The most remarkable thing about City of Boerne v. Flores

[tom berg]

I have a question for Marci Hamilton or others about the
separation of powers argument against RFRA.  And some
comments.

The Court in the Civil Rights Cases held that the
Fourteenth Amendment does not bar private racial
discrimination.  Congress later passed the Civil Rights Act
forbidding private entities to discriminate by race (much
later, in fact, but one could imagine the two events being
closer together).  Suppose, for the sake of argument, the
Act enacted the precise standard that would have applied
under the Equal Protection Clause -- say, forbidding
intentional discrimination.  Suppose that in passing the
Act, Congress expressed sharp disagreement with the Court's
narrow construction of the Fourteenth Amendment, and said
that it was applying the Fourteenth Amendment concept of
racial equality to private entities -- but it also said it
was relying on the Commerce Clause.  The so-called
separation of powers argument against RFRA purports to
invalidate RFRA without regard to whether Congress acted
within one of its powers (Article I or 14th Am section 5).
Would that argument not also invalidate the Civil Rights
Act without regard to whether it was supported by the
Commerce Power, since Congress disagreed with the Court and
legislated the rule the Court had rejected?

The references to separation of powers in Boerne are easily
explained by the fact that the section 5 issue boils down to
a separation of powers matter.  Congress is limited in
section 5 to enforcing the Constitution (i.e. 14th Am
section 1), and the question became (as with Marbury) whose
construction of the Constitution would prevail, the Court's
(*Smith*) or Congress's (the compelling interest standard).
The Court said its view prevails because the judicial
branch, not the legislative, has the final duty to define
the meaning of the Constitution.  That's how separation of
powers comes in -- under section 5, not as a free-standing
argument -- and therefore it is limited to striking down
RFRA against the states.

If Boerne were a serious separation of powers ruling, one
would have expected, as a matter of even the most minimal
judicial workmanship, some discussion of U.S. v. Klein and
other cases.

Finally, if Justice O'Connor thinks that exemptions based
on the compelling interest test are required by the Free
Exercise Clause (her dissent), how could she also be
concerned that they violate the Establishment Clause?  That
would raise the "tension" between the clauses to unheard-of
heights.

-- Tom Berg, Cumberland Law School, Samford University



On Fri, 27 Jun 1997 16:24:00 -0400 Marci Hamilton
<Hamilton02 at AOL.COM> wrote:

> I agree with Eugene Volokh that it is striking that the Court sang in harmony
> on federalism in the Boerne decision.  As the oral argument revealed, the
> combination of RFRA's sweeping scope and its usurpation of the Court's power
> over interpreting the Constitution likely persuaded the Justices that it was
> necessary in this case above all others to come as close to unanimity as
> possible.  I think that this also explains the relative brevity of the
> concurrences and dissents.
>
> On the issue whether the decision applies to federal law, I would assume it
> does not, though the reasoning of the Court does not bode well for defending
> the Act as applied to federal law.  The separation of powers point is stated
> forcefully and often and would seem irrelevant of whether the law being
> regulated is state or federal.  In addition, although only Stevens raises the
> Establishment Clause point, certainly Justices Kennedy and O'Connor at oral
> argument expressed grave concerns on this aspect of RFRA.
>
> Marci Hamilton
> Benjamin N. Cardozo School of Law
> on leave at the Center of Theological Inquiry, Princeton Theological Seminary

----------------------
tom berg
tcberg at samford.edu