521 u.s. 507 city of boerne v. flores 2157

2157CITY OF BOERNE v. FLORESCite as 117 S.Ct. 2157 (1997)

521 U.S. 507

521 U.S. 507, 138 L.Ed.2d 624

S 507CITY OF BOERNE, Petitioner,

v.

P.F. FLORES, Archbishop of SanAntonio, and United States.

No. 95–2074.Argued Feb. 19, 1997.

Decided June 25, 1997.

Local zoning authorities denied CatholicArchbishop building permit to enlargechurch under ordinance governing historicpreservation. Archbishop brought suit chal-lenging ordinance under Religious FreedomRestoration Act of 1993 (RFRA). The Unit-ed States District Court for the WesternDistrict of Texas, 877 F.Supp. 355, enteredjudgment for city, determining that Congresshad exceeded scope of its enforcement powerunder § 5 of Fourteenth Amendment in en-acting RFRA. The Fifth Circuit Court ofAppeals, 73 F.3d 1352, reversed, findingRFRA to be constitutional. City sought writof certiorari. The Supreme Court, JusticeKennedy, held that Freedom Restoration Actexceeded Congress’ § 5 enforcement powers.

Judgment of Court of Appeals reversed.

Justice Stevens filed concurring opinion.

Justice Scalia filed opinion concurring inpart, in which Justice Stevens joined.

Justice O’Connor filed dissenting opin-ion, in which Breyer, J., joined in part.

Justices Souter and Breyer filed dissent-ing opinions.

1. United States O5Federal government is one of enumerat-

ed powers.

2. Constitutional Law O82(6.1)Enforcement power granted Congress

under § 5 of Fourteenth Amendment is posi-tive grant of legislative power. U.S.C.A.Const.Amend. 14, § 5.

3. Constitutional Law O82(6.1)Legislation which deters or remedies

constitutional violation can fall within sweep

of Congress’ enforcement power under Four-teenth Amendment even if in process it pro-hibits conduct which is not itself unconstitu-tional and intrudes into legislative spheres ofautonomy previously reserved to states.U.S.C.A. Const.Amend. 14, § 5.

4. Constitutional Law O274(3.1)Congress can enact legislation under en-

forcement power of Fourteenth Amendmentenforcing constitutional right to free exerciseof religion. U.S.C.A. Const.Amends. 1, 14,§ 5.

5. Constitutional Law O82(6.1)Congress’ enforcement power under

Fourteenth Amendment extends only to ‘‘en-forcing’’ provisions of Fourteenth Amend-ment; Congress has been given power to‘‘enforce,’’ not power to determine what con-stitutes constitutional violation; while line be-tween measures that remedy or prevent con-stitutional actions and measures that makesubstantive change in governing law is noteasy to discern, and Congress must havewide latitude in determining where it lies,distinction must be observed. U.S.C.A.Const.Amend. 14, § 5.

6. Constitutional Law O82(6.1)While preventative rules are sometimes

appropriate remedial measures under en-forcement clause of Fourteenth Amendment,there must be congruence between meansused and ends to be achieved; appropriate-ness of remedial measures must be consid-ered in light of evil presented. U.S.C.A.Const.Amend. 14, § 5.

7. Constitutional Law O82(6.1)Preventative measures prohibiting cer-

tain types of laws may be appropriate underCongress’ remedial powers under FourteenthAmendment when there is reason to believethat many of laws affected by congressionalenactment have significant likelihood of beingconstitutional. U.S.C.A. Const.Amend. 14,§ 5.

8. Civil Rights O103 Constitutional Law O52, 274(3.1) States O4.16(2)

Religious Freedom Restoration Act(RFRA) exceeds Congress’ power under § 5

2158 117 SUPREME COURT REPORTER 521 U.S. 507

of Fourteenth Amendment to enforce provi-sions of Fourteenth Amendment; RFRA con-tradicts principles necessary to maintain sep-aration of powers and federal-state balance,addresses laws of general application thatplace incidental burdens on religion that arenot based on animus or hostility and do notindicate any widespread pattern of religiousdiscrimination, and is not designed to identifyand counteract state laws likely to be uncon-stitutional; RFRA is also out of proportion tosupposed remedial or preventative object,displaces laws and prohibits official actions inalmost every level of government, and consti-tutes considerable congressional intrusioninto states’ traditional prerogatives and gen-eral authority to regulate. U.S.C.A. Const.Amend. 5; Religious Freedom RestorationAct of 1993, § 2 et seq., 42 U.S.C.A.§ 2000bb et seq.

Syllabus *Respondent, the Catholic Archbishop of

San Antonio, applied for a building permit toenlarge a church in Boerne, Texas. Whenlocal zoning authorities denied the permit,relying on an ordinance governing historicpreservation in a district which, they argued,included the church, the Archbishop broughtthis suit challenging the permit denial under,inter alia, the Religious Freedom Restora-tion Act of 1993 (RFRA). The District Courtconcluded that by enacting RFRA Congressexceeded the scope of its enforcement powerunder § 5 of the Fourteenth Amendment.The court certified its order for interlocutoryappeal, and the Fifth Circuit reversed, find-ing RFRA to be constitutional.

Held: RFRA exceeds Congress’ power.Pp. 2160–2172.

(a) Congress enacted RFRA in directresponse to Employment Div., Dept. of Hu-man Resources of Oregon v. Smith, 494 U.S.872, 110 S.Ct. 1595, 108 L.Ed.2d 876, inwhich the Court upheld against a free exer-cise challenge a state law of general applica-bility criminalizing peyote use, as applied todeny unemployment benefits to NativeAmerican Church members who lost their

jobs because of such use. In so ruling, theCourt declined to apply the balancing test ofSherbert v. Verner, 374 U.S. 398, 83 S.Ct.1790, 10 L.Ed.2d 965, which asks whether thelaw at issue substantially burdens a religiouspractice and, if so, whether the burden isjustified by a compelling government inter-est. RFRA prohibits ‘‘[g]overnment’’ from‘‘substantially burden[ing]’’ a person’s exer-cise of religion even if the burden resultsfrom a rule of general applicability unless thegovernment can demonstrate the burden ‘‘(1)is in furtherance of a compelling governmen-tal interest; and (2) is the least restrictivemeans of furthering that TTT interest.’’ 42U.S.C. § 2000bb–1. RFRA’s mandate ap-plies to any branch of Federal or State Gov-ernment, to all officials, and to other personsacting under color of law. § 2000bb–2(1). Itsuniversal coverage includes ‘‘all Federal andState law, and the implementation of thatlaw, whether statutory or otherwise, andwhether adopted before or after [RFRA’senactment].’’ § 2000bb–3(a). Pp. 2160–2162.

(b) In imposing RFRA’s requirementson the States, Congress relied on the Four-teenth Amendment, which, inter alia, guar-antees that no State shall make or enforceany law depriving any person of ‘‘life,libSerty,508 or property, without due process oflaw,’’ or denying any person the ‘‘equal pro-tection of the laws,’’ § 1, and empowers Con-gress ‘‘to enforce’’ those guarantees by ‘‘ap-propriate legislation,’’ § 5. RespondentArchbishop and the United States contendthat RFRA is permissible enforcement legis-lation under § 5. Although Congress certain-ly can enact legislation enforcing the consti-tutional right to the free exercise of religion,see, e.g., Cantwell v. Connecticut, 310 U.S.296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213, its§ 5 power ‘‘to enforce’’ is only preventive or‘‘remedial,’’ South Carolina v. Katzenbach,383 U.S. 301, 326, 86 S.Ct. 803, 817–818, 15L.Ed.2d 769. The Amendment’s design and§ 5’s text are inconsistent with any sugges-tion that Congress has the power to decreethe substance of the Amendment’s restric-tions on the States. Legislation which alters

* The syllabus constitutes no part of the opinion ofthe Court but has been prepared by the Reporterof Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co.,200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed.499.


521 U.S. 509

the Free Exercise Clause’s meaning cannotbe said to be enforcing the Clause. Con-gress does not enforce a constitutional rightby changing what the right is. While theline between measures that remedy or pre-vent unconstitutional actions and measuresthat make a substantive change in the gov-erning law is not easy to discern, and Con-gress must have wide latitude in determiningwhere it lies, the distinction exists and mustbe observed. There must be a congruenceand proportionality between the injury to beprevented or remedied and the meansadopted to that end. Lacking such a connec-tion, legislation may become substantive inoperation and effect. The need to distin-guish between remedy and substance is sup-ported by the Fourteenth Amendment’s his-tory and this Court’s case law, see, e.g., CivilRights Cases, 109 U.S. 3, 13–14, 15, 3 S.Ct.18, 22–24, 27 L.Ed. 835; Oregon v. Mitchell,400 U.S. 112, 209, 296, 91 S.Ct. 260, 307–308,350, 27 L.Ed.2d 272. The Amendment’s de-sign has proved significant also in maintain-ing the traditional separation of powers be-tween Congress and the Judiciary, deprivingCongress of any power to interpret and elab-orate on its meaning by conferring self-exe-cuting substantive rights against the States,cf. id., at 325, 86 S.Ct., at 816–817, andthereby leaving the interpretive power withthe Judiciary. Pp. 2162–2168.

(c) RFRA is not a proper exercise ofCongress’ § 5 enforcement power because itcontradicts vital principles necessary tomaintain separation of powers and the feder-al-state balance. An instructive comparisonmay be drawn between RFRA and the Vot-ing Rights Act of 1965, provisions of whichwere upheld in Katzenbach, supra, and sub-sequent voting rights cases. In contrast tothe record of widespread and persisting ra-cial discrimination which confronted Con-gress and the Judiciary in those cases,RFRA’s legislative record lacks examples ofany instances of generally applicable lawspassed because of religious bigotry in thepast 40 years. Rather, the emphasis of theRFRA hearings was on laws like the one atissue that place incidental burdens on reli-gion. It is difficult to maintain that suchlaws are based on animus or hostility to theburdened religious practices or that they in-

dicate some widespread S 509pattern of reli-gious discrimination in this country.RFRA’s most serious shortcoming, however,lies in the fact that it is so out of proportionto a supposed remedial or preventive objectthat it cannot be understood as responsive to,or designed to prevent, unconstitutional be-havior. It appears, instead, to attempt asubstantive change in constitutional protec-tions, proscribing state conduct that theFourteenth Amendment itself does not pro-hibit. Its sweeping coverage ensures its in-trusion at every level of government, displac-ing laws and prohibiting official actions ofalmost every description and regardless ofsubject matter. Its restrictions apply to ev-ery government agency and official,§ 2000bb–2(1), and to all statutory or otherlaw, whether adopted before or after its en-actment, § 2000bb–3(a). It has no termi-nation date or termination mechanism. Anylaw is subject to challenge at any time by anyindividual who claims a substantial burden onhis or her free exercise of religion. Such aclaim will often be difficult to contest. SeeSmith, supra, at 887, 110 S.Ct., at 1604–1605.Requiring a State to demonstrate a compel-ling interest and show that it has adopted theleast restrictive means of achieving that in-terest is the most demanding test known toconstitutional law. 494 U.S., at 888, 110S.Ct., at 1605. Furthermore, the least re-strictive means requirement was not used inthe pre-Smith jurisprudence RFRA purport-ed to codify. All told, RFRA is a considera-ble congressional intrusion into the States’traditional prerogatives and general authori-ty to regulate for the health and welfare oftheir citizens, and is not designed to identifyand counteract state laws likely to be uncon-stitutional because of their treatment of reli-gion. Pp. 2168–2172.

73 F.3d 1352, reversed.KENNEDY, J., delivered the opinion of

the Court, in which REHNQUIST, C.J., andSTEVENS, THOMAS, and GINSBURG, JJ.,joined, and in which SCALIA, J., joined as toall but Part III–A–1. STEVENS, J., filed aconcurring opinion, post, p. 2172. SCALIA,J., filed an opinion concurring in part, inwhich STEVENS, J., joined, post, p. 2172.O’CONNOR, J., filed a dissenting opinion, in


which BREYER, J., joined except as to thefirst paragraph of Part I, post, p. 2176.SOUTER, J., post, p. 2185, and BREYER, J.,post, p. 2186, filed dissenting opinions.

Marci A. Hamilton, Yardley, PA, for peti-tioner.

Jeffrey S. Sutton, Columbus, OH, for Ohio,et al., as amici curiae by special leave of theCourt.

S 510Douglas Laycock, Austin, TX, for re-spondent P. F. Flores.

Walter Dellinger, Durham, NC, for re-spondent United States.

For U.S. Supreme Court briefs, see:1997 WL 10293 (Resp.Brief)1997 WL 13201 (Resp.Brief)1997 WL 53105 (Reply.Brief)1997 WL 689630 (Pet.Supp.Brief)

S 511Justice KENNEDY delivered theopinion of the Court.*

A decision by local zoning authorities todeny a church a building permit was chal-lenged under the Religious Freedom Resto-ration Act of 1993 (RFRA or Act), 107 Stat.1488, 42 U.S.C. § 2000bb et seq. The casecalls into question the authority of Congressto enact RFRA. We conclude the statuteexceeds Congress’ power.

ISituated on a hill in the city of Boerne,

Texas, some 28 miles northwest of San Anto-nio, is St. Peter Catholic Church. Built in1923, the church’s structure replicates themission S 512style of the region’s earlier histo-ry. The church seats about 230 worshippers,a number too small for its growing parish.Some 40 to 60 parishioners cannot be accom-modated at some Sunday masses. In orderto meet the needs of the congregation theArchbishop of San Antonio gave permissionto the parish to plan alterations to enlargethe building.

A few months later, the Boerne City Coun-cil passed an ordinance authorizing the city’s

Historic Landmark Commission to prepare apreservation plan with proposed historiclandmarks and districts. Under the ordi-nance, the commission must preapprove con-struction affecting historic landmarks orbuildings in a historic district.

Soon afterwards, the Archbishop appliedfor a building permit so construction to en-large the church could proceed. City au-thorities, relying on the ordinance and thedesignation of a historic district (which, theyargued, included the church), denied the ap-plication. The Archbishop brought this suitchallenging the permit denial in the UnitedStates District Court for the Western Dis-trict of Texas. 877 F.Supp. 355 (1995).

The complaint contained various claims,but to this point the litigation has centeredon RFRA and the question of its constitu-tionality. The Archbishop relied uponRFRA as one basis for relief from the refusalto issue the permit. The District Court con-cluded that by enacting RFRA Congress ex-ceeded the scope of its enforcement powerunder § 5 of the Fourteenth Amendment.The court certified its order for interlocutoryappeal and the Fifth Circuit reversed, findingRFRA to be constitutional. 73 F.3d 1352(1996). We granted certiorari, 519 U.S. 926,117 S.Ct. 293, 136 L.Ed.2d 212 (1996), andnow reverse.

IICongress enacted RFRA in direct re-

sponse to the Court’s decision in Employ-ment Div., Dept. of Human Resources ofOregon v. Smith, 494 U.S. 872, 110 S.Ct.1595, 108 L.Ed.2d 876 (1990). There weconsidered a Free Exercise Clause claimbrought by members of the S 513Native Ameri-can Church who were denied unemploymentbenefits when they lost their jobs becausethey had used peyote. Their practice was toingest peyote for sacramental purposes, andthey challenged an Oregon statute of generalapplicability which made use of the drugcriminal. In evaluating the claim, we de-clined to apply the balancing test set forth inSherbert v. Verner, 374 U.S. 398, 83 S.Ct.1790, 10 L.Ed.2d 965 (1963), under which we

* Justice SCALIA joins all but Part III–A–1 of this opinion.


521 U.S. 515

would have asked whether Oregon’s prohibi-tion substantially burdened a religious prac-tice and, if it did, whether the burden wasjustified by a compelling government inter-est. We stated:

‘‘[G]overnment’s ability to enforce general-ly applicable prohibitions of socially harm-ful conduct TTT cannot depend on measur-ing the effects of a governmental action ona religious objector’s spiritual develop-ment. To make an individual’s obligationto obey such a law contingent upon thelaw’s coincidence with his religious beliefs,except where the State’s interest is ‘com-pelling’ TTT contradicts both constitutionaltradition and common sense.’’ 494 U.S., at885, 110 S.Ct., at 1603 (internal quotationmarks and citations omitted).

The application of the Sherbert test, theSmith decision explained, would have pro-duced an anomaly in the law, a constitutionalright to ignore neutral laws of general appli-cability. The anomaly would have been ac-centuated, the Court reasoned, by the diffi-culty of determining whether a particularpractice was central to an individual’s reli-gion. We explained, moreover, that it ‘‘is notwithin the judicial ken to question the cen-trality of particular beliefs or practices to afaith, or the validity of particular litigants’interpretations of those creeds.’’ 494 U.S., at887, 110 S.Ct., at 1604 (internal quotationmarks and citation omitted).

The only instances where a neutral, gener-ally applicable law had failed to pass consti-tutional muster, the Smith Court S 514noted,were cases in which other constitutional pro-tections were at stake. Id., at 881–882, 110S.Ct., at 1601–1602. In Wisconsin v. Yoder,406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15(1972), for example, we invalidated Wiscon-sin’s mandatory school-attendance law as ap-plied to Amish parents who refused on reli-gious grounds to send their children toschool. That case implicated not only theright to the free exercise of religion but alsothe right of parents to control their children’seducation.

The Smith decision acknowledged theCourt had employed the Sherbert test inconsidering free exercise challenges to stateunemployment compensation rules on three

occasions where the balance had tipped infavor of the individual. See Sherbert, supra;Thomas v. Review Bd. of Indiana Employ-ment Security Div., 450 U.S. 707, 101 S.Ct.1425, 67 L.Ed.2d 624 (1981); Hobbie v. Un-employment Appeals Comm’n of Fla., 480U.S. 136, 107 S.Ct. 1046, 94 L.Ed.2d 190(1987). Those cases, the Court explained,stand for ‘‘the proposition that where theState has in place a system of individualexemptions, it may not refuse to extend thatsystem to cases of religious hardship withoutcompelling reason.’’ 494 U.S., at 884, 110S.Ct., at 1603 (internal quotation marks omit-ted). By contrast, where a general prohibi-tion, such as Oregon’s, is at issue, ‘‘thesounder approach, and the approach in ac-cord with the vast majority of our prece-dents, is to hold the test inapplicable to [freeexercise] challenges.’’ Id., at 885, 110 S.Ct.,at 1603. Smith held that neutral, generallyapplicable laws may be applied to religiouspractices even when not supported by a com-pelling governmental interest.

Four Members of the Court disagreed.They argued the law placed a substantialburden on the Native American Churchmembers so that it could be upheld only ifthe law served a compelling state interestand was narrowly tailored to achieve thatend. Id., at 894, 110 S.Ct., at 1608. JusticeO’CONNOR concluded Oregon had satisfiedthe test, while Justice Blackmun, joined byJustice Brennan and Justice Marshall, couldsee no compelling interest justifying the law’sapplication to the members.

S 515These points of constitutional interpre-tation were debated by Members of Con-gress in hearings and floor debates. Manycriticized the Court’s reasoning, and this dis-agreement resulted in the passage of RFRA.Congress announced:

‘‘(1) [T]he framers of the Constitution,recognizing free exercise of religion as anunalienable right, secured its protection inthe First Amendment to the Constitution;

‘‘(2) laws ‘neutral’ toward religion mayburden religious exercise as surely as lawsintended to interfere with religious exer-cise;


‘‘(3) governments should not substantiallyburden religious exercise without compel-ling justification;‘‘(4) in Employment Division v. Smith,494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d876 (1990), the Supreme Court virtuallyeliminated the requirement that the gov-ernment justify burdens on religious exer-cise imposed by laws neutral toward reli-gion; and‘‘(5) the compelling interest test as setforth in prior Federal court rulings is aworkable test for striking sensible balancesbetween religious liberty and competingprior governmental interests.’’ 42 U.S.C.§ 2000bb(a).

The Act’s stated purposes are:‘‘(1) to restore the compelling interest testas set forth in Sherbert v. Verner, 374 U.S.398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963)and Wisconsin v. Yoder, 406 U.S. 205, 92S.Ct. 1526, 32 L.Ed.2d 15 (1972) and toguarantee its application in all cases wherefree exercise of religion is substantiallyburdened; and‘‘(2) to provide a claim or defense to per-sons whose religious exercise is substan-tially burdened by government.’’§ 2000bb(b).

RFRA prohibits ‘‘[g]overnment’’ from‘‘substantially burden[ing]’’ a person’s exer-cise of religion even if the burden resultsfrom a rule of general applicability unless thegovernment can demonstrate the burden ‘‘(1)is in furtherance of S 516a compelling govern-mental interest; and (2) is the least restric-tive means of furthering that compelling gov-ernmental interest.’’ § 2000bb–1. The Act’smandate applies to any ‘‘branch, department,agency, instrumentality, and official (or otherperson acting under color of law) of theUnited States,’’ as well as to any ‘‘State, orTTT subdivision of a State.’’ § 2000bb–2(1).The Act’s universal coverage is confirmed in§ 2000bb–3(a), under which RFRA ‘‘appliesto all Federal and State law, and the imple-mentation of that law, whether statutory orotherwise, and whether adopted before orafter [RFRA’s enactment].’’ In accordancewith RFRA’s usage of the term, we shall use‘‘state law’’ to include local and municipalordinances.

III

A

[1] Under our Constitution, the FederalGovernment is one of enumerated powers.M’Culloch v. Maryland, 4 Wheat. 316, 405, 4L.Ed. 579 (1819); see also The FederalistNo. 45, p. 292 (C. Rossiter ed. 1961) (J.Madison). The judicial authority to deter-mine the constitutionality of laws, in casesand controversies, is based on the premisethat the ‘‘powers of the legislature are de-fined and limited; and that those limits maynot be mistaken, or forgotten, the constitu-tion is written.’’ Marbury v. Madison, 1Cranch 137, 176, 2 L.Ed. 60 (1803).

Congress relied on its Fourteenth Amend-ment enforcement power in enacting themost far-reaching and substantial of RFRA’sprovisions, those which impose its require-ments on the States. See Religious FreedomRestoration Act of 1993, S.Rep. No. 103–111,pp. 13–14 (1993) (Senate Report); H.R.Rep.No. 103–88, p. 9 (1993) (House Report). TheFourteenth Amendment provides, in relevantpart:

‘‘Section 1TTTT No State shall make orenforce any law which shall abridge theprivileges or immunities of citizens of theUnited States; nor shall any State depriveany person of life, liberty, or property,without due procSess517 of law, nor deny toany person within its jurisdiction the equalprotection of the laws.

. . . . .

‘‘Section 5. The Congress shall have pow-er to enforce, by appropriate legislation,the provisions of this article.’’

The parties disagree over whether RFRA isa proper exercise of Congress’ § 5 power ‘‘toenforce’’ by ‘‘appropriate legislation’’ the con-stitutional guarantee that no State shall de-prive any person of ‘‘life, liberty, or property,without due process of law’’ nor deny anyperson ‘‘equal protection of the laws.’’

In defense of the Act, respondent theArchbishop contends, with support from theUnited States, that RFRA is permissible en-forcement legislation. Congress, it is said, is


521 U.S. 519

only protecting by legislation one of the lib-erties guaranteed by the Fourteenth Amend-ment’s Due Process Clause, the free exerciseof religion, beyond what is necessary underSmith. It is said the congressional decisionto dispense with proof of deliberate or overtdiscrimination and instead concentrate on alaw’s effects accords with the settled under-standing that § 5 includes the power to enactlegislation designed to prevent, as well asremedy, constitutional violations. It is fur-ther contended that Congress’ § 5 power isnot limited to remedial or preventive legisla-tion.

[2, 3] All must acknowledge that § 5 is ‘‘apositive grant of legislative power’’ to Con-gress, Katzenbach v. Morgan, 384 U.S. 641,651, 86 S.Ct. 1717, 1723, 16 L.Ed.2d 828(1966). In Ex parte Virginia, 100 U.S. 339,345–346, 25 L.Ed. 676 (1879), we explainedthe scope of Congress’ § 5 power in thefollowing broad terms:

‘‘Whatever legislation is appropriate, thatis, adapted to carry out the objects theamendments have in view, whatever tendsto enforce submission to the prohibitionsthey contain, and to secure to all personsthe enjoyment of perfect equality of civilrights and the equal protection of the lawsagainst State denial or invasion, if notS 518prohibited, is brought within the domainof congressional power.’’

Legislation which deters or remedies consti-tutional violations can fall within the sweep ofCongress’ enforcement power even if in theprocess it prohibits conduct which is not it-self unconstitutional and intrudes into ‘‘legis-lative spheres of autonomy previously re-served to the States.’’ Fitzpatrick v. Bitzer,427 U.S. 445, 455, 96 S.Ct. 2666, 2671, 49L.Ed.2d 614 (1976). For example, the Courtupheld a suspension of literacy tests andsimilar voting requirements under Congress’parallel power to enforce the provisions ofthe Fifteenth Amendment, see U.S. Const.,Amdt. 15, § 2, as a measure to combat racialdiscrimination in voting, South Carolina v.Katzenbach, 383 U.S. 301, 308, 86 S.Ct. 803,808, 15 L.Ed.2d 769 (1966), despite the facialconstitutionality of the tests under Lassiterv. Northampton County Bd. of Elections, 360

U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959).We have also concluded that other measuresprotecting voting rights are within Congress’power to enforce the Fourteenth and Fif-teenth Amendments, despite the burdensthose measures placed on the States. SouthCarolina v. Katzenbach, supra (upholdingseveral provisions of the Voting Rights Act of1965); Katzenbach v. Morgan, supra (up-holding ban on literacy tests that prohibitedcertain people schooled in Puerto Rico fromvoting); Oregon v. Mitchell, 400 U.S. 112, 91S.Ct. 260, 27 L.Ed.2d 272 (1970) (upholding5–year nationwide ban on literacy tests andsimilar voting requirements for registering tovote); City of Rome v. United States, 446U.S. 156, 161, 100 S.Ct. 1548, 1553, 64L.Ed.2d 119 (1980) (upholding 7–year exten-sion of the Voting Rights Act’s requirementthat certain jurisdictions preclear any changeto a ‘‘ ‘standard, practice, or procedure withrespect to voting’ ’’); see also James Ever-ard’s Breweries v. Day, 265 U.S. 545, 44S.Ct. 628, 68 L.Ed. 1174 (1924) (upholdingban on medical prescription of intoxicatingmalt liquors as appropriate to enforce Eigh-teenth Amendment ban on manufacture, sale,or transportation of intoxicating liquors forbeverage purposes).

[4] It is also true, however, that ‘‘[a]sbroad as the congressional enforcement pow-er is, it is not unlimited.’’ Oregon v.S 519Mitchell, supra, at 128, 91 S.Ct., at 266(opinion of Black, J.). In assessing thebreadth of § 5’s enforcement power, we be-gin with its text. Congress has been giventhe power ‘‘to enforce’’ the ‘‘provisions of thisarticle.’’ We agree with respondent, ofcourse, that Congress can enact legislationunder § 5 enforcing the constitutional rightto the free exercise of religion. The ‘‘provi-sions of this article,’’ to which § 5 refers,include the Due Process Clause of the Four-teenth Amendment. Congress’ power to en-force the Free Exercise Clause follows fromour holding in Cantwell v. Connecticut, 310U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed.1213 (1940), that the ‘‘fundamental concept ofliberty embodied in [the Fourteenth Amend-ment’s Due Process Clause] embraces theliberties guaranteed by the First Amend-ment.’’ See also United States v. Price, 383


U.S. 787, 789, 86 S.Ct. 1152, 1154, 16 L.Ed.2d267 (1966) (there is ‘‘no doubt of the power ofCongress to enforce by appropriate criminalsanction every right guaranteed by the DueProcess Clause of the Fourteenth Amend-ment’’ (internal quotation marks and citationomitted)).

[5] Congress’ power under § 5, however,extends only to ‘‘enforc[ing]’’ the provisionsof the Fourteenth Amendment. The Courthas described this power as ‘‘remedial,’’South Carolina v. Katzenbach, supra, at 326,86 S.Ct., at 817–818. The design of theAmendment and the text of § 5 are inconsis-tent with the suggestion that Congress hasthe power to decree the substance of theFourteenth Amendment’s restrictions on theStates. Legislation which alters the meaningof the Free Exercise Clause cannot be saidto be enforcing the Clause. Congress doesnot enforce a constitutional right by changingwhat the right is. It has been given thepower ‘‘to enforce,’’ not the power to deter-mine what constitutes a constitutional viola-tion. Were it not so, what Congress wouldbe enforcing would no longer be, in anymeaningful sense, the ‘‘provisions of [theFourteenth Amendment].’’

While the line between measures that rem-edy or prevent unconstitutional actions andmeasures that make a substantive change inthe governing law is not easy to discern, andS 520Congress must have wide latitude in de-termining where it lies, the distinction existsand must be observed. There must be acongruence and proportionality between theinjury to be prevented or remedied and themeans adopted to that end. Lacking such aconnection, legislation may become substan-tive in operation and effect. History and ourcase law support drawing the distinction, oneapparent from the text of the Amendment.

1

The Fourteenth Amendment’s history con-firms the remedial, rather than substantive,nature of the Enforcement Clause. TheJoint Committee on Reconstruction of the39th Congress began drafting what wouldbecome the Fourteenth Amendment in Janu-ary 1866. The objections to the Committee’sfirst draft of the Amendment, and the rejec-

tion of the draft, have a direct bearing on thecentral issue of defining Congress’ enforce-ment power. In February, Republican Rep-resentative John Bingham of Ohio reportedthe following draft Amendment to the Houseof Representatives on behalf of the JointCommittee:

‘‘The Congress shall have power to makeall laws which shall be necessary and prop-er to secure to the citizens of each State allprivileges and immunities of citizens in theseveral States, and to all persons in theseveral States equal protection in therights of life, liberty, and property.’’Cong. Globe, 39th Cong., 1st Sess., 1034(1866).

The proposal encountered immediate oppo-sition, which continued through three days ofdebate. Members of Congress from acrossthe political spectrum criticized the Amend-ment, and the criticisms had a commontheme: The proposed Amendment gave Con-gress too much legislative power at the ex-pense of the existing constitutional structure.E.g., id., at 1063–1065 (statement of Rep.Hale); id., at 1082 S 521(statement of Sen.Stewart); id., at 1095 (statement of Rep.Hotchkiss); id., at App. 133–135 (statementof Rep. Rogers). Democrats and conserva-tive Republicans argued that the proposedAmendment would give Congress a power tointrude into traditional areas of state respon-sibility, a power inconsistent with the federaldesign central to the Constitution. Typifyingthese views, Republican Representative Rob-ert Hale of New York labeled the Amend-ment ‘‘an utter departure from every princi-ple ever dreamed of by the men who framedour Constitution,’’ id., at 1063, and warnedthat under it ‘‘all State legislation, in itscodes of civil and criminal jurisprudence andprocedure TTT may be overridden, may berepealed or abolished, and the law of Con-gress established instead.’’ Ibid. SenatorWilliam Stewart of Nevada likewise statedthe Amendment would permit ‘‘Congress tolegislate fully upon all subjects affecting life,liberty, and property,’’ such that ‘‘therewould not be much left for the State Legisla-tures,’’ and would thereby ‘‘work an entirechange in our form of government.’’ Id., at1082; accord, id., at 1087 (statement of Rep.


521 U.S. 523

Davis); id., at App. 133 (statement of Rep.Rogers). Some radicals, like their brethren‘‘unwilling that Congress shall have any suchpower TTT to establish uniform laws through-out the United States upon TTT the protec-tion of life, liberty, and property,’’ id., at 1095(statement of Rep. Hotchkiss), also objectedthat giving Congress primary responsibilityfor enforcing legal equality would place pow-er in the hands of changing congressionalmajorities, ibid. See generally Bickel, TheOriginal Understanding and the SegregationDecision, 69 Harv. L.Rev. 1, 57 (1955); Gra-ham, Our ‘‘Declaratory’’ Fourteenth Amend-ment, 7 Stan. L.Rev. 3, 21 (1954).

As a result of these objections having beenexpressed from so many different quarters,the House voted to table the proposal untilApril. See, e.g., B. Kendrick, Journal of theJoint Committee of Fifteen on Reconstruc-tion 215, 217 (1914); Cong. Globe, 42d Cong.,1st Sess., App. 115 (1871) (statement S 522ofRep. Farnsworth). The congressional actionwas seen as marking the defeat of the pro-posal. See The Nation, Mar. 8, 1866, p. 291(‘‘The postponement of the amendment TTT isconclusive against the passage of [it]’’); NewYork Times, Mar. 1, 1866, p. 4 (‘‘It is doubt-ful if this ever comes before the House againTTT’’); see also Cong. Globe, 42d Cong., 1stSess., App., at 115 (statement of Rep. Farns-worth) (The Amendment was ‘‘given its quie-tus by a postponement for two months,where it slept the sleep that knows no wak-ing’’). The measure was defeated ‘‘chieflybecause many members of the legal profes-sion s[aw] in [it] TTT a dangerous centraliza-tion of power,’’ The Nation, supra, at 291,and ‘‘many leading Republicans of th[e]House [of Representatives] would not con-sent to so radical a change in the Constitu-tion,’’ Cong. Globe, 42d Cong., 1st Sess.,App., at 151 (statement of Rep. Garfield).The Amendment in its early form was notagain considered. Instead, the Joint Com-mittee began drafting a new article ofAmendment, which it reported to Congresson April 30, 1866.

Section 1 of the new draft Amendmentimposed self-executing limits on the States.Section 5 prescribed that ‘‘[t]he Congressshall have power to enforce, by appropriate

legislation, the provisions of this article.’’See Cong. Globe, 39th Cong., 1st Sess., at2286. Under the revised Amendment, Con-gress’ power was no longer plenary but re-medial. Congress was granted the power tomake the substantive constitutional prohibi-tions against the States effective. Represen-tative Bingham said the new draft would giveCongress ‘‘the power TTT to protect by na-tional law the privileges and immunities of allthe citizens of the Republic TTT whenever thesame shall be abridged or denied by theunconstitutional acts of any State.’’ Id., at2542. Representative Stevens described thenew draft Amendment as ‘‘allow[ing] Con-gress to correct the unjust legislation of theStates.’’ Id., at 2459. See also id., at 2768(statement of Sen. Howard) (§ 5 ‘‘enablesCongress, in case the States shall enactS 523laws in conflict with the principles of theamendment, to correct that legislation by aformal congressional enactment’’). See gen-erally H. Brannon, The Rights and PrivilegesGuaranteed by the Fourteenth Amendmentto the Constitution of the United States 387(1901) (Congress’ ‘‘powers are only prohibi-tive, corrective, vetoing, aimed only at undueprocess of law’’); id., at 420, 452–455 (same);T. Cooley, Constitutional Limitations 294, n.1 (2d ed. 1871) (‘‘This amendment of theConstitution does not concentrate power inthe general government for any purpose ofpolice government within the States; its ob-ject is to preclude legislation by any Statewhich shall ‘abridge the privileges or immu-nities of citizens of the United States’ ’’).The revised Amendment proposal did notraise the concerns expressed earlier regard-ing broad congressional power to prescribeuniform national laws with respect to life,liberty, and property. See, e.g., Cong. Globe,42d Cong., 1st Sess., at App. 151 (statementof Rep. Garfield) (‘‘The [Fourteenth Amend-ment] limited but did not oust the jurisdic-tion of the State[s]’’). After revisions notrelevant here, the new measure passed bothHouses and was ratified in July 1868 as theFourteenth Amendment.

The significance of the defeat of the Bing-ham proposal was apparent even then. Dur-ing the debates over the Ku Klux Klan Actonly a few years after the Amendment’s rati-


fication, Representative James Garfield ar-gued there were limits on Congress’ enforce-ment power, saying ‘‘unless we ignore boththe history and the language of these clauseswe cannot, by any reasonable interpretation,give to [§ 5] TTT the force and effect of therejected [Bingham] clause.’’ Ibid.; see alsoid., at App. 115–116 (statement of Rep.Farnsworth). Scholars of successive genera-tions have agreed with this assessment. SeeH. Flack, The Adoption of the FourteenthAmendment 64 (1908); Bickel, The VotingRights Cases, 1966 S.Ct. Rev. 79, 97.

The design of the Fourteenth Amendmenthas proved significant also in maintaining thetraditional separation of powSers524 betweenCongress and the Judiciary. The first eightAmendments to the Constitution set forthself-executing prohibitions on governmentalaction, and this Court has had primary au-thority to interpret those prohibitions. TheBingham draft, some thought, departed fromthat tradition by vesting in Congress primarypower to interpret and elaborate on themeaning of the new Amendment through leg-islation. Under it, ‘‘Congress, and not thecourts, was to judge whether or not any ofthe privileges or immunities were not se-cured to citizens in the several States.’’Flack, supra, at 64. While this separation-of-powers aspect did not occasion the wide-spread resistance which was caused by theproposal’s threat to the federal balance, itnonetheless attracted the attention of variousMembers. See Cong. Globe, 39th Cong., 1stSess., at 1064 (statement of Rep. Hale) (not-ing that Bill of Rights, unlike the Binghamproposal, ‘‘provide[s] safeguards to be en-forced by the courts, and not to be exercisedby the Legislature’’); id., at App. 133 (state-ment of Rep. Rogers) (prior to Binghamproposal it ‘‘was left entirely for the courtsTTT to enforce the privileges and immunitiesof the citizens’’). As enacted, the FourteenthAmendment confers substantive rightsagainst the States which, like the provisionsof the Bill of Rights, are self-executing. Cf.South Carolina v. Katzenbach, 383 U.S., at325, 86 S.Ct., at 816–817 (discussing Fif-teenth Amendment). The power to interpret

the Constitution in a case or controversyremains in the Judiciary.

2

The remedial and preventive nature ofCongress’ enforcement power, and the limita-tion inherent in the power, were confirmed inour earliest cases on the Fourteenth Amend-ment. In the Civil Rights Cases, 109 U.S. 3,3 S.Ct. 18, 27 L.Ed. 835 (1883), the Courtinvalidated sections of the Civil Rights Act of1875 which prescribed criminal penalties fordenying to any person ‘‘the full enjoymentof’’ public accommodations and conveyances,on the grounds that it exceeded Congress’power S 525by seeking to regulate private con-duct. The Enforcement Clause, the Courtsaid, did not authorize Congress to pass‘‘general legislation upon the rights of thecitizen, but corrective legislation, that is, suchas may be necessary and proper for counter-acting such laws as the States may adopt orenforce, and which, by the amendment, theyare prohibited from making or enforc-ingTTTT’’ Id., at 13–14, 3 S.Ct., at 23. Thepower to ‘‘legislate generally upon’’ life, liber-ty, and property, as opposed to the ‘‘power toprovide modes of redress’’ against offensivestate action, was ‘‘repugnant’’ to the Consti-tution. Id., at 15, 3 S.Ct., at 24. See alsoUnited States v. Reese, 92 U.S. 214, 218, 23L.Ed. 563 (1875); United States v. Harris,106 U.S. 629, 639, 1 S.Ct. 601, 609–610, 27L.Ed. 290 (1883); James v. Bowman, 190U.S. 127, 139, 23 S.Ct. 678, 679–680, 47 L.Ed.979 (1903). Although the specific holdings ofthese early cases might have been supersed-ed or modified, see, e.g., Heart of AtlantaMotel, Inc. v. United States, 379 U.S. 241, 85S.Ct. 348, 13 L.Ed.2d 258 (1964); UnitedStates v. Guest, 383 U.S. 745, 86 S.Ct. 1170,16 L.Ed.2d 239 (1966), their treatment ofCongress’ § 5 power as corrective or preven-tive, not definitional, has not been ques-tioned.

Recent cases have continued to revolvearound the question whether § 5 legislationcan be considered remedial. In South Car-olina v. Katzenbach, supra, we emphasizedthat ‘‘[t]he constitutional propriety of [legisla-tion adopted under the Enforcement Clause]must be judged with reference to the histori-cal experience TTT it reflects.’’ 383 U.S., at


521 U.S. 527

308, 86 S.Ct., at 808. There we upheld vari-ous provisions of the Voting Rights Act of1965, finding them to be ‘‘remedies aimed atareas where voting discrimination has beenmost flagrant,’’ id., at 315, 86 S.Ct., at 811,and necessary to ‘‘banish the blight of racialdiscrimination in voting, which has infectedthe electoral process in parts of our countryfor nearly a century,’’ id., at 308, 86 S.Ct., at808. We noted evidence in the record re-flecting the subsisting and pervasive discrim-inatory—and therefore unconstitutional—useof literacy tests. Id., at 333–334, 86 S.Ct., at821–822. The Act’s new remedies, whichused the administrative resources of the Fed-eral Government, included the suspension ofboth literacy tests and, S 526pending federalreview, all new voting regulations in coveredjurisdictions, as well as the assignment offederal examiners to list qualified applicantsenabling those listed to vote. The new, un-precedented remedies were deemed neces-sary given the ineffectiveness of the existingvoting rights laws, see id., at 313–315, 86S.Ct., at 810–812, and the slow, costly charac-ter of case-by-case litigation, id., at 328, 86S.Ct., at 818–819.

After South Carolina v. Katzenbach, theCourt continued to acknowledge the necessi-ty of using strong remedial and preventivemeasures to respond to the widespread andpersisting deprivation of constitutional rightsresulting from this country’s history of racialdiscrimination. See Oregon v. Mitchell, 400U.S., at 132, 91 S.Ct., at 268 (‘‘In enacting theliteracy test ban TTT Congress had before it along history of the discriminatory use of lit-eracy tests to disfranchise voters on accountof their race’’) (opinion of Black, J.); id., at147, 91 S.Ct., at 276 (Literacy tests ‘‘havebeen used at times as a discriminatory weap-on against some minorities, not only Negroesbut Americans of Mexican ancestry, andAmerican Indians’’) (opinion of Douglas, J.);id., at 216, 91 S.Ct., at 311 (‘‘Congress couldhave determined that racial prejudice isprevalent throughout the Nation, and thatliteracy tests unduly lend themselves to dis-criminatory application, either conscious orunconscious’’) (opinion of Harlan, J.); id., at235, 91 S.Ct., at 320 (‘‘[T]here is no questionbut that Congress could legitimately have

concluded that the use of literacy tests any-where within the United States has the inev-itable effect of denying the vote to membersof racial minorities whose inability to passsuch tests is the direct consequence of previ-ous governmental discrimination in edu-cation’’) (opinion of Brennan, J.); id., at 284,91 S.Ct., at 344 (‘‘[N]ationwide [suspension ofliteracy tests] may be reasonably thoughtappropriate when Congress acts against anevil such as racial discrimination which invarying degrees manifests itself in every partof the country’’) (opinion of Stewart, J.); Cityof Rome, 446 U.S., at 182, 100 S.Ct., at 1564(‘‘Congress’ considered determination that atleast another 7 years of statutory remedieswere necessary to counter theS 527perpetuation of 95 years of pervasive vot-ing discrimination is both unsurprising andunassailable’’); Morgan, 384 U.S., at 656, 86S.Ct., at 1726 (Congress had a factual basisto conclude that New York’s literacy require-ment ‘‘constituted an invidious discriminationin violation of the Equal Protection Clause’’).

3

Any suggestion that Congress has a sub-stantive, non-remedial power under theFourteenth Amendment is not supported byour case law. In Oregon v. Mitchell, supra,at 112, 91 S.Ct., at 333, a majority of theCourt concluded Congress had exceeded itsenforcement powers by enacting legislationlowering the minimum age of voters from 21to 18 in state and local elections. The fiveMembers of the Court who reached this con-clusion explained that the legislation intrudedinto an area reserved by the Constitution tothe States. See 400 U.S., at 125, 91 S.Ct., at265 (concluding that the legislation was un-constitutional because the Constitution ‘‘re-serves to the States the power to set voterqualifications in state and local elections’’)(opinion of Black, J.); id., at 154, 91 S.Ct., at280 (explaining that the ‘‘Fourteenth Amend-ment was never intended to restrict the au-thority of the States to allocate their politicalpower as they see fit’’) (opinion of Harlan,J.); id., at 294, 91 S.Ct., at 349 (concludingthat States, not Congress, have the power ‘‘toestablish a qualification for voting based onage’’) (opinion of Stewart, J., joined by Burg-er, C. J., and Blackmun, J.). Four of these


five were explicit in rejecting the positionthat § 5 endowed Congress with the powerto establish the meaning of constitutionalprovisions. See id., at 209, 91 S.Ct., at 307–308 (opinion of Harlan, J.); id., at 296, 91S.Ct., at 350 (opinion of Stewart, J.). JusticeBlack’s rejection of this position might beinferred from his disagreement with Con-gress’ interpretation of the Equal ProtectionClause. See id., at 125, 91 S.Ct., at 265.

There is language in our opinion in Kat-zenbach v. Morgan, 384 U.S. 641, 86 S.Ct.1717, 16 L.Ed.2d 828 (1966), which could beinterpreted as acknowledging a power inCongress to enact legislation that expandsS 528the rights contained in § 1 of the Four-teenth Amendment. This is not a necessaryinterpretation, however, or even the best one.In Morgan, the Court considered the consti-tutionality of § 4(e) of the Voting Rights Actof 1965, which provided that no person whohad successfully completed the sixth primarygrade in a public school in, or a privateschool accredited by, the Commonwealth ofPuerto Rico in which the language of instruc-tion was other than English could be deniedthe right to vote because of an inability toread or write English. New York’s Constitu-tion, on the other hand, required voters to beable to read and write English. The Courtprovided two related rationales for its conclu-sion that § 4(e) could ‘‘be viewed as a mea-sure to secure for the Puerto Rican commu-nity residing in New York nondiscriminatorytreatment by government.’’ Id., at 652, 86S.Ct., at 1724. Under the first rationale,Congress could prohibit New York from de-nying the right to vote to large segments ofits Puerto Rican community, in order to givePuerto Ricans ‘‘enhanced political power’’that would be ‘‘helpful in gaining nondiscrim-inatory treatment in public services for theentire Puerto Rican community.’’ Ibid. Sec-tion 4(e) thus could be justified as a remedialmeasure to deal with ‘‘discrimination in gov-ernmental services.’’ Id., at 653, 86 S.Ct., at1725. The second rationale, an alternativeholding, did not address discrimination in theprovision of public services but ‘‘discrimina-tion in establishing voter qualifications.’’ Id.,at 654, 86 S.Ct., at 1725. The Court per-ceived a factual basis on which Congress

could have concluded that New York’s litera-cy requirement ‘‘constituted an invidious dis-crimination in violation of the Equal Protec-tion Clause.’’ Id., at 656, 86 S.Ct., at 1726.Both rationales for upholding § 4(e) restedon unconstitutional discrimination by NewYork and Congress’ reasonable attempt tocombat it. As Justice Stewart explained inOregon v. Mitchell, supra, at 296, 91 S.Ct., at350, interpreting Morgan to give Congressthe power to interpret the Constitution‘‘would require an enormous extension ofthat decision’s rationale.’’

S 529If Congress could define its own powersby altering the Fourteenth Amendment’smeaning, no longer would the Constitution be‘‘superior paramount law, unchangeable byordinary means.’’ It would be ‘‘on a levelwith ordinary legislative acts, and, like otheracts, TTT alterable when the legislature shallplease to alter it.’’ Marbury v. Madison, 1Cranch, at 177, 2 L.Ed. 60. Under thisapproach, it is difficult to conceive of a princi-ple that would limit congressional power.See Van Alstyne, The Failure of the Reli-gious Freedom Restoration Act under Sec-tion 5 of the Fourteenth Amendment, 46Duke L.J. 291, 292–303 (1996). Shifting leg-islative majorities could change the Constitu-tion and effectively circumvent the difficultand detailed amendment process contained inArticle V.

We now turn to consider whether RFRAcan be considered enforcement legislation un-der § 5 of the Fourteenth Amendment.

BRespondent contends that RFRA is a

proper exercise of Congress’ remedial or pre-ventive power. The Act, it is said, is areasonable means of protecting the free exer-cise of religion as defined by Smith. Itprevents and remedies laws which are enact-ed with the unconstitutional object of target-ing religious beliefs and practices. SeeChurch of Lukumi Babalu Aye, Inc. v. Hial-eah, 508 U.S. 520, 533, 113 S.Ct. 2217, 2227,124 L.Ed.2d 472 (1993) (‘‘[A] law targetingreligious beliefs as such is never permissi-ble’’). To avoid the difficulty of proving suchviolations, it is said, Congress can simplyinvalidate any law which imposes a substan-


521 U.S. 531

tial burden on a religious practice unless it isjustified by a compelling interest and is theleast restrictive means of accomplishing thatinterest. If Congress can prohibit laws withdiscriminatory effects in order to preventracial discrimination in violation of the EqualProtection Clause, see Fullilove v. Klutznick,448 U.S. 448, 477, 100 S.Ct. 2758, 2774, 65L.Ed.2d 902 (1980) (plurality opinion); Cityof Rome, 446 U.S., at 177, 100 S.Ct., at 1561–1562, then it can do the same, respondentargues, to promote religious liberty.

[6] S 530While preventive rules are some-times appropriate remedial measures, theremust be a congruence between the meansused and the ends to be achieved. Theappropriateness of remedial measures mustbe considered in light of the evil presented.See South Carolina v. Katzenbach, 383 U.S.,at 308, 86 S.Ct., at 808. Strong measuresappropriate to address one harm may be anunwarranted response to another, lesser one.Id., at 334, 86 S.Ct., at 821–822.

A comparison between RFRA and theVoting Rights Act is instructive. In contrastto the record which confronted Congress andthe Judiciary in the voting rights cases,RFRA’s legislative record lacks examples ofmodern instances of generally applicablelaws passed because of religious bigotry.The history of persecution in this countrydetailed in the hearings mentions no epi-sodes occurring in the past 40 years. See,e.g., Religious Freedom Restoration Act of1991, Hearings on H.R. 2797 before the Sub-committee on Civil and Constitutional Rightsof the House Committee on the Judiciary,102d Cong., 2d Sess., 331–334 (1993) (state-ment of Douglas Laycock) (House Hearings);The Religious Freedom Restoration Act,Hearing on S. 2969 before the Senate Com-mittee on the Judiciary, 102d Cong., 2dSess., 30–31 (1993) (statement of Dallin H.Oaks) (Senate Hearing); id., at 68–76 (state-ment of Douglas Laycock); Religious Free-dom Restoration Act of 1990, Hearing onH.R. 5377 before the Subcommittee on Civiland Constitutional Rights of the House Com-mittee on the Judiciary, 101st Cong., 2dSess., 49 (1991) (statement of John H. Bu-chanan, Jr.) (1990 House Hearing). The ab-

sence of more recent episodes stems fromthe fact that, as one witness testified, ‘‘delib-erate persecution is not the usual problem inthis country.’’ House Hearings 334 (state-ment of Douglas Laycock). See also HouseReport 2 (‘‘[L]aws directly targeting reli-gious practices have become increasinglyrare’’). Rather, the emphasis of the hear-ings was on laws of general applicabilitywhich place incidental burdens on religion.Much of the discussion cenStered531 upon an-ecdotal evidence of autopsies performed onJewish individuals and Hmong immigrants inviolation of their religious beliefs, see, e.g.,House Hearings 81 (statement of NadineStrossen); id., at 107–110 (statement of Wil-liam Yang); id., at 118 (statement of Rep.Stephen J. Solarz); id., at 336 (statement ofDouglas Laycock); Senate Hearing 5–6, 14–26 (statement of William Yang); id., at 27–28(statement of Hmong–Lao Unity Assn., Inc.);id., at 50 (statement of Baptist Joint Com-mittee); see also Senate Report 8; HouseReport 5–6, and n. 14, and on zoning regula-tions and historic preservation laws (like theone at issue here), which, as an incident oftheir normal operation, have adverse effectson churches and synagogues. See, e.g.,House Hearings 17, 57 (statement of RobertP. Dugan, Jr.); id., at 81 (statement of Na-dine Strossen); id., at 122–123 (statement ofRep. Stephen J. Solarz); id., at 157 (state-ment of Edward M. Gaffney, Jr.); id., at 327(statement of Douglas Laycock); SenateHearing 143–144 (statement of Forest D.Montgomery); 1990 House Hearing 39(statement of Robert P. Dugan, Jr.); seealso Senate Report 8; House Report 5–6,and n. 14. It is difficult to maintain thatthey are examples of legislation enacted orenforced due to animus or hostility to theburdened religious practices or that they in-dicate some widespread pattern of religiousdiscrimination in this country. Congress’concern was with the incidental burdens im-posed, not the object or purpose of the legis-lation. See House Report 2; Senate Report4–5; House Hearings 64 (statement of Na-dine Strossen); id., at 117–118 (statement ofRep. Stephen J. Solarz); 1990 House Hear-ing 14 (statement of Rep. Stephen J. Solarz).This lack of support in the legislative record,however, is not RFRA’s most serious short-coming. Judicial deference, in most cases, is


based not on the state of the legislative rec-ord Congress compiles but ‘‘on due regardfor the decision of the body constitutionallyappointed to decide.’’ Oregon v. Mitchell,400 U.S., at 207, 91 S.Ct., at 306–308 (opinionof Harlan, J.). As a genSeral532 matter, it isfor Congress to determine the method bywhich it will reach a decision.

[7] Regardless of the state of the legisla-tive record, RFRA cannot be considered re-medial, preventive legislation, if those termsare to have any meaning. RFRA is so out ofproportion to a supposed remedial or preven-tive object that it cannot be understood asresponsive to, or designed to prevent, uncon-stitutional behavior. It appears, instead, toattempt a substantive change in constitution-al protections. Preventive measures prohib-iting certain types of laws may be appropri-ate when there is reason to believe that manyof the laws affected by the congressionalenactment have a significant likelihood ofbeing unconstitutional. See City of Rome,446 U.S., at 177, 100 S.Ct., at 1562 (since‘‘jurisdictions with a demonstrable history ofintentional racial discrimination TTT createthe risk of purposeful discrimination,’’ Con-gress could ‘‘prohibit changes that have adiscriminatory impact’’ in those jurisdictions).Remedial legislation under § 5 ‘‘should beadapted to the mischief and wrong which the[Fourteenth] [A]mendment was intended toprovide against.’’ Civil Rights Cases, 109U.S., at 13, 3 S.Ct., at 23.

[8] RFRA is not so confined. Sweepingcoverage ensures its intrusion at every levelof government, displacing laws and prohibit-ing official actions of almost every descrip-tion and regardless of subject matter.RFRA’s restrictions apply to every agencyand official of the Federal, State, and localGovernments. 42 U.S.C. § 2000bb–2(1).RFRA applies to all federal and state law,statutory or otherwise, whether adopted be-fore or after its enactment. § 2000bb–3(a).RFRA has no termination date or termi-nation mechanism. Any law is subject tochallenge at any time by any individual whoalleges a substantial burden on his or herfree exercise of religion.

The reach and scope of RFRA distinguishit from other measures passed under Con-gress’ enforcement power, even in the area ofvoting rights. In South Carolina v. Katzen-bach, the challenged provisions were confinedto those reSgions533 of the country where vot-ing discrimination had been most flagrant,see 383 U.S., at 315, 86 S.Ct., at 811–812, andaffected a discrete class of state laws, i.e.,state voting laws. Furthermore, to ensurethat the reach of the Voting Rights Act waslimited to those cases in which constitutionalviolations were most likely (in order to re-duce the possibility of overbreadth), the cov-erage under the Act would terminate ‘‘at thebehest of States and political subdivisions inwhich the danger of substantial voting dis-crimination has not materialized during thepreceding five years.’’ Id., at 331, 86 S.Ct.,at 820. The provisions restricting and ban-ning literacy tests, upheld in Katzenbach v.Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16L.Ed.2d 828 (1966), and Oregon v. Mitchell,supra, attacked a particular type of votingqualification, one with a long history as a‘‘notorious means to deny and abridge votingrights on racial grounds.’’ South Carolina v.Katzenbach, 383 U.S., at 355, 86 S.Ct., at 832(Black, J., concurring and dissenting). InCity of Rome, supra, the Court rejected achallenge to the constitutionality of a VotingRights Act provision which required certainjurisdictions to submit changes in electoralpractices to the Department of Justice forpreimplementation review. The requirementwas placed only on jurisdictions with a histo-ry of intentional racial discrimination in vot-ing. Id., at 177, 100 S.Ct., at 1561–1562.Like the provisions at issue in South Car-olina v. Katzenbach, this provision permitteda covered jurisdiction to avoid preclearancerequirements under certain conditions and,moreover, lapsed in seven years. This is notto say, of course, that § 5 legislation requirestermination dates, geographic restrictions, oregregious predicates. Where, however, acongressional enactment pervasively prohib-its constitutional state action in an effort toremedy or to prevent unconstitutional stateaction, limitations of this kind tend to ensure


521 U.S. 535

Congress’ means are proportionate to endslegitimate under § 5.

The stringent test RFRA demands of statelaws reflects a lack of proportionality or con-gruence between the means adopted and thelegitimate end to be achieved. If an objectorcan show a substantial burden on his freeexercise, the S 534State must demonstrate acompelling governmental interest and showthat the law is the least restrictive means offurthering its interest. Claims that a lawsubstantially burdens someone’s exercise ofreligion will often be difficult to contest. SeeSmith, 494 U.S., at 887, 110 S.Ct., at 1604(‘‘What principle of law or logic can bebrought to bear to contradict a believer’sassertion that a particular act is ‘central’ tohis personal faith?’’); id., at 907, 110 S.Ct., at1615 (‘‘The distinction between questions ofcentrality and questions of sincerity and bur-den is admittedly fine TTT’’) (O’CONNOR, J.,concurring in judgment). Requiring a Stateto demonstrate a compelling interest andshow that it has adopted the least restrictivemeans of achieving that interest is the mostdemanding test known to constitutional law.If ‘‘ ‘compelling interest’ really means what itsays TTT, many laws will not meet thetestTTTT [The test] would open the prospectof constitutionally required religious exemp-tions from civic obligations of almost everyconceivable kind.’’ Id., at 888, 110 S.Ct., at1605. Laws valid under Smith would fallunder RFRA without regard to whether theyhad the object of stifling or punishing freeexercise. We make these observations not toreargue the position of the majority in Smithbut to illustrate the substantive alteration ofits holding attempted by RFRA. Even as-suming RFRA would be interpreted in effectto mandate some lesser test, say, one equiva-lent to intermediate scrutiny, the statute nev-ertheless would require searching judicialscrutiny of state law with the attendant like-lihood of invalidation. This is a considerablecongressional intrusion into the States’ tradi-tional prerogatives and general authority toregulate for the health and welfare of theircitizens.

The substantial costs RFRA exacts, bothin practical terms of imposing a heavy litiga-tion burden on the States and in terms of

curtailing their traditional general regulatorypower, far exceed any pattern or practice ofunconstitutional conduct under the Free Ex-ercise Clause as interpreted in Smith. Sim-ply put, RFRA is not designed to identifyand counteract state laws likely to be uncon-stitutional because of S 535their treatment ofreligion. In most cases, the state laws towhich RFRA applies are not ones which willhave been motivated by religious bigotry. Ifa state law disproportionately burdened aparticular class of religious observers, thiscircumstance might be evidence of an imper-missible legislative motive. Cf. Washingtonv. Davis, 426 U.S. 229, 241, 96 S.Ct. 2040,2048, 48 L.Ed.2d 597 (1976). RFRA’s sub-stantial-burden test, however, is not even adiscriminatory effects or disparate-impacttest. It is a reality of the modern regulatorystate that numerous state laws, such as thezoning regulations at issue here, impose asubstantial burden on a large class of individ-uals. When the exercise of religion has beenburdened in an incidental way by a law ofgeneral application, it does not follow thatthe persons affected have been burdened anymore than other citizens, let alone burdenedbecause of their religious beliefs. In addi-tion, the Act imposes in every case a leastrestrictive means requirement—a require-ment that was not used in the pre-Smithjurisprudence RFRA purported to codify—which also indicates that the legislation isbroader than is appropriate if the goal is toprevent and remedy constitutional violations.

When Congress acts within its sphere ofpower and responsibilities, it has not just theright but the duty to make its own informedjudgment on the meaning and force of theConstitution. This has been clear from theearly days of the Republic. In 1789, when aMember of the House of Representativesobjected to a debate on the constitutionalityof legislation based on the theory that ‘‘itwould be officious’’ to consider the constitu-tionality of a measure that did not affect theHouse, James Madison explained that ‘‘it isincontrovertibly of as much importance tothis branch of the Government as to anyother, that the constitution should be pre-served entire. It is our duty.’’ 1 Annals ofCongress 500 (1789). Were it otherwise, we


would not afford Congress the presumptionof validity its enactments now enjoy.

Our national experience teaches that theConstitution is preserved best when eachpart of the Government respects S 536both theConstitution and the proper actions and de-terminations of the other branches. Whenthe Court has interpreted the Constitution, ithas acted within the province of the JudicialBranch, which embraces the duty to say whatthe law is. Marbury v. Madison, 1 Cranch,at 177, 2 L.Ed. 60. When the politicalbranches of the Government act against thebackground of a judicial interpretation of theConstitution already issued, it must be un-derstood that in later cases and controversiesthe Court will treat its precedents with therespect due them under settled principles,including stare decisis, and contrary expecta-tions must be disappointed. RFRA was de-signed to control cases and controversies,such as the one before us; but as the provi-sions of the federal statute here invoked arebeyond congressional authority, it is thisCourt’s precedent, not RFRA, which mustcontrol.

* * *

It is for Congress in the first instance to‘‘determin[e] whether and what legislation isneeded to secure the guarantees of the Four-teenth Amendment,’’ and its conclusions areentitled to much deference. Katzenbach v.Morgan, 384 U.S., at 651, 86 S.Ct., at 1723–1724. Congress’ discretion is not unlimited,however, and the courts retain the power, asthey have since Marbury v. Madison, todetermine if Congress has exceeded its au-thority under the Constitution. Broad as thepower of Congress is under the EnforcementClause of the Fourteenth Amendment,RFRA contradicts vital principles necessaryto maintain separation of powers and thefederal balance. The judgment of the Courtof Appeals sustaining the Act’s constitution-ality is reversed.

It is so ordered.

Justice STEVENS, concurring.

In my opinion, the Religious Freedom Res-toration Act of 1993 (RFRA) is a ‘‘law re-specting an establishment of religion’’ that

violates the First Amendment to the Consti-tution.

S 537If the historic landmark on the hill inBoerne happened to be a museum or an artgallery owned by an atheist, it would not beeligible for an exemption from the city ordi-nances that forbid an enlargement of thestructure. Because the landmark is ownedby the Catholic Church, it is claimed thatRFRA gives its owner a federal statutoryentitlement to an exemption from a generallyapplicable, neutral civil law. Whether theChurch would actually prevail under the stat-ute or not, the statute has provided theChurch with a legal weapon that no atheistor agnostic can obtain. This governmentalpreference for religion, as opposed to irreli-gion, is forbidden by the First Amendment.Wallace v. Jaffree, 472 U.S. 38, 52–55, 105S.Ct. 2479, 2487–2489, 86 L.Ed.2d 29 (1985).

Justice SCALIA, with whom JusticeSTEVENS joins, concurring in part.

I write to respond briefly to the claim ofJustice O’CONNOR’s dissent (hereinafter‘‘the dissent’’) that historical materials sup-port a result contrary to the one reached inEmployment Div., Dept. of Human Re-sources of Oregon v. Smith, 494 U.S. 872, 110S.Ct. 1595, 108 L.Ed.2d 876 (1990). See post,p. 2176 (dissenting opinion). We held inSmith that the Constitution’s Free ExerciseClause ‘‘does not relieve an individual of theobligation to comply with a ‘valid and neutrallaw of general applicability on the groundthat the law proscribes (or prescribes) con-duct that his religion prescribes (or pro-scribes).’ ’’ 494 U.S., at 879, 110 S.Ct., at1600 (quoting United States v. Lee, 455 U.S.252, 263, n. 3, 102 S.Ct. 1051, 1059, n. 3, 71L.Ed.2d 127 (1982) (STEVENS, J., concur-ring in judgment)). The material that thedissent claims is at odds with Smith eitherhas little to say about the issue or is in factmore consistent with Smith than with thedissent’s interpretation of the Free ExerciseClause. The dissent’s extravagant claim thatthe historical record shows Smith to havebeen wrong should be compared with theassessment of the most prominent scholarlycritic of Smith, who, after an extensive re-view of the historical record, was willing toventure no more than that ‘‘constituStionally538


521 U.S. 540

compelled exemptions [from generally appli-cable laws regulating conduct] were withinthe contemplation of the framers and ratifi-ers as a possible interpretation of the freeexercise clause.’’ McConnell, The Originsand Historical Understanding of Free Exer-cise of Religion, 103 Harv. L.Rev. 1409, 1415(1990) (emphasis added); see also Hamburg-er, A Constitutional Right of Religious Ex-emption: An Historical Perspective, 60 Geo.Wash. Law Rev. 915 (1992) (arguing thathistorical evidence supports Smith ’s inter-pretation of free exercise).

The dissent first claims that Smith ’s inter-pretation of the Free Exercise Clause de-parts from the understanding reflected invarious statutory and constitutional protec-tions of religion enacted by Colonies, States,and Territories in the period leading up tothe ratification of the Bill of Rights. Post, at2179–2182. But the protections afforded bythose enactments are in fact more consistentwith Smith ’s interpretation of free exercisethan with the dissent’s understanding of it.The Free Exercise Clause, the dissentclaims, ‘‘is best understood as an affirmativeguarantee of the right to participate in reli-gious practices and conduct without imper-missible governmental interference, evenwhen such conduct conflicts with a neutral,generally applicable law’’; thus, even neutrallaws of general application may be invalid ifthey burden religiously motivated conduct.Post, at 2177. However, the early ‘‘free exer-cise’’ enactments cited by the dissent protectonly against action that is taken ‘‘for’’ or ‘‘inrespect of’’ religion, post, at 2179–2180 (Ma-ryland Act Concerning Religion of 1649,Rhode Island Charter of 1663, and NewHampshire Constitution); or action taken‘‘on account of’’ religion, post, at 2180 (Mary-land Declaration of Rights of 1776 andNorthwest Ordinance of 1787); or ‘‘discrimi-nat[ory]’’ action, post, at 2180 (New YorkConstitution); or, finally (and unhelpfully forpurposes of interpreting ‘‘free exercise’’ inthe Federal Constitution), action that inter-feres with the ‘‘free exercise’’ of religion,post, at 2179, 2180 (Maryland ActS 539Concerning Religion of 1649 and GeorgiaConstitution). It is eminently arguable that

application of neutral, generally applicablelaws of the sort the dissent refers to—suchas zoning laws, post, at 2177—would not con-stitute action taken ‘‘for,’’ ‘‘in respect of,’’ or‘‘on account of’’ one’s religion, or ‘‘discrimina-tory’’ action.

Assuming, however, that the affirmativeprotection of religion accorded by the early‘‘free exercise’’ enactments sweeps as broadlyas the dissent’s theory would require, thoseenactments do not support the dissent’s view,since they contain ‘‘provisos’’ that significant-ly qualify the affirmative protection theygrant. According to the dissent, the ‘‘provi-sos’’ support its view because they wouldhave been ‘‘superfluous’’ if ‘‘the Court wascorrect in Smith that generally applicablelaws are enforceable regardless of religiousconscience.’’ Post, at 2180–2181. I disagree.In fact, the most plausible reading of the‘‘free exercise’’ enactments (if their affirma-tive provisions are read broadly, as the dis-sent’s view requires) is a virtual restatementof Smith: Religious exercise shall be permit-ted so long as it does not violate generallaws governing conduct. The ‘‘provisos’’ inthe enactments negate a license to act in amanner ‘‘unfaithfull to the Lord Proprietary’’(Maryland Act Concerning Religion of 1649),or ‘‘behav[e]’’ in other than a ‘‘peaceabl[e]and quie[t]’’ manner (Rhode Island Charterof 1663), or ‘‘disturb the public peace’’ (NewHampshire Constitution), or interfere withthe ‘‘peace [and] safety of th[e] State’’ (NewYork, Maryland, and Georgia Constitutions),or ‘‘demea[n]’’ oneself in other than a ‘‘peace-able and orderly manner’’ (Northwest Ordi-nance of 1787). See post, at 2179–2181. Atthe time these provisos were enacted, keep-ing ‘‘peace’’ and ‘‘order’’ seems to havemeant, precisely, obeying the laws. ‘‘[E]verybreach of a law is against the peace.’’ Queenv. Lane, 6 Mod. 128, 87 Eng. Rep. 884, 885(Q.B.1704). Even as late as 1828, whenNoah Webster published his American Dic-tionary of the English Language, he gave asone of the meanings of ‘‘peace’’: ‘‘8. PublicS 540tranquility; that quiet, order and securitywhich is guaranteed by the laws; as, to keepthe peace; to break the peace.’’ 2 An Ameri-can Dictionary of the English Language 31


(1828).1 This limitation upon the scope ofreligious exercise would have been in accordwith the background political philosophy ofthe age (associated most prominently withJohn Locke), which regarded freedom as theright ‘‘to do only what was not lawfully pro-hibited,’’ West, The Case Against a Right toReligion–Based Exemptions, 4 Notre DameJ. L., Ethics & Pub. Pol’y 591, 624 (1990).‘‘Thus, the disturb-the-peace caveats appar-ently permitted government to deny religiousfreedom, not merely in the event of violenceor force, but, more generally, upon the occur-rence of illegal actions.’’ Hamburger, supra,at 918–919.2 And while, under this interpre-tation, these early ‘‘free exercise’’ enactmentssupport the Court’s judgment in Smith, I seeno sensible interpretation that could causethem to support what I understand to be theposition of Justice O’CONNOR, or any ofSmith ’s other critics. No one in that camp,to my knowledge, contends that their favored‘‘compelling state interest’’ test conforms toany possible interpretation of ‘‘breach ofpeace and order’’—i.e., that only violence orforce, or any other category of action (morelimited than ‘‘violation of law’’) which canpossibly be conveyed by the phrase ‘‘peaceand order,’’ justifies state prohibition of reli-giously motivated conduct.

S 541Apart from the early ‘‘free exercise’’enactments of Colonies, States, and Territo-ries, the dissent calls attention to those bod-ies’, and the Continental Congress’s, legisla-tive accommodation of religious practicesprior to ratification of the Bill of Rights.Post, at 2182–2183. This accommodation—which took place both before and after en-actment of the state constitutional protec-tions of religious liberty—suggests (accord-ing to the dissent) that ‘‘the drafters andratifiers of the First Amendment TTT as-

sumed courts would apply the Free ExerciseClause similarly.’’ Post, at 2183. But thatlegislatures sometimes (though not always) 3

found it ‘‘appropriate,’’ ibid., to accommodatereligious practices does not establish thataccommodation was understood to be consti-tutionally mandated by the Free ExerciseClause. As we explained in Smith, ‘‘to saythat a nondiscriminatory religious-practiceexemption is permitted, or even that it isdesirable, is not to say that it is constitution-ally required.’’ 494 U.S., at 890, 110 S.Ct.,at 1606. ‘‘Values that are protected againstgovernment interference through enshrine-ment in the Bill of Rights are not therebybanished from the political process.’’ Ibid.

The dissent’s final source of claimed histor-ical support consists of statements of certainof the Framers in the context of debatesabout proposed legislative enactments or de-bates over general principles (not in connec-tion with the drafting of State or FederalConstitutions). Those statements are sub-ject to the same objection as was the evi-dence about legislative accommodation:There is no reason to think they were meantto describe what was constitutionally re-quired (and judicially enforceable), as op-posed to what was thought to be legislativelyor even morally desirable. Thus, for exam-ple, the pamphlet written by James Madisonopposing Virginia’s proposed general assess-ment for support of reliSgion,542 post, at 2183–2184, does not argue that the assessmentwould violate the ‘‘free exercise’’ provision inthe Virginia Declaration of Rights, althoughthat provision had been enacted into law onlyeight years earlier, post, at 2182; rather thepamphlet argues that the assessment wrong-ly placed civil society ahead of personal reli-gious belief and, thus, should not be ap-

1. The word ‘‘licentious,’’ used in several of theearly enactments, likewise meant ‘‘[e]xceedingthe limits of law.’’ 2 An American Dictionary ofthe English Language 6 (1828).

2. The same explanation applies, of course, toGeorge Mason’s initial draft of Virginia’s reli-gious liberty clause, see post, at 2181. When itsaid ‘‘unless, under colour of religion, any mandisturb the peace TTT of society,’’ it probablymeant ‘‘unless under color of religion any manbreak the law.’’ Thus, it is not the case that‘‘both Mason’s and [James] Madison’s formula-

tions envisioned that, when there was a conflict[between religious exercise and generally appli-cable laws], a person’s interest in freely practic-ing his religion was to be balanced against stateinterests,’’ post, at 2181 at least insofar as regula-tion of conduct was concerned.

3. The dissent mentions, for example, that only 7of the 13 Colonies had exempted Quakers frommilitary service by the mid–1700’s; and that ‘‘vir-tually all’’ of the States had enacted oath exemp-tions by 1789. Post, at 2182–2183 (emphasisadded).


521 U.S. 544

proved by the legislators, post, at 2183.Likewise, the letter from George Washingtonto the Quakers, post, at 2184, by its ownterms refers to Washington’s ‘‘wish and de-sire’’ that religion be accommodated, not hisbelief that existing constitutional provisionsrequired accommodation. These and otherexamples offered by the dissent reflect thespeakers’ views of the ‘‘proper’’ relationshipbetween government and religion, post, at2185, but not their views (at least insofar asthe content or context of the material sug-gests) of the constitutionally required rela-tionship. The one exception is the statementby Thomas Jefferson that he considered ‘‘thegovernment of the United States as interdict-ed by the Constitution from intermeddlingwith religious institutions, their doctrines,discipline, or exercises,’’ post, at 2184 (inter-nal quotation marks omitted); but it is quiteclear that Jefferson did not in fact espousethe broad principle of affirmative accommo-dation advocated by the dissent, see McCon-nell, 103 Harv. L.Rev., at 1449–1452.

It seems to me that the most telling pointmade by the dissent is to be found, not inwhat it says, but in what it fails to say. Hadthe understanding in the period surroundingthe ratification of the Bill of Rights been thatthe various forms of accommodation dis-cussed by the dissent were constitutionallyrequired (either by State Constitutions or bythe Federal Constitution), it would be sur-prising not to find a single state or federalcase refusing to enforce a generally applica-ble statute because of its failure to makeaccommodation. Yet the dissent citesnone—and to my knowledge, and to theknowledge of the academic defenders of thedissent’s position, see, e.g., id., at 1504, 1506–1511 (discussing early S 543cases), none exists.The closest one can come in the period priorto 1850 is the decision of a New York Citymunicipal court in 1813, holding that the New

York Constitution of 1777, quoted post, at2180, required acknowledgment of a priest-penitent privilege, to protect a Catholicpriest from being compelled to testify as tothe contents of a confession. People v. Phil-lips, Court of General Sessions, City of NewYork (June 14, 1813), excerpted in PrivilegedCommunications to Clergymen, 1 Cath. Law.199 (1955). Even this lone case is weakauthority, not only because it comes from aminor court,4 but also because it did notinvolve a statute, and the same result mightpossibly have been achieved (without invok-ing constitutional entitlement) by the court’ssimply modifying the common-law rules ofevidence to recognize such a privilege. Onthe other side of the ledger, moreover, thereare two cases, from the Supreme Court ofPennsylvania, flatly rejecting the dissent’sview. In Philips v. Gratz, 2 Pen. & W. 412(Pa.1831), the court held that a litigant wasnot entitled to a continuance of trial on theground that appearing on his Sabbath wouldviolate his religious principles. And inStansbury v. Marks, 2 Dall. 213, 1 L.Ed. 353(Pa.1793), decided just two years after theratification of the Bill of Rights, the courtimposed a fine on a witness who ‘‘refused tobe sworn, because it was his Sabbath.’’ 5

I have limited this response to the newitems of ‘‘historical evidence’’ brought for-ward by today’s dissent. (The disSsent’s544

claim that ‘‘[b]efore Smith, our free exercisecases were generally in keeping’’ with thedissent’s view, post, at 2177, is adequatelyanswered in Smith itself.) The historicalevidence marshalled by the dissent cannotfairly be said to demonstrate the correctnessof Smith; but it is more supportive of thatconclusion than destructive of it. And, toreturn to a point I made earlier, that evi-dence is not compatible with any theory I amfamiliar with that has been proposed as an

4. The Court of General Sessions was a mayor’scourt, and the ruling in Phillips was made byDeWitt Clinton, the last mayor to preside overthat court, which was subsequently reconstitutedas the Court of Common Pleas. Clinton hadnever been a jurist, and indeed had never prac-ticed law. Some years before Phillips, he wasinstrumental in removing the political disabilitiesof Catholics in New York. See 4 Dictionary ofAmerican Biography 221–222, 224 (1943).

5. Indeed, the author of Philips could well havewritten Smith: ‘‘[C]onsiderations of policy ad-dress themselves with propriety to the legisla-ture, and not to a magistrate whose course isprescribed not by discretion, but rules alreadyestablished.’’ 2 Pen. & W., at 417.


alternative to Smith. The dissent’s approachhas, of course, great popular attraction.Who can possibly be against the abstractproposition that government should not, evenin its general, nondiscriminatory laws, placeunreasonable burdens upon religious prac-tice? Unfortunately, however, that abstractproposition must ultimately be reduced toconcrete cases. The issue presented bySmith is, quite simply, whether the people,through their elected representatives, orrather this Court, shall control the outcomeof those concrete cases. For example, shallit be the determination of this Court, orrather of the people, whether (as the dissentapparently believes, post, at 2177) churchconstruction will be exempt from zoninglaws? The historical evidence put forwardby the dissent does nothing to undermine theconclusion we reached in Smith: It shall bethe people.

Justice O’CONNOR, with whom JusticeBREYER joins except as to the firstparagraph of Part I, dissenting.

I dissent from the Court’s disposition ofthis case. I agree with the Court that theissue before us is whether the ReligiousFreedom Restoration Act of 1993 (RFRA) isa proper exercise of Congress’ power to en-force § 5 of the Fourteenth Amendment.But as a yardstick for measuring the consti-tutionality of RFRA, the Court uses its hold-ing in Employment Div., Dept. of HumanResources of Oregon v. Smith, 494 U.S. 872,110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), thedecision that prompted Congress to enactRFRA as a means of more rigorously enforc-ing the Free Exercise Clause. I remain ofthe view that Smith S 545was wrongly decided,and I would use this case to reexamine theCourt’s holding there. Therefore, I woulddirect the parties to brief the questionwhether Smith represents the correct under-standing of the Free Exercise Clause and setthe case for reargument. If the Court wereto correct the misinterpretation of the FreeExercise Clause set forth in Smith, it wouldsimultaneously put our First Amendment ju-risprudence back on course and allay thelegitimate concerns of a majority in Congresswho believed that Smith improperly restrict-

ed religious liberty. We would then be in aposition to review RFRA in light of a properinterpretation of the Free Exercise Clause.

II agree with much of the reasoning set

forth in Part III–A of the Court’s opinion.Indeed, if I agreed with the Court’s standardin Smith, I would join the opinion. As theCourt’s careful and thorough historical analy-sis shows, Congress lacks the ‘‘power to de-cree the substance of the Fourteenth Amend-ment’s restrictions on the States.’’ Ante, at2164 (emphasis added). Rather, its powerunder § 5 of the Fourteenth Amendmentextends only to enforcing the Amendment’sprovisions. In short, Congress lacks theability independently to define or expand thescope of constitutional rights by statute. Ac-cordingly, whether Congress has exceededits § 5 powers turns on whether there is a‘‘congruence and proportionality between theinjury to be prevented or remedied and themeans adopted to that end.’’ Ante, at 2164.This recognition does not, of course, in anyway diminish Congress’ obligation to draw itsown conclusions regarding the Constitution’smeaning. Congress, no less than this Court,is called upon to consider the requirementsof the Constitution and to act in accordancewith its dictates. But when it enacts legisla-tion in furtherance of its delegated powers,Congress must make its judgments consis-tent with this Court’s exposition of the Con-stitution and with the limSits546 placed on itslegislative authority by provisions such as theFourteenth Amendment.

The Court’s analysis of whether RFRA is aconstitutional exercise of Congress’ § 5 pow-er, set forth in Part III–B of its opinion, ispremised on the assumption that Smith cor-rectly interprets the Free Exercise Clause.This is an assumption that I do not accept. Icontinue to believe that Smith adopted animproper standard for deciding free exerciseclaims. In Smith, five Members of thisCourt—without briefing or argument on theissue—interpreted the Free Exercise Clauseto permit the government to prohibit, with-out justification, conduct mandated by anindividual’s religious beliefs, so long as theprohibition is generally applicable. Contrary


521 U.S. 548

to the Court’s holding in that case, however,the Free Exercise Clause is not simply anantidiscrimination principle that protectsonly against those laws that single out reli-gious practice for unfavorable treatment.See Smith, supra, at 892–903, 110 S.Ct., at1607–1613 (O’CONNOR, J., concurring injudgment). Rather, the Clause is best un-derstood as an affirmative guarantee of theright to participate in religious practices andconduct without impermissible governmentalinterference, even when such conduct con-flicts with a neutral, generally applicable law.Before Smith, our free exercise cases weregenerally in keeping with this idea: where alaw substantially burdened religiously moti-vated conduct—regardless whether it wasspecifically targeted at religion or appliedgenerally—we required government to justi-fy that law with a compelling state interestand to use means narrowly tailored toachieve that interest. See 494 U.S., at 894,110 S.Ct., at 1608 (citing Hernandez v. Com-missioner, 490 U.S. 680, 699, 109 S.Ct. 2136,2148–2149, 104 L.Ed.2d 766 (1989); Hobbie v.Unemployment Appeals Comm’n of Fla., 480U.S. 136, 141, 107 S.Ct. 1046, 1049, 94L.Ed.2d 190 (1987); United States v. Lee,455 U.S. 252, 257–258, 102 S.Ct. 1051, 1055–1056, 71 L.Ed.2d 127 (1982); McDaniel v.Paty, 435 U.S. 618, 626–629, 98 S.Ct. 1322,1327–1329, 55 L.Ed.2d 593 (1978); Wisconsinv. Yoder, 406 U.S. 205, 215, 92 S.Ct. 1526,1533, 32 L.Ed.2d 15 (1972); Gillette v. UnitedStates, 401 U.S. 437, 462, 91 S.Ct. 828, 842–843, 28 L.Ed.2d 168 (1971); Sherbert v. Ver-ner, 374 U.S. 398, 403, 83 S.Ct. 1790, 1793–1794, 10 L.Ed.2d 965 (1963)).

S 547The Court’s rejection of this principle inSmith is supported neither by precedent nor,as discussed below, by history. The decisionhas harmed religious liberty. For example, aFederal District Court, in reliance on Smith,ruled that the Free Exercise Clause was notimplicated where Hmong natives objected onreligious grounds to their son’s autopsy, con-ducted pursuant to a generally applicablestate law. Yang v. Sturner, 750 F.Supp. 558,559 (D.R.I. 1990). The Court of Appeals forthe Eighth Circuit held that application of acity’s zoning laws to prevent a church fromconducting services in an area zoned for com-

mercial uses raised no free exercise concerns,even though the city permitted secular not-for-profit organizations in that area. Corner-stone Bible Church v. Hastings, 948 F.2d 464(1991); see also Rector of St. Bartholomew’sChurch v. City of New York, 914 F.2d 348,355 (C.A.2 1990) (no free exercise claimwhere city’s application of facially neutrallandmark designation law ‘‘drastically re-stricted the Church’s ability to raise revenueto carry out its various charitable and minis-terial programs’’), cert. denied, 499 U.S. 905,111 S.Ct. 1103, 113 L.Ed.2d 214 (1991); Statev. Hershberger, 462 N.W.2d 393 (Minn.1990)(Free Exercise Clause provided no basis forexempting an Amish farmer from displayinga bright orange triangle on his buggy, towhich the farmer objected on religiousgrounds, even though the evidence showedthat some other material would have servedthe State’s purpose equally well). Thesecases demonstrate that lower courts applyingSmith no longer find necessary a searchingjudicial inquiry into the possibility of reason-ably accommodating religious practice.

Stare decisis concerns should not preventus from revisiting our holding in Smith.‘‘ ‘[S]tare decisis is a principle of policy andnot a mechanical formula of adherence to thelatest decision, however recent and question-able, when such adherence involves collisionwith a prior doctrine more embracing in itsscope, intrinsically sounder, and verified byexperience.’ ’’ Adarand Constructors, Inc. v.Pena, 515 U.S. S 548200, 231, 115 S.Ct. 2097,2114–2115, 132 L.Ed.2d 158 (1995) (quotingHelvering v. Hallock, 309 U.S. 106, 119, 60S.Ct. 444, 451–452, 84 L.Ed. 604 (1940)).This principle is particularly true in constitu-tional cases, where—as this case so plainlyillustrates—‘‘correction through legislativeaction is practically impossible.’’ SeminoleTribe of Fla. v. Florida, 517 U.S. 44, 63, 116S.Ct. 1114, 1127, 134 L.Ed.2d 252 (1996) (in-ternal quotation marks and citation omitted).I believe that, in light of both our precedentand our Nation’s tradition of religious liberty,Smith is demonstrably wrong. Moreover, itis a recent decision. As such, it has notengendered the kind of reliance on its contin-ued application that would militate againstoverruling it. Cf. Planned Parenthood of


Southeastern Pa. v. Casey, 505 U.S. 833,855–856, 112 S.Ct. 2791, 2808–2809, 120L.Ed.2d 674 (1992).

Accordingly, I believe that we should reex-amine our holding in Smith, and do so in thisvery case. In its place, I would return to arule that requires government to justify anysubstantial burden on religiously motivatedconduct by a compelling state interest and toimpose that burden only by means narrowlytailored to achieve that interest.

III shall not restate what has been said in

other opinions, which have demonstrated thatSmith is gravely at odds with our earlier freeexercise precedents. See Church of LukumiBabalu Aye, Inc. v. Hialeah, 508 U.S. 520,570–571, 113 S.Ct. 2217, 2246–2247, 124L.Ed.2d 472 (1993) (SOUTER, J., concurringin part and concurring in judgment) (statingthat it is ‘‘difficult to escape the conclusionthat, whatever Smith ’s virtues, they do notinclude a comfortable fit with settled law’’);Smith, 494 U.S., at 894–901, 110 S.Ct., at1608–1612 (O’CONNOR, J., concurring injudgment); see also McConnell, Free Exer-cise Revisionism and the Smith Decision, 57U. Chi. L.Rev. 1109, 1120–1127 (1990).Rather, I examine here the early Americantradition of religious free exercise to gaininsight into the original understanding of theFree Exercise Clause—an inquiry the Courtin Smith did not undertake. We have previ-ously recognized the importance of interpret-ing the Religion Clauses in light of theirhistory. Lynch v. Donnelly, 465 U.S. 668,673, 104 S.Ct. 1355, 1359, 79 L.Ed.2d 604(1984) (‘‘The Court’s S 549interpretation of theEstablishment Clause has comported withwhat history reveals was the contemporane-ous understanding of its guarantees’’);School Dist. of Abington Township v.Schempp, 374 U.S. 203, 212–214, 83 S.Ct.1560, 1565–1567, 10 L.Ed.2d 844 (1963).

The historical evidence casts doubt on theCourt’s current interpretation of the FreeExercise Clause. The record instead revealsthat its drafters and ratifiers more likelyviewed the Free Exercise Clause as a guar-antee that government may not unnecessari-ly hinder believers from freely practicing

their religion, a position consistent with ourpre-Smith jurisprudence.

AThe original Constitution, drafted in 1787

and ratified by the States in 1788, had noprovisions safeguarding individual liberties,such as freedom of speech or religion. Fed-eralists, the chief supporters of the newConstitution, took the view that amendingthe Constitution to explicitly protect individ-ual freedoms was superfluous, since therights that the amendments would protectwere already completely secure. See, e.g., 1Annals of Congress 440, 443–444, 448–459(Gales and Seaton ed. 1834) (remarks ofJames Madison, June 8, 1789). Moreover,they feared that guaranteeing certain civilliberties might backfire, since the expressmention of some freedoms might imply thatothers were not protected. According to Al-exander Hamilton, a Bill of Rights wouldeven be dangerous, in that by specifying‘‘various exceptions to powers’’ not granted,it ‘‘would afford a colorable pretext to claimmore than were granted.’’ The FederalistNo. 84, p. 513 (C. Rossiter ed.1961). Anti–Federalists, however, insisted on more defi-nite guarantees. Apprehensive that thenewly established Federal Governmentwould overwhelm the rights of States andindividuals, they wanted explicit assurancesthat the Federal Government had no powerin matters of personal liberty. T. Curry,The First Freedoms: Church and State inAmerica to the Passage of the First Amend-ment 194 (1986). Additionally, Baptists andother Protestant dissenters feared for theirreligious liberty under S 550the new FederalGovernment and called for an amendmentguaranteeing religious freedom. Id., at 198.

In the end, legislators acceded to thesedemands. By December 1791, the Bill ofRights had been added to the Constitution.With respect to religious liberty, the FirstAmendment provided: ‘‘Congress shall makeno law respecting an establishment of reli-gion, or prohibiting the free exercise there-of.’’ U.S. Const., Amdt. 1. Neither the FirstCongress nor the ratifying state legislaturesdebated the question of religious freedom inmuch detail, nor did they directly consider


521 U.S. 552

the scope of the First Amendment’s freeexercise protection. It would be disingenu-ous to say that the Framers neglected todefine precisely the scope of the Free Exer-cise Clause because the words ‘‘free exercise’’had a precise meaning. L. Levy, Essays onAmerican Constitutional History 173 (1972).As is the case for a number of the termsused in the Bill of Rights, it is not exactlyclear what the Framers thought the phrasesignified. Ibid. (‘‘[I]t is astonishing to dis-cover that the debate on a Bill of Rights wasconducted on a level of abstraction so vagueas to convey the impression that Americansof 1787–1788 had only the most nebulousconception of the meanings of the particularrights they sought to insure’’). But a varietyof sources supplement the legislative historyand shed light on the original understandingof the Free Exercise Clause. These materi-als suggest that—contrary to Smith—theFramers did not intend simply to prevent thegovernment from adopting laws that discrim-inated against religion. Although the Fram-ers may not have asked precisely the ques-tions about religious liberty that we do today,the historical record indicates that they be-lieved that the Constitution affirmatively pro-tects religious free exercise and that it limitsthe government’s ability to intrude on reli-gious practice.

BThe principle of religious ‘‘free exercise’’

and the notion that religious liberty deservedlegal protection were by no S 551means newconcepts in 1791, when the Bill of Rights wasratified. To the contrary, these principleswere first articulated in this country in theColonies of Maryland, Rhode Island, Penn-sylvania, Delaware, and Carolina, in the mid–1600’s. These Colonies, though establishedas sanctuaries for particular groups of reli-gious dissenters, extended freedom of reli-gion to groups—although often limited toChristian groups—beyond their own. Thus,they encountered early on the conflicts thatmay arise in a society made up of a pluralityof faiths.

The term ‘‘free exercise’’ appeared in anAmerican legal document as early as 1648,when Lord Baltimore extracted from the new

Protestant Governor of Maryland and hiscouncilors a promise not to disturb Chris-tians, particularly Roman Catholics, in the‘‘free exercise’’ of their religion. McConnell,The Origins and Historical Understanding ofFree Exercise of Religion, 103 Harv. L.Rev.1409, 1425 (1990) (hereinafter Origins of FreeExercise). Soon after, in 1649, the MarylandAssembly enacted the first free exerciseclause by passing the Act Concerning Reli-gion: ‘‘[N]oe person TTT professing to beleivein Jesus Christ, shall from henceforth beeany waies troubled, Molested or discounte-nanced for or in respect of his or her religionnor in the free exercise thereof TTT nor anyway [be] compelled to the beleife or exerciseof any other Religion against his or herconsent, soe as they be not unfaithfull to theLord Proprietary, or molest or conspireagainst the civill Governemt.’’ Act Concern-ing Religion of 1649, reprinted in 5 TheFounders’ Constitution 49, 50 (P. Kurland &R. Lerner eds.1987) (hereinafter Founders’Constitution). Rhode Island’s Charter of1663 used the analogous term ‘‘liberty ofconscience.’’ It protected residents from be-ing in any ways ‘‘molested, punished, dis-quieted, or called in question, for any differ-ences in opinione, in matters of religion, anddoe not actually disturb the civil peace of oursayd colony.’’ The Charter further providedthat residents may ‘‘freely, and fully haveand enjoy his and their own judgments, andconscience in matters of religiousS 552concernments TTT; they behaving them-selves peaceably and quietly and not usingthis liberty to licentiousness and profaneness;nor to the civil injury, or outward distur-bance of others.’’ Charter of Rhode Islandand Providence Plantations, 1663, in 8 W.Swindler, Sources and Documents of UnitedStates Constitutions 363 (1979) (hereinafterSwindler). Various agreements betweenprospective settlers and the proprietors ofCarolina, New York, and New Jersey simi-larly guaranteed religious freedom, usinglanguage that paralleled that of the RhodeIsland Charter of 1663. See New York ActDeclaring Rights & Priviledges (1691); Con-cession and Agreement of the Lords Propri-etors of the Province of New Caesarea, orNew–Jersey (1664); Laws of West New–Jersey, Art. X (1681); Fundamental Consti-


tutions for East New–Jersey, Art. XVI(1683); First Charter of Carolina, Art. XVIII(1663). N. Cogan, The Complete Bill ofRights 23–27 (Galley 1997).

These documents suggest that, early in ourcountry’s history, several Colonies acknowl-edged that freedom to pursue one’s chosenreligious beliefs was an essential liberty.Moreover, these Colonies appeared to recog-nize that government should interfere in reli-gious matters only when necessary to protectthe civil peace or to prevent ‘‘licentiousness.’’In other words, when religious beliefs con-flicted with civil law, religion prevailed unlessimportant state interests militated otherwise.Such notions parallel the ideas expressed inour pre-Smith cases—that government maynot hinder believers from freely exercisingtheir religion, unless necessary to further asignificant state interest.

CThe principles expounded in these early

charters re-emerged over a century later instate constitutions that were adopted in theflurry of constitution drafting that followedthe American Revolution. By 1789, everyState but Connecticut had incorporated someversion of a free exercise S 553clause into itsconstitution. Origins of Free Exercise 1455.These state provisions, which were typicallylonger and more detailed than the FederalFree Exercise Clause, are perhaps the bestevidence of the original understanding of theConstitution’s protection of religious liberty.After all, it is reasonable to think that theStates that ratified the First Amendmentassumed that the meaning of the federal freeexercise provision corresponded to that oftheir existing state clauses. The precise lan-guage of these state precursors to the FreeExercise Clause varied, but most guaranteedfree exercise of religion or liberty of con-science, limited by particular, defined stateinterests. For example, the New York Con-stitution of 1777 provided:

‘‘[T]he free exercise and enjoyment of reli-gious profession and worship, without dis-crimination or preference, shall foreverhereafter be allowed, within this State, toall mankind: Provided, That the liberty ofconscience, hereby granted, shall not be so

construed as to excuse acts of licentious-ness, or justify practices inconsistent withthe peace or safety of this State.’’ N.Y.Const., Art. XXXVIII, in 7 Swindler 178(emphasis added).

Similarly, the New Hampshire Constitu-tion of 1784 declared:

‘‘Every individual has a natural and un-alienable right to worship GOD accordingto the dictates of his own conscience, andreason; and no subject shall be hurt, mo-lested, or restrained in his person, libertyor estate for worshipping GOD, in themanner and season most agreeable to thedictates of his own conscience, TTT provid-ed he doth not disturb the public peace, ordisturb others, in their religious worship.’’N.H. Const., Art. I, § 5, in 6 Swindler 345(emphasis added).

The Maryland Declaration of Rights of1776 read:

‘‘[N]o person ought by any law to be mo-lested in his person or estate on account ofhis religious persuasion S 554or profession, orfor his religious practice; unless, undercolour of religion, any man shall disturbthe good order, peace or safety of the State,or shall infringe the laws of morality, orinjure others, in their natural, civil, orreligious rights.’’ Md. Const., Declarationof Rights, Art. XXXIII in 4 Swindler 374(emphasis added).

The religious liberty clause of the GeorgiaConstitution of 1777 stated:

‘‘All persons whatever shall have thefree exercise of their religion; provided itbe not repugnant to the peace and safety ofthe State.’’ Ga. Const., Art. LVI, in 2Swindler 449 (emphasis added).

In addition to these state provisions, theNorthwest Ordinance of 1787—which was en-acted contemporaneously with the drafting ofthe Constitution and reenacted by the FirstCongress—established a bill of rights for aterritory that included what is now Ohio,Indiana, Michigan, Wisconsin, and part ofMinnesota. Article I of the Ordinance de-clared:


521 U.S. 556

‘‘No person, demeaning himself in apeaceable and orderly manner, shall everbe molested on account of his mode ofworship or religious sentiments, in the saidterritory.’’ Northwest Territory Ordi-nance of 1787, Art. I, 1 Stat. 52 (emphasisadded).

The language used in these state constitu-tional provisions and the Northwest Ordi-nance strongly suggests that, around thetime of the drafting of the Bill of Rights, itwas generally accepted that the right to ‘‘freeexercise’’ required, where possible, accommo-dation of religious practice. If not—and ifthe Court was correct in Smith that general-ly applicable laws are enforceable regardlessof religious conscience—there would havebeen no need for these documents to specify,as the New York Constitution did, that rightsof conscience should not be ‘‘construed as toexcuse acts of licentiousness, or justify prac-tices inconsistent with the peace or safety of[the] State.’’ Such a proviso would havebeen suSperfluous.555 Instead, these docu-ments make sense only if the right to freeexercise was viewed as generally superior toordinary legislation, to be overridden onlywhen necessary to secure important govern-ment purposes.

The Virginia Legislature may have debat-ed the issue most fully. In May 1776, theVirginia Constitutional Convention wrote aconstitution containing a Declaration ofRights with a clause on religious liberty.The initial drafter of the clause, George Ma-son, proposed the following:

‘‘That religion, or the duty which we oweto our CREATOR, and the manner of dis-charging it, can be (directed) only by rea-son and conviction, not by force or vio-lence; and therefore, that all men shouldenjoy the fullest toleration in the exerciseof religion, according to the dictates ofconscience, unpunished and unrestrainedby the magistrate, unless, under colour ofreligion, any man disturb the peace, thehappiness, or safety of society. And thatit is the mutual duty of all to practiceChristian forbearance, love, and charity to-wards each other.’’ Committee Draft ofthe Virginia Declaration of Rights, 1 Pa-

pers of George Mason 284–285 (R. Rutlanded.1970) (emphasis added).

Mason’s proposal did not go far enough fora 26–year–old James Madison, who had re-cently completed his studies at the Presbyte-rian College of Princeton. He objected firstto Mason’s use of the term ‘‘toleration,’’ con-tending that the word implied that the rightto practice one’s religion was a governmentalfavor, rather than an inalienable liberty.Second, Madison thought Mason’s proposalcountenanced too much state interference inreligious matters, since the ‘‘exercise of reli-gion’’ would have yielded whenever it wasdeemed inimical to ‘‘the peace, happiness, orsafety of society.’’ Madison suggested theprovision read instead:

‘‘ ‘That religion, or the duty we owe ourCreator, and the manner of discharging it,being under the direction S 556of reason andconviction only, not of violence or compul-sion, all men are equally entitled to thefull and free exercise of it, according to thedictates of conscience; and therefore thatno man or class of men ought on account ofreligion to be invested with peculiar emolu-ments or privileges, nor subjected to anypenalties or disabilities, unless under colorof religion the preservation of equal liber-ty, and the existence of the State be mani-festly endangered.’ ’’ G. Hunt, JamesMadison and Religious Liberty, in 1 Annu-al Report of the American Historical Asso-ciation, H.R.Doc. No. 702, 57th Cong., 1stSess., 163, 166–167 (1901) (emphasis add-ed).

Thus, Madison wished to shift Mason’s lan-guage of ‘‘toleration’’ to the language ofrights. See S. Cobb, The Rise of ReligiousLiberty in America 492 (1902) (reprint 1970)(noting that Madison objected to the word‘‘toleration’’ as belonging to ‘‘a system wherewas an established Church, and where acertain liberty of worship was granted, not ofright, but of grace’’). Additionally, underMadison’s proposal, the State could interferein a believer’s religious exercise only if theState would otherwise ‘‘be manifestly endan-gered.’’ In the end, neither Mason’s norMadison’s language regarding the extent towhich state interests could limit religious ex-ercise made it into the Virginia Constitution’sreligious liberty clause. Like the FederalFree Exercise Clause, the Virginia religious


liberty clause was simply silent on the sub-ject, providing only that ‘‘all men are equallyentitled to the free exercise of religion, ac-cording to the dictates of conscience.’’ Virgi-nia Declaration of Rights, Art. XVI (1776), in10 Swindler 50. For our purposes, however,it is telling that both Mason’s and Madison’sformulations envisioned that, when there wasa conflict, a person’s interest in freely prac-ticing his religion was to be balanced againststate interests. Although Madison endorseda more limited state interest exception thandid Mason, the debate would have been irrel-evant if either had thought the right to freeexercise did not S 557include a right to beexempt from certain generally applicablelaws. Presumably, the Virginia Legislatureintended the scope of its free exercise provi-sion to strike some middle ground betweenMason’s narrower and Madison’s broader no-tions of the right to religious freedom.

D

The practice of the Colonies and earlyStates bears out the conclusion that, at thetime the Bill of Rights was ratified, it wasaccepted that government should, when pos-sible, accommodate religious practice. Un-surprisingly, of course, even in the AmericanColonies inhabited by people of religious per-suasions, religious conscience and civil lawrarely conflicted. Most 17th and 18th centu-ry Americans belonged to denominations ofProtestant Christianity whose religious prac-tices were generally harmonious with coloniallaw. Curry, The First Freedoms, at 219(‘‘The vast majority of Americans assumedthat theirs was a Christian, i.e. Protestant,country, and they automatically expectedthat government would uphold the commonlyagreed on Protestant ethos and morality’’).Moreover, governments then were farsmaller and less intrusive than they are to-day, which made conflict between civil lawand religion unusual.

Nevertheless, tension between religiousconscience and generally applicable laws,though rare, was not unknown in pre-consti-tutional America. Most commonly, such con-flicts arose from oath requirements, military

conscription, and religious assessments. Ori-gins of Free Exercise 1466. The ways inwhich these conflicts were resolved suggestthat Americans in the Colonies and earlyStates thought that, if an individual’s reli-gious scruples prevented him from complyingwith a generally applicable law, the govern-ment should, if possible, excuse the personfrom the law’s coverage. For example,Quakers and certain other Protestant sectsrefused on Biblical grounds to subscribe tooaths or ‘‘swear’’ allegiance to civil authority.A. Adams & C. EmSmerich,558 A Nation Dedi-cated to Religious Liberty: The Constitution-al Heritage of the Religion Clauses 14 (1990)(hereinafter Adams & Emmerich). Withoutaccommodation, their beliefs would have pre-vented them from participating in civic activi-ties involving oaths, including testifying incourt. Colonial governments created alter-natives to the oath requirement for theseindividuals. In early decisions, for example,the Carolina proprietors applied the religiousliberty provision of the Carolina Charter of1665 to permit Quakers to enter pledges in abook. Curry, The First Freedoms, at 56.Similarly, in 1691, New York enacted a lawallowing Quakers to testify by affirmation,and in 1734, it permitted Quakers to qualifyto vote by affirmation. Id., at 64. By 1789,virtually all of the States had enacted oathexemptions. See Adams & Emmerich 62.

Early conflicts between religious beliefsand generally applicable laws also occurredbecause of military conscription require-ments. Quakers and Mennonites, as well asa few smaller denominations, refused on reli-gious grounds to carry arms. Members ofthese denominations asserted that liberty ofconscience should exempt them from militaryconscription. Obviously, excusing such ob-jectors from military service had a high pub-lic cost, given the importance of the militaryto the defense of society. Nevertheless,Rhode Island, North Carolina, and Marylandexempted Quakers from military service inthe late 1600’s. New York, Massachusetts,Virginia, and New Hampshire followed suitin the mid–1700’s. Origins of Free Exercise1468. The Continental Congress likewisegranted exemption from conscription:


521 U.S. 560

‘‘As there are some people, who, fromreligious principles, cannot bear arms inany case, this Congress intend no violenceto their consciences, but earnestly recom-mend it to them, to contribute liberally inthis time of universal calamity, to the reliefof their distressed brethren in the severalcolonies, and to do all other services totheir oppressed Country, which they canconsistSently559 with their religious princi-ples.’’ Resolution of July 18, 1775, reprint-ed in 2 Journals of the Continental Con-gress, 1774–1789, pp. 187, 189 (W. Forded.1905).

Again, this practice of excusing religious pac-ifists from military service demonstratesthat, long before the First Amendment wasratified, legislative accommodations were acommon response to conflicts between reli-gious practice and civil obligation. Notably,the Continental Congress exempted objec-tors from conscription to avoid ‘‘violence totheir consciences,’’ explicitly recognizing thatcivil laws must sometimes give way to free-dom of conscience. Origins of Free Exercise1468.

States and Colonies with establishedchurches encountered a further religious ac-commodation problem. Typically, these gov-ernments required citizens to pay tithes tosupport either the government-establishedchurch or the church to which the tithepayerbelonged. But Baptists and Quakers, as wellas others, opposed all government-compelledtithes on religious grounds. Id., at 1469.Massachusetts, Connecticut, New Hamp-shire, and Virginia responded by exemptingsuch objectors from religious assessments.Ibid. There are additional examples of earlyconflicts between civil laws and religiouspractice that were similarly settled throughaccommodation of religious exercise. BothNorth Carolina and Maryland excused Quak-ers from the requirement of removing theirhats in court; Rhode Island exempted Jewsfrom the requirements of the state marriagelaws; and Georgia allowed groups of Europe-an immigrants to organize whole towns ac-cording to their own faith. Id., at 1471.

To be sure, legislatures, not courts, grant-ed these early accommodations. But thesewere the days before there was a Constitu-

tion to protect civil liberties—judicial reviewdid not yet exist. These legislatures appar-ently believed that the appropriate responseto conflicts between civil law and religiousscruples was, where possible, accommodationof reSligious560 conduct. It is reasonable topresume that the drafters and ratifiers of theFirst Amendment—many of whom served instate legislatures—assumed courts would ap-ply the Free Exercise Clause similarly, sothat religious liberty was safeguarded.

EThe writings of the early leaders who

helped to shape our Nation provide a finalsource of insight into the original under-standing of the Free Exercise Clause. Thethoughts of James Madison—one of the prin-cipal architects of the Bill of Rights—as re-vealed by the controversy surrounding Virgi-nia’s General Assessment Bill of 1784, areparticularly illuminating. Virginia’s debateover religious issues did not end with itsadoption of a constitutional free exercise pro-vision. Although Virginia had disestablishedthe Church of England in 1776, it left openthe question whether religion might be sup-ported on a nonpreferential basis by a so-called ‘‘general assessment.’’ Levy, Essayson American Constitutional History, at 200.In the years between 1776 and 1784, theissue how to support religion in Virginia—either by general assessment or voluntarily—was widely debated. Curry, The First Free-doms, at 136.

By 1784, supporters of a general assess-ment, led by Patrick Henry, had gained aslight majority in the Virginia Assembly. M.Malbin, Religion and Politics: The Intentionsof the Authors of the First Amendment 23(1978); Levy, supra, at 200. They intro-duced ‘‘A Bill Establishing a Provision forthe Teachers of the Christian Religion,’’which proposed that citizens be taxed in or-der to support the Christian denomination oftheir choice, with those taxes not designatedfor any specific denomination to go to apublic fund to aid seminaries. Levy, supra,at 200–201; Curry, supra, at 140–141; Mal-bin, supra, at 23. Madison viewed religiousassessment as a dangerous infringement ofreligious liberty and led the opposition to the


bill. He took the case against religious as-sessment to the people of Virginia in his now-famous ‘‘MeSmorial561 and RemonstranceAgainst Religious Assessments.’’ Levy, su-pra, at 201. This pamphlet led thousands ofVirginians to oppose the bill and to submitpetitions expressing their views to the legis-lature. Malbin, supra, at 24. The bill even-tually died in committee, and Virginia insteadenacted a Bill for Establishing ReligiousFreedom, which Thomas Jefferson had draft-ed in 1779. Malbin, supra, at 24.

The ‘‘Memorial and Remonstrance’’ beginswith the recognition that ‘‘[t]he Religion TTT

of every man must be left to the convictionand conscience of every man; and it is theright of every man to exercise it as thesemay dictate.’’ 2 Writings of James Madison184 (G. Hunt ed.1901). By its very nature,Madison wrote, the right to free exercise is‘‘unalienable,’’ both because a person’s opin-ion ‘‘cannot follow the dictates of other[s],’’and because it entails ‘‘a duty towards theCreator.’’ Ibid. Madison continued:

‘‘This duty [owed the Creator] is precedentboth in order of time and degree of obli-gation, to the claims of Civil SocietyTTTT

[E]very man who becomes a member ofany particular Civil Society, [must] do itwith a saving of his allegiance to the Uni-versal Sovereign. We maintain thereforethat in matters of Religion, no man’s rightis abridged by the institution of Civil Soci-ety, and that Religion is wholly exemptfrom its cognizance.’’ Id., at 184–185.

To Madison, then, duties to God were su-perior to duties to civil authorities—the ulti-mate loyalty was owed to God above all.Madison did not say that duties to the Cre-ator are precedent only to those laws specifi-cally directed at religion, nor did he strivesimply to prevent deliberate acts of persecu-tion or discrimination. The idea that civilobligations are subordinate to religious dutyis consonant with the notion that governmentmust accommodate, where possible, those re-ligious practices that conflict with civil law.

S 562Other early leaders expressed similarviews regarding religious liberty. ThomasJefferson, the drafter of Virginia’s Bill forEstablishing Religious Freedom, wrote inthat document that civil government could

interfere in religious exercise only ‘‘whenprinciples break out into overt acts againstpeace and good order.’’ In 1808, he indicatedthat he considered ‘‘ ‘the government of theUnited States as interdicted by the Constitu-tion from intermeddling with religious insti-tutions, their doctrines, discipline, or exercis-es.’ ’’ 11 The Writings of Thomas Jefferson428–429 (A. Lipscomb ed.1904) (quoted inOffice of Legal Policy, U.S. Dept. of Justice,Report to the Attorney General, ReligiousLiberty under the Free Exercise Clause 7(1986)). Moreover, Jefferson believed that‘‘ ‘[e]very religious society has a right to de-termine for itself the time of these exercises,and the objects proper for them, according totheir own particular tenets; and this rightcan never be safer than in their own hands,where the Constitution has deposited it.’ ’’Ibid.

George Washington expressly stated thathe believed that government should do itsutmost to accommodate religious scruples,writing in a letter to a group of Quakers:

‘‘[I]n my opinion the conscientious scruplesof all men should be treated with greatdelicacy and tenderness; and it is my wishand desire, that the laws may always be asextensively accommodated to them, as adue regard to the protection and essentialinterests of the nation may justify andpermit.’’ Letter from George Washingtonto the Religious Society Called Quakers(Oct. 1789), in George Washington on Reli-gious Liberty and Mutual Understanding11 (E. Humphrey ed.1932).

Oliver Ellsworth, a Framer of the FirstAmendment and later Chief Justice of theUnited States, expressed the similar viewthat government could interfere in religiousmatters only when necessary ‘‘to prohibit andpunish gross immoraliSties563 and impieties;because the open practice of these is of evilexample and detriment.’’ Oliver Ellsworth,Landholder, No. 7 (Dec. 17, 1787), reprintedin 4 Founders’ Constitution 640. Isaac Bac-kus, a Baptist minister who was a delegate tothe Massachusetts ratifying convention of1788, declared that ‘‘ ‘every person has anunalienable right to act in all religious affairsaccording to the full persuasion of his own


521 U.S. 565

mind, where others are not injured there-by.’ ’’ Backus, A Declaration of Rights, ofthe Inhabitants of the State of Massachu-setts–Bay, in Isaac Backus on Church, State,and Calvinism 487 (W. McLoughlin ed.1968).

These are but a few examples of variousperspectives regarding the proper relation-ship between church and government thatexisted during the time the First Amend-ment was drafted and ratified. Obviously,since these thinkers approached the issue ofreligious freedom somewhat differently, seeAdams & Emmerich 21–31, it is not possibleto distill their thoughts into one tidy formula.Nevertheless, a few general principles maybe discerned. Foremost, these early leadersaccorded religious exercise a special constitu-tional status. The right to free exercise wasa substantive guarantee of individual liberty,no less important than the right to freespeech or the right to just compensation forthe taking of property. See P. Kauper, Reli-gion and the Constitution 17 (1964) (‘‘[O]urwhole constitutional history TTT supports theconclusion that religious liberty is an inde-pendent liberty, that its recognition may ei-ther require or permit preferential treatmenton religious grounds in some instancesTTT ’’). As Madison put it in the concludingargument of his ‘‘Memorial and Remon-strance’’:

‘‘ ‘[T]he equal right of every citizen to thefree exercise of his Religion according tothe dictates of [his] conscience’ is held bythe same tenure with all our otherrightsTTTT [I]t is equally the gift of na-ture; TTT it cannot be less dear to us; TTT

it is enumerated with equal solemSnity,564 orrather studied emphasis.’’ 2 Writings ofJames Madison, at 190.

Second, all agreed that government inter-ference in religious practice was not to belightly countenanced. Adams & Emmerich31. Finally, all shared the conviction that‘‘ ‘true religion and good morals are the onlysolid foundation of public liberty and happi-ness.’ ’’ Curry, The First Freedoms, at 219(quoting Continental Congress); see Adams& Emmerich 72 (‘‘The Founders TTT ac-knowledged that the republic rested largelyon moral principles derived from religion’’).To give meaning to these ideas—particularly

in a society characterized by religious plural-ism and pervasive regulation—there will betimes when the Constitution requires govern-ment to accommodate the needs of thosecitizens whose religious practices conflictwith generally applicable law.

IIIThe Religion Clauses of the Constitution

represent a profound commitment to reli-gious liberty. Our Nation’s Founders con-ceived of a Republic receptive to voluntaryreligious expression, not of a secular societyin which religious expression is toleratedonly when it does not conflict with a general-ly applicable law. As the historical sourcesdiscussed above show, the Free ExerciseClause is properly understood as an affirma-tive guarantee of the right to participate inreligious activities without impermissiblegovernmental interference, even where a be-liever’s conduct is in tension with a law ofgeneral application. Certainly, it is in noway anomalous to accord heightened protec-tion to a right identified in the text of theFirst Amendment. For example, it has longbeen the Court’s position that freedom ofspeech—a right enumerated only a fewwords after the right to free exercise—hasspecial constitutional status. Given the cen-trality of freedom of speech and religion tothe American concept of personal liberty, itis altogether reasonable to conclude S 565thatboth should be treated with the highest de-gree of respect.

Although it may provide a bright line, therule the Court declared in Smith does notfaithfully serve the purpose of the Constitu-tion. Accordingly, I believe that it is essen-tial for the Court to reconsider its holding inSmith—and to do so in this very case. Iwould therefore direct the parties to briefthis issue and set the case for reargument.

I respectfully dissent from the Court’s dis-position of this case.

Justice SOUTER, dissenting.

To decide whether the Fourteenth Amend-ment gives Congress sufficient power to en-act the Religious Freedom Restoration Actof 1993, the Court measures the legislationagainst the free-exercise standard of Em-


ployment Div., Dept. of Human Resources ofOregon v. Smith, 494 U.S. 872, 110 S.Ct.1595, 108 L.Ed.2d 876 (1990). For the rea-sons stated in my opinion in Church of Lu-kumi Babalu Aye, Inc. v. Hialeah, 508 U.S.520, 564–577, 113 S.Ct. 2217, 2242–2250, 124L.Ed.2d 472 (1993) (opinion concurring inpart and concurring in judgment), I haveserious doubts about the precedential valueof the Smith rule and its entitlement toadherence. These doubts are intensified to-day by the historical arguments going to theoriginal understanding of the Free ExerciseClause presented in Justice O’CONNOR’sdissent, ante, at 2178–2185, which raises verysubstantial issues about the soundness of theSmith rule. See also ante, at 2172 (JusticeSCALIA, concurring in part) (addressinghistorical arguments). But without briefingand argument on the merits of that rule(which this Court has never had in any case,including Smith itself, see Lukumi, 508 U.S.,at 571–572, 113 S.Ct., at 2246–2247), I amnot now prepared to join Justice O’CON-NOR in rejecting it or the majority in as-suming it to be correct. In order to providefull adversarial consideration, this caseshould be set down for reargument permit-ting plenary reexamination of the issue.Since the Court declines to follow thatcourse, our free-exercise S 566law remainsmarked by an ‘‘intolerable tension,’’ id., at574, 113 S.Ct., at 2248, and the constitution-ality of the Act of Congress to enforce thefree-exercise right cannot now be soundlydecided. I would therefore dismiss the writof certiorari as improvidently granted, and Iaccordingly dissent from the Court’s disposi-tion of this case.

Justice BREYER, dissenting.

I agree with Justice O’CONNOR that theCourt should direct the parties to brief thequestion whether Employment Div., Dept. ofHuman Resources of Oregon v. Smith, 494U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876(1990), was correctly decided, and set thiscase for reargument. I do not, however, findit necessary to consider the question wheth-er, assuming Smith is correct, § 5 of theFourteenth Amendment would authorizeCongress to enact the legislation before us.

Thus, while I agree with some of the viewsexpressed in the first paragraph of Part I ofJustice O’CONNOR’s dissent, I do not neces-sarily agree with all of them. I thereforejoin Justice O’CONNOR’s dissent, with theexception of the first paragraph of Part I.

,

521 U.S. 567, 138 L.Ed.2d 669

S 567C. Martin LAWYER, III, Appellant,

v.

DEPARTMENT OF JUSTICE et al.No. 95–2024.

Argued Feb. 19, 1997.

Decided June 25, 1997.

Action was brought against UnitedStates Department of Justice and State ofFlorida, challenging configuration of statesenate district, and various parties were per-mitted to intervene. After majority of par-ties reached proposed resolution during me-diation, and three-judge panel held fairnesshearing, the United States District Court forthe Middle District of Florida, 920 F.Supp.1248, approved settlement and appeal wastaken. The United States Supreme Court,Justice Souter, held that: (1) right of state tohave adequate opportunity to make its ownredistricting choice was satisfied when stateelected to be represented in district courtaction by its attorney general; (2) objectingparty could not block settlement, and (3) trialcourt was not clearly erroneous in approvingproposed district.

Affirmed.

Justice Scalia dissented and filed opin-ion, in which Justices O’Connor, Kennedyand Thomas joined.

1. States O27(10)Party objecting to new state senate dis-

trict created by redistricting plan approvedby federal district court had preserved issue