Today in Supreme Court History: June 25, 1997

6/25/1997: City of Boerne v. Flores is decided.

Comments

[JoeFromtheBronx]

The Supreme Court, by a vote of 6-3 (O'Connor, Souter, and Breyer in dissent; Stevens concurred on Establishment Clause grounds; Ginsburg joined the majority without comment), held the Religious Freedom Restoration Act as applied to the states unconstitutional.

RFRA was an overcorrection to Oregon v. Smith, which itself could have been narrowly decided. I respect Scalia's sentiments, even if he didn't seem to consistently hold on to them,

Nonetheless, a narrow decision (like found in the state court) on just the unemployment issue was possible and probably advisable. SCOTUS reached out for bigger game, and a bipartisan coalition answered with an overly broad statute that had a reach to a myriad of local issues, including this property dispute.

RFRA was still acceptable for the federal government, though Stevens's concurrence would logically apply there as well. The potential breadth of RFRA's coverage has led to some troubling results. It also realistically cannot be consistently applied.

The result will be some artificial line-drawing which will sometimes, in intent and/or practice, favor certain religions. We see this, e.g., in the abortion context, but not only there.

I think ultimately the majority was probably right in Boerne even though the congruence and proportionality test is sketchy. I was at first wary about the decision. I have not been a big fan of many of their federalism decisions.

But RFRA is particularly broad. This is not just some federal law on a single issue, such as disability regulation, that can affect the states. Religion can touch upon anything.

It is also not just about federalism. Religious exemptions are a touchy subject and should be carefully drawn. RFRA did not do that.

[bye]

Responding to Hibbs, I find this compelling as a description of what was going on

"The specific question is whether Congress may impose on the States this entitlement program of its own design, with mandated minimums for leave time, and then enforce it by permitting private suits for money damages against the States."

AND in the dissent
"As the Court seems to recognize, the evidence considered by Congress concerned discriminatory practices of the private sector, not those of state employers. .... The statistical information compiled by the Bureau of Labor Statistics (BLS), which are the only factual findings the Court cites, surveyed only private employers. ...While the evidence of discrimination by private entities may be relevant, it does not, by itself, justify the abrogation of States' sovereign immunity. "

AMEN