Petition filed by the Masters of Painting [i.e. To decide whether the Fourteenth Amendment gives Congress sufficient power to enact the Religious Freedom Restoration Act, the Court measures the legislation against the free exercise standard of Employment Div., Dept. Thomas Jefferson, the drafter of Virginia's Bill for Establishing Religious Freedom, wrote in that document that civil government could interfere in religious exercise only "when principles break out into overt acts against peace and good order." FLORES Michael W McConnell* Last Term, in City of Boerne v. Flores,' two of the most important and contested issues of modern constitutional law converged in a sin-gle case. These state provisions, which were typically longer and more detailed than the federal Free Exercise Clause, are perhaps the best evidence of the original understanding of the Constitution's protection of religious liberty.

Justice O'Connor concluded Oregon had satisfied the test, while Justice Blackmun, joined by Justice Brennan and Justice Marshall, could see no compelling interest justifying the law's application to the members. Ibid.

. NOTICE: While preventive rules are sometimes appropriate remedial measures, there must be a congruence between the means used and the ends to be achieved.

If Congress could define its own powers by altering the Fourteenth Amendment's meaning, no longer would the Constitution be "superior paramount law, unchangeable by ordinary means." Colonial governments created alternatives to the oath requirement for these individuals. See id., at 125. Rep. 884, 885 (Q. By 1789, every State but Connecticut had incorporated some version of a free exercise clause into its constitution. Although Virginia had disestablished the Church of England in 1776, it left open the question whether religion might be supported on a nonpreferential basis by a so called "general assessment." I believe that, in light of both our precedent and our Nation's tradition of religious liberty, Smith is demonstrably wrong. "Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process."

-258 (1982); McDaniel v. Paty,

After South Carolina v. Katzenbach, the Court continued to acknowledge the necessity of using strong remedial and preventive measures to respond to the widespread and persisting deprivation of constitutional rights resulting from this country's history of racial discrimination.

Justice Scalia, with whom Justice Stevens joins, concurring in part. Globe, 42d Cong., 1st Sess., App., at 115 (statement of Rep. Farnsworth) (The Amendment was "given its quietus by a postponement for two months, where it slept the sleep that knows no waking"). Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. South Carolina v. Katzenbach, An instructive comparison may be drawn between RFRA and the Voting Rights Act of 1965, provisions of which were upheld in Katzenbach, supra, and subsequentvoting rights cases. See Church of the Lukumi Babalu Aye, Inc. v. Hialeah, (Black, J., concurring and dissenting). But as a yardstick for measuring the constitutionality of RFRA, the Court uses its holding in Employment Div., Dept. Quakers and Mennonites, as well as a few smaller denominations, refused on religious grounds to carry arms. (1990), the decision that prompted Congress to enact RFRA as a means of more rigorously enforcing the Free Exercise Clause. Where, however, a congressional enactment pervasively prohibits constitutional state action in an effort to remedy or to prevent unconstitutional state action, limitations of this kind tend to ensure Congress' means are proportionate to ends legitimate under §5. 446 U.S. 156 (1996) U.S. Reports: City of Boerne v. Flores, 521 U.S. 507. Footnote 1 Post, at 14-17. See also id., at 2768 (statement of Sen. Howard) (§5 "enables Congress, in case the States shall enact laws in conflict with the principles of the amendment, to correct that legislation by a formal congressional enactment").
384 U.S., at 651 The one exception is the statement by Thomas Jefferson that he considered "the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises," post, at 19-20 (internal quotation marks omitted); but it is quite clear that Jefferson did not in fact espouse the broad principle of affirmative accommodation advocated by the dissent, see McConnell, 103 Harv. Rather, the Clause is best understood as an affirmative guarantee of the right to participate in religious practices and conduct without impermissible governmental interference, even when such conduct conflicts with a neutral, generally applicable law.

Justice O'Connor, with whom Justice Breyer joins except as to a portion of Part I, dissenting. The second rationale, an alternative holding, did not address discrimination in the provision of public services but "discrimination in establishing voter qualifications." These colonies, though established as sanctuaries for particular groups of religious dissenters, extended freedom of religion to groups--although often limited to Christian groups--beyond their own. L. Rev. It is the basic document that defines the powers, functions, and essential procedures of our city's government-comparable to the US Constitution or a state's constitution. . If " `compelling interest' really means what it says . It is reasonable to presume that the drafters and ratifiers of the First Amendment--many of whom served in state legislatures--assumed courts would apply the Free Exercise Clause similarly, so that religious liberty was safeguarded. A decision by local zoning authorities to deny a church a building permit was challenged under the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. Under the revised Amendment, Congress' power was no longer plenary but remedial. If a state law disproportionately burdened a particular class of religious observers, this circumstance might be evidence of an impermissible legislative motive. . Claims that a law substantially burdens someone's exercise of religion will often be difficult to contest. 6-19. In defense of the Act respondent contends, with support from the United States as amicus, that RFRA is permissible enforcement legislation. Although the specific holdings of these early cases might have been superseded or modified, see, e.g., Heart of Atlanta Motel, Inc. v. United States, , the Court rejected a challenge to the constitutionality of a Voting Rights Act provision which required certain jurisdictions to submit changes in electoral practices to the Department of Justice for preimplementation review. L. Levy, Essays on American Constitutional History 173 (1972). In deciding whether to invalidate the Religious Freedom Restoration Act (RFRA) in City of Boerne v. Flores, 117 S. Ct. 2157 (1997), the Supreme Court faced an unhappy dilemma. (1972); Gillette v. United States, Our Nation's Founders conceived of a Republic receptive to voluntary religious expression, not of a secular society in which religious expression is tolerated only when it does not conflict with a generally applicable law. If the Court were to correct the misinterpretation of the Free Exercise Clause set forth in Smith, it would simultaneously put our First Amendment jurisprudence back on course and allay the legitimate concerns of a majority in Congress who believed that Smith improperly restricted religious liberty.

Wallace v. Jaffree, 472 U.S. 38, 52—55 (1985).

. 877 F. Supp. . ; they behaving themselves peaceably and quietly and not using this liberty to licentiousness and profaneness; nor to the civil injury, or outward disturbance of others." 133 (statement of Rep. Rogers) (prior to Bingham proposal it "was left entirely for the courts . . of Human Resources of Ore. v. Smith, of society," it probably meant "unless under color of religion any man break the law." Recent cases have continued to revolve around thequestion of whether §5 legislation can be considered remedial. Globe, 39th Cong., 1st Sess., at 2286. The substantial costs RFRA exacts, both in practical terms of imposing a heavy litigation burden on the States and in terms of curtailing their traditional general regulatory power, far exceed any pattern or practice of unconstitutional conduct under the FreeExercise Clause as interpreted in Smith. In South Carolina v. Katzenbach, the challenged provisions were confined to those regions of the country where voting discrimination had been most flagrant, see The judgment of the Court of Appeals sustaining the Act'sconstitutionality is reversed. whenever the same shall be abridged or denied by the unconstitutional acts of any State." XVIII (1663). City of Boerne v. Flores SCOTUS - 1997 Facts: The Religious Freedom Restoration Act of 1993 prohibits the government from substantially burdening a person's exercise of religion even if the burden results from a rule of general applicability. But without briefing and argument on the merits of that rule (which this Court has never had in any case, including Smith itself, see Lukumi, supra, at 571-572), I am not now prepared to join Justice O'Connor in rejecting it or the majority in assuming it to be correct.

There we considered a Free Exercise Clause claim brought by members of the Native American Church who were denied unemployment benefits when they lost their jobs because they had used peyote.

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