostic obtain governmental preference religion opposed irreligion forbidden first amendment wallace jaffree city boerne petitioner flores archbishop san antonio writ certiorari appeals fifth circuit june justice scalia justice stevens joins concurring part write respond briefly claim justice dissent hereinafter dissent historical materials support result contrary one reached employment dept human resources smith see post dissenting opinion held smith constitution free exercise clause relieve individual obligation comply valid neutral law general applicability ground law proscribes prescribes conduct religion prescribes proscribes quoting lee stevens concurring judgment material dissent claims odds smith either little say issue fact consistent smith dissent interpretation free exercise clause dissent extravagant claim historical record shows smith wrong compared assessment prominent scholarly critic smith extensive review historical record willing venture constitutionally compelled exemptions generally applicable laws regulating conduct within contemplation framers ratifiers possible interpretation free exercise clause mcconnell origins historical understanding free exercise religion harv rev emphasis added see also hamburger constitutional right religious exemption historical perspective geo law rev arguing historical evidence supports smith interpretation free exercise dissent first claims smith interpretation free exercise clause departs understanding reflected various statutory constitutional protections religion enacted colonies territories period leading ratification bill rights post protections afforded enactments fact consistent smith interpretation free exercise dissent understanding free exercise clause dissent claims best understood affirmative guarantee right participate religious practices conduct without impermissible governmental interference even conduct conflicts neutral generally applicable law thus even neutral laws general application may invalid burden religiously motivated conduct post however early free exercise enactments cited dissent protect action taken respect religion post maryland act concerning religion rhode island charter new hampshire constitution action taken account religion post maryland declaration rights northwest ordinance discriminat ory action post new york constitution finally unhelpfully purposes interpreting free exercise federal constitution action interferes freeexercise religion post maryland act concerning religion georgia constitution eminently arguable application neutral generally applicable laws sort dissent refers zoning laws post constitute action taken respect account one religion discriminatory action assuming however affirmative protection religion accorded early free exercise enactments sweeps broadly dissent theory require enactments support dissent view since contain provisos significantly qualify affirmative protection grant according dissent provisos support view superfluous correct smith generally applicable laws enforceable regardless religious conscience post disagree fact plausible reading free exercise enactments affirmative provisions read broadly dissent view requires virtual restatement smith religious exercise shall permitted long violate general laws governing conduct provisos enactments negate license act manner unfaithfull lord proprietary maryland act concerning religion behav peaceabl quie manner rhode island charter disturb public peace new hampshire constitution interfere peace safety th state new york maryland georgia constitutions demea oneself peaceable orderly manner northwest ordinance see post time provisos enacted keeping peace order seems meant precisely obeying laws breach law peace queen lane mod eng even late noah websterpublished american dictionary english language gave one meanings peace public tranquility quiet order security guaranteed laws keep peace break peace american dictionary english language limitation upon scope religious exercise accord background political philosophy age associated prominently john locke regarded freedom right lawfully prohibited west case right religion based exemptions notre dame law ethics public policy thus disturb peace caveats apparently permitted government deny religious freedom merely event violence force generally upon occurrence illegal actions hamburger supra interpretation early free exercise enactments support judgment smith see sensible interpretation cause support understand position justice smith critics one camp knowledge contends favored compelling state interest test conforms possible interpretation breach peace order violence force category action limited violation law possibly conveyed phrase peace order justifies state prohibition religiously motivated conduct apart early free exercise enactments colonies territories dissent calls attention bodies continental congress legislative accommodation religious practices prior ratification bill rights post accommodation took place enactment state constitutional protections religious liberty suggests according dissent drafters ratifiers first amendment assumed courts apply free exercise clause similarly post legislatures sometimes though always found appropriate accommodate religious practices establish accommodation understood constitutionally mandated free exercise clause explained smith say nondiscriminatory religious practice exemption permitted even desirable say constitutionally required values protected government interference enshrinement bill rights thereby banished political process ibid dissent final source claimed historical support consists statements certain framers context debates proposed legislative enactments debates general principles connectionwith drafting state federal constitutions statements subject objection evidence legislative accommodation reason think meant describe constitutionally required judicially enforceable opposed thought legislatively even morally desirable thus example pamphlet written james madison opposing virginia proposed general assessment support religion post argue assessment violate free exercise provision virginia declaration rights although provision enacted law eight years earlier post rather pamphlet argues assessment wrongly placed civil society ahead personal religious belief thus approved legislators post likewise letter george washington quakers post terms refers washington wish desire religion accommodated belief existing constitutional provisions required accommodation examples offered dissent reflect speakers views proper relationship government religion post views least insofar content context material suggests constitutionally required relationship one exception statement thomas jefferson considered government interdicted constitution intermeddling religious institutions doctrines discipline exercises post internal quotation marks omitted quite clear jefferson fact espouse broad principle affirmative accommodation advocated dissent see mcconnell harv seems telling point made dissent found says inwhat fails say understanding period surrounding ratification bill rights various forms accommodation discussed dissent constitutionally required either state constitutions federal constitution surprising find single state federal case refusing enforce generally applicable statute failure make accommodation yet dissent cites none knowledge knowledge academic defenders dissent position see discussing early cases none exists closest one come period prior decision new york city municipal holding new york constitution quoted post required acknowledgement priest penitent privilege protect catholic priest compelled testify contents confession people philips general sessions city new york june excerpted privileged communications clergymen cath lawyer even lone case weak authority comes minor also involve statute result might possibly achieved without invoking constitutional entitlement simply modifying common law rules evidence recognize privilege side ledger moreover two cases fromthe pennsylvania flatly rejecting dissent view simon executors gratz pen held litigant entitled continuance trial ground appearing sabbath violate religious principles stansbury marks dall decided two years ratification bill rights imposed fine witness refused sworn sabbath limited response new items historical evidence brought forward today dissent dissent claim efore smith free exercise cases generally keeping dissent view post adequately answered smith historical evidence marshalled dissent fairly said demonstrate correctness smith supportive conclusion destructive return point made earlier evidence compatible theory familiar proposed alternative smith dissent approach course great popular attraction possibly abstract proposition government even general nondiscriminatory laws place unreasonable burdens upon religious practice unfortunately however abstract proposition must ultimately reduced concrete cases issue presented smith quite simply whether people elected representatives rather shall control outcome concrete cases example shall determination ratherof people whether dissent apparently believes post church construction exempt zoning laws historical evidence put forward dissent nothing undermine conclusion reached smith shall people city boerne petitioner flores archbishop san antonio writ certiorari appeals fifth circuit june justice justice breyer joins except portion part dissenting dissent disposition case agree issue us whether religious freedom restoration act rfra proper exercise congress power enforce fourteenth amendment yardstick measuring constitutionality rfra uses holding employment dept human resources smith decision prompted congress enact rfra means rigorously enforcing free exercise clause remain view smith wrongly decided use case reexamine holding therefore direct parties brief question whether smith represents correct understanding free exercise clause set case reargument correct misinterpretation free exercise clause set forth smith simultaneously put first amendment jurisprudence back course allay legitimate concerns majority congress believed smith improperly restricted religious liberty position review rfrain light proper interpretation free exercise clause agree much reasoning set forth part opinion indeed agreed standard smith join opinion careful thorough historical analysis shows congress lacks power decree substance fourteenth amendment restrictions ante emphasis added rather power fourteenth amendment extends enforcing amendment provisions short congress lacks ability independently define expand scope constitutional rights statute accordingly whether congress exceeded powers turns whether congruence proportionality injury prevented remedied means adopted end ante recognition course way diminish congress obligation draw conclusions regarding constitution meaning congress less called upon consider requirements constitution act accordance dictates enacts legislation furtherance delegated powers congress must make judgments consistent exposition constitution limits placed legislative authority provisions fourteenth amendment analysis whether rfra constitutional exercise congress power set forth part opinion premised assumption smith correctly interprets free exercise clause assumption accept continue believe smith adopted improper standard deciding free exercise claims smith five membersof without briefing argument issue interpreted free exercise clause permit government prohibit without justification conduct mandated individual religious beliefs long prohibition generally applicable contrary holding case however free exercise clause simply antidiscrimination principle protects laws single religious practice unfavorable treatment see smith supra concurring judgment rather clause best understood affirmative guarantee right participate religious practices conduct without impermissible governmental interference even conduct conflicts neutral generally applicable law smith free exercise cases generally keeping idea law substantially burdened religiously motivated conduct regardless whether specifically targeted religion applied generally required government justify law compelling state interest use means narrowly tailored achieve interest see citing hernandez commissioner hobbie unemployment appeals lee mcdaniel paty wisconsin yoder gillette sherbert verner rejection principle smith supported neither precedent discussed history decision harmed religious liberty example federal district reliance smith ruled free exercise clause implicated hmong natives objected religious grounds son autopsy conducted pursuant generally applicable state law yang sturner supp ri appeals eighth circuit held application city zoning laws prevent church conducting services area zoned commercial uses raised free exercise concerns even though city permitted secular profit organizations area cornerstone bible church hastings see also rector bartholomew church new york free exercise claim city application facially neutral landmark designation law drastically restricted church ability raise revenue carry various charitable ministerial programs cert denied state hershberger free exercise clause provided basis exempting amish farmer displaying bright orange triangle buggy farmer objected religious grounds even though evidence showed material served state purpose equally well cases demonstrate lower courts applying smith longer find necessary searching judicial inquiry possibility reasonably accommodating religious practice stare decisis concerns prevent us revisiting holding tare decisis principle policy mechanical formula adherence latest decision however recent questionable adherence involves collision prior doctrine embracing scope intrinsically sounder verified experience adarand constructors peña citing helvering hallock principle particularly true constitutional cases case plainly illustrates correction legislative action practically impossible seminole tribe florida slip internal quotationmarks citation omitted believe light precedent nation tradition religious liberty smith demonstrably wrong moreover recent decision engendered kind reliance continued application militate overruling cf planned parenthood southeastern casey accordingly believe reexamine holding smith case place return rule requires government justify substantial burden religiously motivated conduct compelling state interest impose burden means narrowly tailored achieve interest shall restate said opinions demonstrated smith gravely odds earlier free exercise precedents see church lukumi babalu aye hialeah souter concurring stating difficult escape conclusion whatever smith virtues include comfortable fit settled law smith supra concurring see also mcconnell free exercise revisionism smith decision chi rev rather examine early american tradition religious free exercise gain insight original understanding free exercise clause inquiry smith undertake previously recognized importance interpreting religion clauses light history lynch donnelly interpretation establishment clause comported history reveals contemporaneous understanding guarantees school dist abington township schempp historical evidence casts doubt current interpretation free exercise clause record instead reveals drafters ratifiers likely viewed free exercise clause guarantee government may unnecessarily hinder believers freely practicing religion position consistent jurisprudence original constitution drafted ratified provisions safeguarding individual liberties freedom speech religion federalists chief supporters new constitution took view amending constitution explicitly protect individual freedoms superfluous since rights amendments protect already completely secure see annals congress gales seaton ed remarks james madison june moreover feared guaranteeing certain civil liberties might backfire since express mention freedoms might imply others protected according alexander hamilton bill rights even dangerous specifying various exceptions powers granted afford colorable pretext claim granted federalist rossiter ed anti federalists however insisted definite guarantees apprehensive newly established federal government overwhelm rights individuals wanted explicit assurances federal government power matters personal liberty curry first freedoms church state america passage first amendment additionally baptistsand protestant dissenters feared religious liberty new federal government called amendment guaranteeing religious freedom end legislators acceded demands december bill rights added constitution respect religious liberty first amendment provided congress shall make law respecting establishment religion prohibiting free exercise thereof amdt neither first congress ratifying state legislatures debated question religious freedom much detail directly consider scope first amendment free exercise protection disingenuous say framers neglected define precisely scope free exercise clause words free exercise precise meaning levy essays american constitutional history case number terms used bill rights exactly clear framers thought phrase signified ibid astonishing discover debate bill rights conducted level abstraction vague convey impression americans nebulous conception meanings particular rights sought insure variety sources supplement legislative history shed light original understanding free exercise clause materials suggest contrary smith framers intend simply prevent government adopting laws discriminated religion although framers may asked precisely questions religious liberty today historical record indicates believed constitution affirmatively protects religious free exercise limits government ability intrude religiouspractice principle religious free exercise notion religious liberty deserved legal protection means new concepts bill rights ratified contrary principles first articulated country colonies maryland rhode island pennsylvania delaware carolina mid colonies though established sanctuaries particular groups religious dissenters extended freedom religion groups although often limited christian groups beyond thus encountered early conflicts may arise society made plurality faiths term free exercise appeared american legal document early lord baltimore extracted new protestant governor maryland councilors promise disturb christians particularly roman catholics free exercise religion mcconnell origins historical understanding free exercise religion harv rev hereinafter origins free exercise soon maryland assembly enacted first free exercise clause passing act concerning religion oe person professing beleive jesus christ shall henceforth bee waies troubled molested discountenanced respect religion free exercise thereof way compelled beleife exercise religion consent soe unfaithfull lord proprietary molest conspire civill governemt act concerning religion reprinted founders constitution kurland lerner eds hereinafter founders constitution rhode island charter used analogous conscience protected residents ways molested punished disquieted called question differences opinion matters religion actually disturb civil peace said colony charter provided residents may freely fully enjoy judgments conscience matters religious concernments behaving peaceably quietly using liberty licentiousness profaneness civil injury outward disturbance others charter rhode island providence plantations swindler sources documents constitutions various agreements prospective settlers proprietors carolina new york new jersey similarly guaranteed religious freedom using language paralleled rhode island charter see new york act declaring rights priviledges concession agreement lords proprietors province new caesarea new jersey laws west new jersey art fundamental constitutions east new jersey art xvi first charter carolina art xviii cogan complete bill rights galley documents suggest early country history several colonies acknowledged freedom pursue one chosen religious beliefs essential liberty moreover colonies appeared recognize government interfere religious matters necessary protect civil peace prevent licentiousness words religious beliefs conflicted civil law religion prevailed unless important state interests militated otherwise notions parallel ideas expressed cases government may hinder believers freely exercising religion unless necessary tofurther significant state interest principles expounded early charters emerged century later state constitutions adopted flurry constitution drafting followed american revolution every state connecticut incorporated version free exercise clause constitution origins free exercise state provisions typically longer detailed federal free exercise clause perhaps best evidence original understanding constitution protection religious liberty reasonable think ratified first amendment assumed meaning federal free exercise provision corresponded existing state clauses precise language state precursors free exercise clause varied guaranteed free exercise religion liberty conscience limited particular defined state interests example new york constitution provided free exercise enjoyment religious profession worship without discrimination preference shall forever hereafter allowed within state mankind provided liberty conscience hereby granted shall construed excuse acts licentiousness justify practices inconsistent peace safety state art xxxviii swindler supra emphasis added every individual natural unalienable right worship god according dictates conscience reason subject shallbe hurt molested restrained person liberty estate worshipping god manner season agreeable dictates conscience provided doth disturb public peace disturb others religious worship art swindler supra emphasis added person law molested person estate account religious persuasion profession religious practice unless colour religion man shall disturb good order peace safety state shall infringe laws morality injure others natural civil religious rights md declaration rights art xxxiii swindler supra emphasis added persons whatever shall free exercise religion provided repugnant peace safety state ga art lvi swindler supra emphasis added person demeaning peaceable orderly manner shall ever molested account mode worship religious sentiments said territory northwest territory ordinance art stat emphasis added virginia legislature may debated issue fully may virginia constitutional convention wrote constitution containing declaration rights clause religious liberty initial drafter clause george mason proposed following religion duty owe creator manner discharging directed reason conviction force violence therefore men enjoy fullest toleration exercise religion according dictates conscience unpunished unrestrained magistrate unless colour religion man disturb peace happiness safety society mutual duty practice christian forbearance love charity towards committee draft virginia declaration rights papersof george mason rutland ed emphasis added religion duty owe creator manner discharging direction reason conviction violence compulsion men equally entitled full free exercise according dictates conscience therefore man class men account religion invested peculiar emoluments privileges subjected penalties disabilities unless color religion preservation equal liberty existence state manifestly endangered hunt james madison religious liberty annual report american historical association emphasis added practice colonies early bears conclusion time bill rights ratified accepted government possible accommodate religious practice unsurprisingly course even american colonies inhabited people religious persuasions religious conscience civil law rarely conflicted century americans belonged denominations protestant christianity whose religious practices generallyharmonious colonial law curry first freedoms vast majority americans assumed christian protestant country automatically expected government uphold commonly agreed protestant ethos morality moreover governments far smaller less intrusive today made conflict civil law religion unusual nevertheless tension religious conscience generally applicable laws though rare unknown america commonly conflicts arose oath requirements military conscription religious assessments origins free exercise ways conflicts resolved suggest americans colonies early thought individual religious scruples prevented complying generally applicable law government possible excuse person law coverage example quakers certain protestant sects refused biblical grounds subscribe oaths swear allegiance civil authority adams emmerich nation dedicated religious liberty constitutional heritage religion clauses hereinafter adams emmerich without accommodation beliefs prevented participating civic activities involving oaths including testifying colonial governments created alternatives oath requirement individuals early decisions example carolina proprietors applied religious liberty provision carolina charter permit quakers enter pledges book curry first freedoms similarly new york enacted law allowing quakers testify affirmation permitted quakers qualify vote affirmation virtually enactedoath exemptions see adams emmerich early conflicts religious beliefs generally applicable laws also occurred military conscription requirements quakers mennonites well smaller denominations refused religious grounds carry arms members denominations asserted liberty conscience exempt military conscription obviously excusing objectors military service high public cost given importance military defense society nevertheless rhode island north carolina maryland exempted quakers military service late new york massachusetts virginia new hampshire followed suit mid origins free exercise continental congress likewise granted exemption conscription people religious principles bear arms case congress intend violence consciences earnestly recommend contribute liberally time universal calamity relief distressed brethren several colonies services oppressed country consistently religious principles resolution july reprinted journals continental congress pp ford ed colonies established churches encountered religious accommodation problem typically governments required citizens pay tithes support either government established church church tithepayer belonged baptists quakers well others opposed government compelled tithes religious grounds massachusetts connecticut new hampshire virginia responded exempting objectors religious assessments ibid additional examples early conflicts civil laws religious practice similarly settled accommodation religious exercise north carolina maryland excused quakers requirement removing hats rhode island exempted jews requirements state marriage laws georgia allowed groups european immigrants organize whole towns according faith sure legislatures courts granted early accommodations days constitution protect civil liberties judicial review yet exist legislatures apparently believed appropriate response conflicts civil law religious scruples possible accommodation religious conduct reasonable presume drafters ratifiers first amendment many served state legislatures assumed courts apply free exercise clause similarly religious liberty safeguarded writings early leaders helped shape nation provide final source insight original understanding free exercise clause thethoughts james madison one principal architects bill rights revealed controversy surrounding virginia general assessment bill particularly illuminating virginia debate religious issues end adoption constitutional free exercise provision although virginia disestablished church england left open question whether religion might supported nonpreferential basis called general assessment levy essays american constitutional history years issue support religion virginia either general assessment voluntarily widely debated curry first freedoms supporters general assessment led patrick henry gained slight majority virginia assembly malbin religion politics intentions authors first amendment levy supra introduced bill establishing provision teachers christian religion proposed citizens taxed order support christian denomination choice taxes designated specific denomination go public fund aid seminaries levy supra curry supra malbin supra madison viewed religious assessment dangerous infringement religious liberty led opposition bill took case religious assessment people virginia famous memorial remonstrance religious assessments levy supra pamphlet led thousands virginians oppose bill submit petitions expressing views legislature malbin supra bill eventually died committee virginia instead enacted bill establishing religious freedom thomasjefferson drafted malbin supra memorial remonstrance begins recognition religion every man must left conviction conscience every man right every man exercise may dictate writings james madison hunt ed nature madison wrote right free exercise unalienable person opinion follow dictates entails duty toward creator ibid madison continued duty owed creator precedent order time degree obligation claims civil society man becomes member civil society must saving allegiance universal sovereign maintain therefore matters religion man right abridged institution civil society religion wholly exempt cognizance early leaders expressed similar views regarding religious liberty thomas jefferson drafter virginia bill establishing religious freedom wrote document civil government interfere religious exercise principles break overt acts peace good order heindicated considered government interdicted constitution intermeddling religious institutions doctrines discipline exercises writings thomas jefferson lipscomb ed quoted office legal policy dept justice report attorney general religious liberty free exercise clause moreover jefferson believed religious society right determine time exercises objects proper according particular tenets right never safer hands constitution deposited ibid george washington expressly stated believed government utmost accommodate religious scruples writing letter group quakers opinion conscientious scruples men treated great delicacy tenderness wish desire laws may always extensively accommodated due regard protection essential interests nation may justify permit letter george washington religious society called quakers george washington religious liberty mutual understanding humphrey ed examples various perspectives regarding proper relationship church government existed time first amendment drafted ratified obviously since thinkers approached issue religious freedom somewhat differently see adams emmerich possible distill thoughts one tidy formula nevertheless general principles may discerned foremost early leaders accorded religious exercise special constitutional status right free exercise substantive guarantee individual liberty less important right free speech right compensation taking property see kauper religion constitution ur whole constitutional history supports conclusion religious liberty independent liberty recognition may either require permit preferential treatment religious grounds instances madison put concluding argument memorial remonstrance equal right every citizen free exercise religion according dictates conscience held tenure rights equally gift nature less dear us enumerated equal solemnity rather studied emphasis writings james madison religion clauses constitution represent profound commitment religious liberty nation founders conceived republic receptive voluntary religious expression secular society religious expression tolerated conflict generally applicable law historical sources discussed show free exercise clause properly understood affirmative guarantee right participate religious activities without impermissible governmental interference even believer conduct tension law general application certainly way anomalous accord heightened protection right identified text first amendment example long position freedom speech right enumerated words right free exercise special constitutional status given centrality freedom speech religion american concept personal liberty altogether reasonable conclude treated withthe highest degree respect although may provide bright line rule declared smith faithfully serve purpose constitution accordingly believe essential reconsider holding smith case therefore direct parties brief issue set case reargument respectfully dissent disposition case city boerne petitioner flores archbishop san antonio writ certiorari appeals fifth circuit june justice souter dissenting decide whether fourteenth amendment gives congress sufficient power enact religious freedom restoration act measures legislation free exercise standard employment dept human resources smith reasons stated opinion church lukumi babalu aye hialeah opinion concurring part concurring judgment serious doubts precedential value smith rule entitlement adherence doubts intensified today historical arguments going original understanding free exercise clause presented justice opinion ante raises substantial issues soundness smith rule see also ante justice scalia concurring addresssing historical arguments without briefing argument merits rule never case including smith see lukumi supra prepared join justice rejecting majority assuming correct order provide full adversarial consideration case set downfor reargument permitting plenary reexamination issue since declines follow course free exercise law remains marked intolerable tension lukumi constitutionality act congress enforce free exercise right soundly decided therefore dismiss writ certiorari improvidently granted accordingly dissent disposition case city boerne petitioner flores archbishop san antonio writ certiorari appeals fifth circuit june justice breyer dissenting agree justice direct parties brief question whether employment dept human resources smith correctly decided set case reargument however find necessary consider question whether assuming smith correct fourteenth amendment authorize congress enact legislation us thus agree views expressed first paragraph part justice dissent necessarily agree therefore join justice dissent exception first paragraph part footnotes justice scalia joins part iii opinion word licentious used several early enactments likewise meant xceeding limits law american dictionary english language explanation applies course george mason initial draft virginia religious liberty clause see post said unless colour religion man disturb peace society probably meant unless color religion man break law thus case mason james madison formulations envisioned conflict religious exercise generally applicable laws person interest freely practicing religion balanced state interests post least insofar regulation conduct concerned dissent mentions example seven thirteen colonies exempted quakers military service mid virtually enacted oath exemptions post emphasis added general sessions mayor ruling phillips made dewitt clinton last mayor preside subsequently reconstituted common pleas clinton never jurist indeed never practiced law years phillips instrumental removing political disabilities catholics new york see dictionary american biography indeed author simon executors well written smith onsiderations policy address propriety legislature magistrate whose course prescribed discretion rules already established pen