City of Boerne, Texas v. P.F. Flores, Archbishop of San Antonio Brief Amicus Curiae of the NAACP Legal Defense and Educational Fund in Support of Respondents

    No. 95-2074

IN THE

Supreme Court of tije flmteb States.
October Term , 1996

City of Boerne, Texas,
Petitioner,

v.

P.F. Flores, Archbishop of San Antonio,

Respondent,
and

United States of America,

Respondent-Intervenor.

On Writ of Certiorari to the 
United States Court of Appeals for the Fifth Circuit

BRIEF AMICUS CURIAE OF THE NAACP 
LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

IN SUPPORT OF RESPONDENTS

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Norman J. Chachkin* 
David T. Goldberg

NAACP Legal Defense and 
Educational Fund, In c .

99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900
* Counsel of Record 

Counsel for Amicus Curiae

PRESS OF BYRON S. ADAMS 4- WASHINGTON, D.C. ♦  1-800-347-8208



TABLE OF CONTENTS*
Paee

Table of Authorities.......................................................

Interest of Amicus Curiae . .............................................. 1

Summary of Argument ........................................................2

ARGUMENT -  RFRA is "Appropriate" Legislation 
Enforcing the Fourteenth 
Amendment............................................ 3

A. RFRA is Plainly Within Congress’
Enforcement Authority......................................3

1. Congress Could Reasonably have
Determined that RFRA was Needed to 
Safeguard the Constitutional Guarantee 
of Religious Free Exercise .......................5

2. RFRA Also Effectuates Core Concepts
of Equal Protection  ............. 8

a. RFRA Provides Protection for
Minorities  ................................. 8

b. RFRA Further Assures Equal 
Protection of Fundamental
Rights and Promotes Impartial 
Governance .............................12

‘Consent to the filing of this brief has been granted by 
counsel for all parties via a stipulation previously lodged 
with the Clerk and a letter of consent from the United 
States filed simultaneously herewith.

l



TABLE OF CONTENTS (continued)
Page

B. There is no Justification for Re-Writing 
the Law Governing Congress’ Enforcement
Pow er...............     15

1. Congress Has Authority to Enforce
"Incorporated" Rights ........................... 15

2. Katzenbach v. Morgan Was Rightly
Decided .......................................... .. . 20

Conclusion .....................................     30

li



Table of Authorities
Page

Cases:

Adarand v. Pena,
115 S. Ct. 2097 (1995) .................................... 10

Arizona v. Rumsey,
467 U.S. 203 (1984)............................. 15

Blylew v. United States,
80 U.S. 581 (1872) ..........................................  20

Board of Educ. of Kiryas Joel v. Grurnet,
114 S. Ct. 2481 (1994)...............................  10, 11

Bob Jones Univ. v. United States,
461 U.S. 574 (1983) ...................................... .. . 1

Bolling v. Sharpe,
347 U.S. 497 (1954) ........................................  29

Bowen v. Roy,
476 U.S. 693 (1986) ..........................................  5

Bush v. Vera,
116 S. Ct. 1941 (1996)................................... .. 30

Califano v. Jobst,
434 U.S. 47 (1977)...................... .....................  12

Campos v. Coughlin,
854 F. Supp. 194 (S.D.N.Y. 1994) .........................9

Cantwell v. Connecticut,
310 U.S. 296 (1940) .................................... 16, 19

iii



Table of Authorities (continued)

Page
Cases (continued):

Carpenters v. Scott,
463 U.S. 825 (1983) . ......................................  16

Church of the Lukumi Babalu v. City of Hialeah,
508 U.S. 520 (1993) ............. ................... .. . 5, 13

Cipolone v. Ligett Group, Inc.,
505 U.S. 504 (1992) ...................... .................  23

City of Cleburne v. Cleburne Living Ctr., Inc.,
473 U.S. 432 (1985) ............................ .. 14

City of Memphis v. Greene,
451 U.S. 100 (1981) ............................................. 27

City of Mobile v. Bolden,
446 U.S. 55 (1980)......... ................................ 1

City of Richmond v. J.A. Croson Co.,
488 U.S. 469 (1989) ......... .. 6, 11

City of Rome v. United States,
446 U.S. 156 (1980) ......................... 3, 4, 7, 16, 27

Clay a/k/a Ali v. United States,
403 U.S. 698 (1971) .................................... .. 9

Connecticut v. Teal,
457 U.S. 447 (1982) ................ ........................ 14

Cooper v. Aaron,
358 U.S. 1 (1958) .......................................... 1,29

iv



Table of Authorities (continued)

Page
Cases (continued):

EEOC v. Wyoming,
460 U.S. 226 (1983).................................  6, 21, 22

Edwards v. Aguillard,
482 U.S. 578 (1987) ........................................  10

Employment Div. v. Smith,
494 U.S. 872 (1990)......................................passim

Ex parte Virginia,
100 U.S. 339 (1880) ...................................... 3, 4

Fitzpatrick v. Bitzer,
427 U.S. 445 (1976) ....................................  17, 22

44 Liquormart, Inc. v. Rhode Island,
116 S. Ct. 1495 (1996) .................................... • 19

Fullilove v. Klutznick,
448 U.S. 448 (1980) ..........................................  7

Gaston County v. United States,
395 U.S. 285 (1969) ..........................................  7

Geduldig v. Aiello,
417 U.S. 484 (1974) ........................................  14

Georgia v. Rachel,
384 U.S. 780 (1966) ........... - ..........................  16

Goldman v. Weinberger,
473 U.S. 503 (1986) ...................................... 9, 10

v



Table of Authorities (continued)
Page

Cases (continued):

Gregory v. Ashcroft,
501 U.S. 452 (1991) .......................................  22

Griffin v. Breckenridge,
403 U.S. 88 (1971).......................................  17, 27

Griggs v. Duke Power Co.,
401 U.S. 424 (1971) . ........................................  1

Harper v. Virginia Bd. of Elections,
383 U.S. 663 (1966) ............................ .. 14

Hunter v. Underwood,
471 U.S. 222 (1985) ........... ............................  13

Hutto v. Finney,
437 U.S. 678 (1978) ............... ................ . . .  17

Jones v. Alfred H. Mayer Co.,
392 U.S. 409 (1968) ......... .......................... . 3, 27

Katzenbach v. McClung,
379 U.S. 294 (1964) ............................. .. 23

Katzenbach v. Morgan,
384 U.S. 641 (1966) ......... ............ .. passim

Lane v. Wilson,
307 U.S. 268 (1939) .................. ........................ 1

Larson v. Valente,
456 U.S. 228 (1982) .....................................  8, 11

vi



Table of Authorities (continued)
Page

Cases (continued):

Loving v. Virginia,
388 U.S. 1 (1967) ............................................  17

Madsen v. Women’s Health Ctr., Inc.,
512 U.S. 753 (1994) ........................................ 19

Maher v. Gagne,
448 U.S. 122 (1980) ........................................ 17

Marbury v. Madison,
5 U.S. (1 Cr.) 137 (1803).................................  28

Massachusetts Bd. of Retirement v.
Murgia, 427 U.S. 307 (1976) ........................... 14

McCulloch v. Maryland,
17 U.S. (4 Wheat.) 316
(1819)............. ........................................... • passim

Metropolitan Life Ins. Co. v. Ward,
470 U.S. 869 (1985) .................................... 13, 28

Mississippi Univ. for Women v. Hogan,
458 U.S. 718 (1982) ........................................ 28

Missouri v. Jenkins,
115 S. Ct. 2038 (1995) ....... ............................  14

Monell v. New York City Dep’t of Social Servs.,
436 U.S. 658 (1978) ...................................  14, 25

vii



Table of Authorities (continued)
Page

Cases (continued):

Munn v. Algee,
924 F.2d 568 (5th Cir. 1991) ............................. 9

N.A.A.C.P. v. Button,
371 U.S. 415 (1963) .................. ................... .. . 1

New York v. United States,
508 U.S. 152 (1993) ........................................... 22

Niemotko v. Maiyland,
340 U.S. 268 (1951) ........................................  17

Olsen v. DEA,
878 F.2d 1458 (D.C. Cir. 1989).................. . 11, 12

Oregon v. Mitchell,
400 U.S. 112 (1970) .................... .. 6, 13, 16, 17, 25

Patsy v. Florida Bd. of Regents,
457 U.S. 496 (1983) . ................ ............... 25

Patterson v. McLean Credit Union,
491 U.S. 164 (1989) .................. ................... .. 14

Pennsylvania v. Union Gas,
491 U.S. 1 (1989) .......................... . . . . . . . .  30

Plaut v. Spendthrift Farm, Inc.,
115 S. Ct. 1447 (1995)......... ..............................  7

Prigg v. Pennsylvania,
41 U.S. (16 Pet.) 539 (1842) . . . . . . . . ------ . 25

viii



Table of Authorities (continued)
Page

Cases (continued):

Robinson v. Foti,
527 F. Supp. 1111 (E.D. La. 1981) .................. 9

Runyon v. McCrary,
427 U.S. 160 (1976) ........................................ 15

Shelley v. Kraemer,
334 U.S. 1 (1948) ............................................  29

South Carolina v. Baker,
485 U.S. 505 (1988) ........................................ 29

South Carolina v. Katzenbach,
383 U.S. 301 (1966) . ............................... .. • 6, 30

The Civil Rights Cases,
109 U.S. 3 (1883) ...................................... 7, 24, 26

The Slaughter-House Cases,
83 U.S. 36 (1873) ............................................... 27

Toledo v. Nobel-Sysco, Inc.,
892 F.2d 1481 (10th Cir. 1989)........................ .. 9

United States v. Armstrong,
116 S. Ct. 1480 (1996) ....... ........................ 12

United States v. Darby,
312 U.S. 100 (1941) ........................................ 21

United States v. Lopez,
115 S. Ct. 1624 (1995) .................................. 22, 23

IX



Table of Authorities (continued)
Page

Cases (continued):

United States v. Price,
383 U.S. 787 (1966) ......... ...................  17, 29, 30

United States v. Rhodes,
27 F. Cas. 785 (C.C.D. Ky. 1867)....................  22

United States v. United States Gypsum Co.,
340 U.S. 76 (1950) ........................... ...................  4

Washington v. Davis,
426 U.S. 229 (1976) ......... ..............................  14

West Virginia Bd. of Educ. v. Barnette,
319 U.S. 624 (1943) ........... ............................  17

Yang v. Stumer,
780 F. Supp. 558 (D.R.I. 1990)...................... .. . 9

CONSTITUTION AND STATUTES

U.S. Const, art. I, § 8, cl. 18 ........... .. 3, 22

Civil Rights Act of 1991, Pub. L. No. 102-166 . . . . .  1, 30

Age Discrimination in Employment Act,
29 U.S.C. § 621 et seq. ___ _____ . . . . . .  14, 30

Americans with Disabilities Act,
42 U.S.C. § 12101 ......... ..............................  14,30

x



Table of Authorities (continued)
Page

Constitution and Statutes (continued):

Pregnancy Discrimination Act,
42 U.S.C. § 2000e(k)4............... ............... 14

Voting Rights Act, 42 U.S.C. § 1973 .................. 1,15,30

42 U.S.C. § 1981 ..........................................................  15

42 U.S.C. § 2000bb(a)(2) ............................................  12

42 U.S.C. § 2000bb(b) ................................................... 8

42 U.S.C. § 2000e(j) ..................................................  13

R. I. Gen. Law § 42-80.1-3 (1993)............... .. 11

OTHER AUTHORITIES

Akhil Reed Amar, The Bill of Rights and 
the Fourteenth Amendment,
101 Yale LJ. 1193 (1992) .............................  19

Richard L. Aynes, On Misreading John Bingham 
and the Fourteenth Amendment,
103 Yale L.J. 57 (1993) ...................................  24

Cong. Globe, 39th Cong.,
1st Sess. (1866) ........... .....................  18, 23, 24, 26

xi



Table of Authorities (continued)
Paee

Other Authorities (continued):

Ruth Bader Ginsburg, Some Thoughts on
Judicial Authority to Repair Unconsti­
tutional Legislation, 28 Clev. St. L. Rev.
301 (1979).........................................................  12

Robert J. Kaczorowski, Revolutionary
Constitutionalism, 61 N.Y.U. L. Rev.
863 (1986) . ........... .. ....................................  18, 27

Robert J. Kaczorowski, The Enforcement 
Provisions of the Civil Rights Act of 
1866: A Legislative History in Light of 
Runyon v. McCrary, 98 Yale LJ.
565 (1989)............... .........................................  26

Kurt T. Lash, The Second Adoption of the Free 
Exercise Clause: Religious Exemptions 
Under the Fourteenth Amendment, 88 Nw.
U. L. Rev. 1106 (1994) ............................... 19, 20

Richard E. Levy, An Unwelcome Stranger:
Congressional Individual Rights Power
and Federalism, 44 Kan. L. Rev. 61 (1995) . . .  23

Religious Freedom Restoration Act, Hearings Before 
the Senate Committee on the Judiciary, 102nd 
Cong., 2d Sess. (1992) ............................. .............9

Religious Freedom Restoration Act, Hearings Before 
the Subcommittee on Civil and Constitutional 
Rights of the House Judiciary Committee on 
the Judiciary, 102nd Cong., 2d Sess. (1992) . . . .  10

xii



Table of Authorities (continued)

Page
Other Authorities (continued):

Bonnie I. Robin-Vergeer, Disposing of the Red
Herrings: A Defense of the Religious Freedom
Restoration Act, 69 S. Cal. L. Rev.
589 ......................................................... .......... . 9

Michael P. Zuckert, Congressional Power under 
the Fourteenth Amendment: The Original 
Understanding of Section 5, 3 Const. Comm.
123 (1986)...........................................................  24

xiii



Interest of Amicus Curiae

The NAACP Legal Defense and Educational Fund, 
Inc. (LDF) was incorporated in 1939, for the purpose, inter 
alia, of rendering legal aid, free of charge, to indigent 
"Negroes suffering injustices by reason of race or color." 
LDF has appeared in numerous cases before this Court. See 
NAACP v. Button, 371 U.S. 415, 422 (1963) (describing LDF 
as a firm with a "corporate reputation for expertness in 
presenting and arguing the difficult questions of law that 
frequently arise in civil rights litigation").

The lessons drawn by LDF and other civil rights 
litigators who have confronted discrimination on a case-by- 
case basis — e.g., (1) that there are myriad and ingenious 
ways in which prejudice may be cloaked in neutral garb, see, 
e.g., Lane v. Wilson, 307 U.S. 268, 275 (1939); (2) that re­
quiring proof of discriminatory motive makes such litigation 
both difficult and divisive, see, e.g., Mobile v. Bolden, 446 
U.S. 55,134-35 (1980) (Marshall, J., dissenting); and (3) that 
facially "neutral" practices often yield harms indistinguishable 
from those resulting from intentional discrimination, see, e.g., 
Griggs v. Duke Power Co., 401 U.S. 424 (1971) — have long 
informed Congress’ judgment about what civil rights 
legislation is "appropriate," often supporting enactment of 
statutes that forbid unjustified unequal treatment, without 
requiring proof of invidious motive (see, e.g., 1991 Civil 
Rights Act, Pub. L. 102-166; Voting Rights Act, 42 U.S.C.
§ 1973). The Legal Defense Fund — and the Nation — have 
a strong interest in affirmation of the validity of such laws 
and of Congress’ power under the Reconstruction 
Amendments to act decisively to protect Americans’ rights.

LDF’s experience is relevant to this case in one 
further respect: LDF attorneys served as counsel in Cooper 
v. Aaron, 358 U.S. 1,18 (1958), the decision reaffirming this 
Court’s authority as primaiy expositor of the Constitution, 
and LDF participated as amicus curiae in Bob Jones Univ. v. 
United States, 461 U.S. 574 (1983), which held the



government’s "fundamental, overriding interest in eradicating 
race discrimination in education," id. at 602, to outweigh an 
asserted religious right to discriminate. While critics of the 
statute now before the Court have claimed those precedents 
to be implicated here, LDF is convinced that the Religious 
Freedom Restoration Act may and should be upheld without 
compromising the principles for which those cases stand.

Summary of Argument

The Religious Freedom Restoration Act (RFRA) is 
an "appropriate" exercise of Congress’ authority to 
"enforce . . .  the provisions" of the Fourteenth Amendment. 
This Court has long read Section 5 to endow Congress with 
power to enact any measure "cariy[ing] out the objects" of 
the Reconstruction Amendments, so long as it "tends to 
enforce submission to the prohibitions they contain, and to 
secure to all persons the enjoyment of perfect equality of 
civil rights." Ex Parte Virginia, 100 U.S. 339, 345-46 (1880). 
RFRA easily passes that test. It creates a real safeguard for 
the right of religious Free Exercise secured against the 
States by the Due Process Clause, see Employment Div. v. 
Smith, 494 U.S. 872 (1990), and it supplies needed 
protection against unequal treatment of minority groups 
whose practices are unpopular or misunderstood.

To cloud its validity, RFRA’s opponents have 
proposed various doctrinal means — including overruling 
Katzenbach v. Morgan, 384 U.S. 641 (1966) — whereby the 
Court might rein in congressional power. These drastic 
revisions have no warrant in the text, structure, or original 
meaning of the Reconstruction Amendments; and far from 
supplying the "special justification" that must accompany 
departure from precedent, developments since Morgan only 
weigh in its favor. Morgan and like decisions have enabled 
Congress to play a central role in protecting basic civil 
rights, allowing federal courts to adhere to a restrained role. 
That salutary arrangement is consistent with the letter and 
spirit of the Constitution. It ought not lightly be scuttled.

2



ARGUMENT

RFRA is "Appropriate" Legislation 
Enforcing the Fourteenth Amendment

A. RFRA is Plainly Within Congress’ Enforcement 
Authority

For more than a century, this Court’s cases have 
emphasized the breadth of the authority conferred upon 
Congress to "enforce by appropriate legislation" the 
guarantees of the Reconstruction Amendments. See Jones 
v. Alfred H. Mayer Co., 392 U.S. 409, 440 (1968). 
Specifically, the standard for testing the validity of an 
exercise of an "enforcement" power has been held to be no 
different from that used to decide whether a law is 
"necessary and proper," see Art. I, § 8, cl. 18, to the 
execution of one of Congress’s other enumerated powers:

Whatever legislation is appropriate, that is, adapted 
to carry out the objects the [Civil War] amendments 
have in view, whatever tends to enforce submission 
to the prohibitions they contain, and to secure to all 
persons the enjoyment of perfect equality of civil 
rights and the equal protection of the laws against 
State denial or invasion, if not prohibited, is brought 
within the domain of congressional power.

Ex parte Virginia, 100 U.S. 339, 345-46 (1880) (quoted in 
South Carolina v. Katzenbach, 383 U.S. 301, 327(1966)); 
accord City of Rome v. United States, 446 U.S. 156, 174 
(1980) ("Congress’s authority under § 2 of the Fifteenth 
Amendment, [is] no less broad than its authority under the 
Necessary and Proper Clause"); see also Katzenbach v. 
Morgan, 384 U.S. 641, 653 (1966) (Court need only to 
"perceive a basis" for exercise of enforcement power).1

1Compare McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 
(1819) ("Let the end be legitimate, let it be within the scope of the 
constitution, and all means which are appropriate, which are plainly

3



These principles are fully consistent with the text, history, 
and purposes of the Reconstruction Amendments, see infra, 
and they are entirely sufficient to sustain RFRA.

RFRA’s detractors have argued that the Act’s "ends" 
are not "legitimate," suggesting that the Act is not truly 
"remedial," either because it reaches conduct, i.e. that 
authorized by certain "neutral laws of general application," 
whose constitutional validity under Employment Div. v. 
Smith, 494 U.S. 872 (1990), is plain; or, more plausibly, that 
it is not "plainly adapted" to those ends, because the degree 
of such "overbreadth" is unacceptably high.

As for the first, any suggestion that a law loses its 
"remedial" character when it sweeps in conduct that is not in 
itself prohibited by the Constitution has been rejected even 
by Justices dissenting in enforcement power cases, see, e.g., 
City of Rome, 446 U.S. at 209 (Rehnquist, J., dissenting) ("It 
has never been seriously maintained . . . that Congress can 
do no more than the judiciary to enforce the Amendments’ 
commands"), and similar arguments have been firmly 
rejected in related settings, see, e.g., United States v. United 
States Gypsum Co., 340 U.S. 76, 88-89 (1950) (antitrust 
remedy may prohibit conduct that is "entirely proper when 
viewed alone").

Even the less extreme indictments of RFRA’s 
breadth are defective, for they: (1) severely overstate the 
extent to which the statute reaches beyond the area of 
constitutional protection and also the consequences of falling 
within the Act’s reach; (2) slight Congress’ substantial 
expertise in designing civil rights remedies; and (3) overlook 
altogether the ways in which RFRA’s breadth affirmatively 
advances important objectives related to "the enjoyment of 
perfect equality of civil rights," Ex Parte Virginia, 100 U.S. at 
346.

adapted to that end, which are not prohibited, but consist with the 
letter and spirit of the constitution, are constitutional").

4



1. Congress Could Reasonably have Determined that RFRA 
was Needed to Safeguard the Constitutional Guarantee of 
Religious Free Exercise

Suspicion about RFRA’s bona fides as enforcement 
of the Smith Free Exercise right appears to rest on one or 
more of the following suppositions: (1) that the gap between 
the constitutional right and the statutory guarantee is large; 
(2) that "real" violations of the Constitutional guarantee (i.e., 
laws "targeting" religious practices) are infrequent and easily 
detected; and/or (3) that the consequences of coverage are 
grave. None of these is fully correct.

First, although the majority opinions in Smith and 
Church of the Lukumi Babalu v. City of Hialeah, 508 U.S. 
520 (1993), place laws "targeting" religion at the center of 
the Free Exercise Clause’s concern, it bears emphasis that 
Smith recognized two other situations in which heightened 
scrutiny is warranted as a matter of constitutional law: when 
"hybrid" rights are burdened, 494 U.S. at 882, and when the 
challenged action involved "individualized" consideration, id. 
at 884. Indeed, Smith gives no indication that these 
categories are to be conceived narrowly, see id. at 882 
(noting that it is "easy to envision" a "hybrid" claim rooted in 
the right to Free Association — even though the Court 
apparently has never decided a case explicitly on mixed, 
religion and association, grounds); see also Bowen v. Roy, 476 
U.S. 693, 708 (1986) (Burger, C.J., concurring) (in an 
individualized determination case, "refusal to extend an 
exemption to an instance of religious hardship suggests a 
discriminatory intent"). Any determination of RFRA’s 
"overbreadth" would need to take into account the full range 
of situations to which, consistent with Smith, heightened 
constitutional scrutiny is still applicable.2

2 Indeed, the facts of this case, involving denial of a congregation’s 
(associational) right to worship together and the extinction of an 
owner’s right to develop property as he sees fit, might well qualify for 
heightened constitutional scrutiny as a "hybrid." There might also be

5



Similarly, no "overbreadth" judgment could rest on 
the (supposed) paucity of recent instances of deliberate 
targeting: assuming for argument’s sake that the number of 
such cases is modest, infrequency could as well be an 
indication of the efficacy of the deterrents (i.e., the Sherbert 
test and, later, RFRA) as of the rarity of the offense.

Also plainly relevant to the reasonableness of 
Congress’s judgment are the consequences of any statutory 
overbreadth. While Oregon v. Mitchell, 400 U.S. 112 (1970), 
and Katzenbach v. Morgan, 384 U.S. 641 (1966), involved 
federal statutes that operated to void certain State laws that, 
by hypothesis, would have been upheld judicially, RFRA is 
not so rigid.. Rather, RFRA gives governmental defendants 
an opportunity to defend their laws under a standard that 
produces substantial convergence, if not complete overlap 
with the Constitution’s requirement.3

issues as to whether the law creating the landmark district is 
sufficiently "general" to qualify for Smith’s safe harbor or whether the 
process by which building permits are granted and denied may be 
treated as an "individualized exemption" regime. Significantly, these 
latter sorts of issues are highly fact-intensive, and their full litigation 
requires substantial resources. A lone individual might have far more 
difficulty bringing such a case — or persuading an attorney to do so 
— than might a well-established church.

3 See City o f Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) 
(O’Connor, J.) ("purpose" of strict scrutiny is to "smoke out" 
illegitimate motives); EEOC v. Wyoming, 460 U.S. 226, 239 (1983) 
(ADEA "requires the State to achieve its goals in a more 
individualized and careful manner than would otherwise be the case, 
but it does not require the State to abandon those goals, or to 
abandon the public policy decisions underlying them"); cf. South 
Carolina v. Katzenbach, 383 U.S. at 331 (noting that Voting Rights 
Act provided for "the possibility of overbreadth").

While some practices may fall under RFRA that would have 
survived under the Smith regime, that would likely be a consequence 
of the Act’s shift in the burden of persuasion (and the risk of 
nonpersuasion) from plaintiffs to defendants. While Petitioner

6



In the end, acknowledging the significance of factors 
such as likelihood of detection, litigation costs, and 
likelihood and cost of error underscores the point that 
ensuring enforcement of the Free Exercise guarantee 
involves characteristic elements of legislative competence 
and expertise. Not only is Congress best equipped to 
register and balance the relative dangers of over- and under­
deterrence, but it does so informed by long experience 
drafting and overseeing statutes securing civil rights and civil 
liberties.4

suggests that with such a shift in burden, Congress has "tumjed] day 
to night," Br. at 20, this Court’s cases counsel a more restrained view, 
see City of Rome, 446 U.S. at 214 (Rehnquist, J., dissenting) (in light 
of "difficulties of proving [intent] . . . Congress could properly 
conclude that as a remedial matter it was necessary to place the 
burden of prooff]" on government defendants); Plant v. Spendthrift 
Farm, Inc., 115 S. Ct. 1447, 1457 (1995) ("Congress can eliminate . .

a particular element of a cause of action that plaintiffs have found 
it difficult to establish").

Moreover, even laws incorporating a rule that outlaws 
discriminatory effects (without regard to a jurisdiction’s motives), are 
not inappropriate remedial measures. Such laws typically implicate 
a second -  and fully legitimate -  sort of remedial power: the 
authority to address the persisting effects of past discrimination; see, 
e.g., Gaston County v. United States, 395 U.S. 285, 296 (1969) 
("impartial" literacy test ”fair[ly]" administered, may be suspended, so 
as to deny effect to past discrimination in education); see also The 
Civil Rights Cases, 109 U.S. 3, 11 (1883) (noting Congress’s 
unquestioned authority to "enact appropriate legislation correcting the 
effects o f . . . prohibited state laws"). That strand of the legislature’s 
remedial power is not implicated in this case.

ASee Fullilove v. KLutznick, 448 U.S. 448,502-03 (1980) (Powell, J., 
concurring) ("Congress has no responsibility to confine its vision to 
the facts and evidence adduced by particular parties. Instead, its 
special attribute as a legislative body lies in its broader mission to 
investigate and consider all facts and opinions that may be relevant 
to the resolution of an issue. One appropriate source is the 
information and expertise that Congress acquires in the consideration

7



Seen in this light, the "appropriateness" of RFRA’s 
main innovation — providing a cause of action that depends 
on (relatively easy to detect) burdens on practice, rather 
than on the (more elusive) "generality" vel non of the law 
imposing the burden -- should not be second-guessed. Cf. 
McCulloch v. Maryland, 17 U.S. (4 Wheat.) at 423 ("where 
the law is not prohibited, and is really calculated to effect 
any of the objects entrusted to the government, to undertake 
here to inquire into the degree of its necessity, would be to 
pass the line which circumscribes the judicial department").

2. RFRA Also Effectuates Core Concepts of Equal 
Protection

a. RFRA Provides Protection for Minorities

As much as the Act was meant to supply a fully 
effective safeguard for the constitutional immunity from laws 
"prohibiting the free exercise of religion," RFRA’s text, 
structure, and legislative history disclose a distinct, 
complementary statutory purpose: to assure equal treatment 
for "all," see 42 U.S.C. § 2000bb(b), equally weighty religious 
claims. When this aim is taken into account, RFRA’s 
breadth ceases altogether to be ground for constitutional 
suspicion and instead weighs powerfully in its favor, as 
reflecting the wholly legitimate concern (explicitly 
acknowledged in Smith, amply recorded in history and 
familiar, no doubt, from congressional experience) that a 
system in which accommodations of religious practice must 
be obtained, one at a time, through the political process 
poses a deep threat to unpopular, uncommon, or poorly 
understood religious faiths -- and to principles of equality, in 
general. Cf. Larson v. Valente, 456 U.S. 228, 245-46 (1982) 
("‘There is no more effective practical guaranty against 
arbitrary and unreasonable government than to require that 
the principles of law which officials would impose upon a 
minority must be imposed generally.’") (citing Railway

and enactment of earlier legislation").

8



Express Agency, Inc. v. New York, 336 U.S. 106, 112 (1949) 
(Jackson, J., concurring)).

If the testimony heard by Congress before RFRA’s 
enactment made one point above all others, it was that the 
consequences of the Smith rule -  i.e., a regime in which any 
protection for religious exercise beyond the modest 
constitutional minimum was a matter of legislative grace — 
would bear unequally on adherents of "minority" religions, 
typically "discrete and insular" groups whose ability to 
influence the political process is negligible and whose ways 
are most likely misunderstood by the societal mainstream.5

But even if Congress had held no such extensive 
hearings, the threat of unequal treatment is patent enough 
to be the subject of judicial notice, see, e.g., Goldman v. 
Weinberger, 473 U.S. 503, 512 (1986) (Stevens, J. concurring) 
(stressing "interest in uniform treatment for the members of 
all religious faiths" and noting danger that, an Orthodox 
Jew’s claim to wear a yarmulke might be accommodated, 
while "a similar claim on behalf of a Sikh or a Rastafarian

5See, e.g., Religious Freedom Restoration Act, Hearings Before the 
Senate Committee on the Judiciary, 102nd Cong., 2d Sess. 5-7 (1992) 
(testimony recounting officials’ refusal to respect objection, grounded 
in Hmong religion, to performance of autopsy). In many cases, 
although not always, these groups are racial and ethnic minorities 
who face additional prejudice and misunderstanding on those 
grounds. See, e.g., Clay a/k/a Ali v. United States, 403 U.S. 698 (1971) 
(Black Muslim); Yang v. Stumer, 780 F. Supp. 558 (D.R.I. 1990) 
(Hmong); Munn v. Algee, 924 F.2d 568 (5th Cir. 1991) (African 
American Jehovah’s Witness); OS HA Notice CPU 2 (Nov. 5, 1990) 
(revoking exemption from hard hat rule for Sikhs); Campos v. 
Coughlin, 854 F. Supp. 194 (S.D.N.Y. 1994) (Santeria); Toledo v. 
Nobel-Sysco, Inc., 892 F.2d 1481 (10th Cir. 1989) (Native Americans); 
Robinson v. Foti, 527 F. Supp. 1111, 1113 (E.D. La. 1981) 
(Rastafarian). See generally Bonnie I. Robin-Vergeer, Disposing of the 
Red Herrings: A  Defense of the Religious Freedom Restoration Act, 69 
S. C a l . L. R e v . 589, 749 & n.659 (1996) (gathering congressional 
testimony).

9



might readily be dismissed"), or, as Smith put it: "It may 
fairly be said that leaving accommodation to the political 
process will place at a relative disadvantage those religious 
practices that are not widely engaged in." 494 U.S. at 890. 
Indeed, those legislators who voted on RFRA no doubt had 
an additional frame of reference: their own experience in 
trying, in piecemeal fashion, to provide protection for 
religious practices. See House Hearings at 123 (Rep. 
Solarz) ("we as experienced legislators should realize" that 
without RFRA "religion will be subject to the standard 
interest group politics that affect our many decisions. It will 
be the stuff of postcard campaigns, 30-second spots, 
scientific polling, and legislative horse trading"). See 
Edwards v. AguiUard, 482 U.S. 578, 637 (1987) (Scalia, J., 
dissenting). See also Board of Educ. o f Kiryas Joel v. Grumet, 
114 S. Ct. 2481, 2498 (1994) (O’Connor, J., concurring) ("A 
group petitioning for a law may never get a definite 
response, or may get a "no" based not on the merits, but on 
the press of other business or the lack of an influential 
sponsor").6

Nor are considerations of equal treatment matters for 
casual concern: a regime in which individuals with essentially 
similar religious claims receive different treatment from 
government would be a constitutional violation, see generally

6 Although true "uniformity" is likely an unattainable ideal even in 
the courts, see Goldman at 512 (Stevens, J., concurring) (stressing 
difficulty of articulating a robust standard); but c f Adarand v. Pena, 
115 S. Ct. 2097, 2113 (1995) ("strict [judicial] scrutiny does take 
’relevant differences’ into account"), the Congress that enacted RFRA  
was surely justified in concluding that the judicial branch was a more 
promising forum from which to seek principled, consistent decisions 
than the legislature. See also Kiryas Joel, 114 S. Ct. at 2491 (noting 
that legislature’s failure to act is generally not reviewable).

10



Kiryas Joel, 114 S. Ct. at 2497 (O’Connor, J., concurring),7 
which a conscientious member of Congress would have the 
unquestioned power and responsibility to correct under 
section 5 of the Fourteenth Amendment. See generally 
Larson, 456 U.S. at 245 ("Free exercise . . . can be 
guaranteed only when legislators — and voters — are 
required to accord to their own religions the very same 
treatment given to small, new, or unpopular 
denominations").

Although it remains possible for State governments 
to avoid such Equal Protection problems themselves, see, 
e.g., R. I. Gen. Law § 42-80.1-3 (1993), and theoretically 
possible for courts to adjudicate claims of denial of equal 
treatment on a case-by-case basis, see, e.g., Olsen v. DEA, 
878 F.2d 1458 (D.C. Cir. 1989) (Ginsburg, J.), Congress was 
fully justified in believing that equality would be 
inadequately protected at the local level, see Croson, 488 
U.S. at 523 (Scalia, J., concurring) ("[Discrimination against 
any group finds a more ready expression at the state and 
local than at the federal level"), and that norms of equal 
treatment would go underenforced if left to judicial Equal 
Protection analysis, see Olsen, 878 F.2d at 1470-71 (Buckley, 
J., dissenting).

As to the latter, imposing obstacles would stand in 
the way of any individual challenging legislative failure to 
provide a religious accommodation on Equal Protection 
grounds, see Kiryas Joel, and a successful challenge to the 
grant of an exemption to another religious claimant 
presumably would require persuasive proof: (1) that the two 
claims were comparably sincere; (2) that the burdens on 
religious practice were similarly substantial; and (3) that the

7"[Tjhe Religion Clauses, the Free Exercise Clause, the 
Establishment Clause, the Religious Test Clause . . . and the Equal 
Protection Clause . . .  all speak with one voice on this point: absent 
the most unusual circumstances, one’s religion ought not affect one’s 
legal rights or duties or benefits."

11



government policies were similarly amenable to modification. 
Cf. United States v. Armstrong, 116 S. Ct. 1480 (1996) 
(discussing required Equal Protection showing). And even 
where a religious claimant could discharge that burden, of 
course, she would run the risk that the relief ordered would 
be to strike down the existing accommodation, rather than 
enlarge the beneficiary class, see Olsen, 878 F.2d at 1464; 
Califano v. Jobst, 434 U.S. 47, 56 n.14 (1977); see generally 
Ruth Bader Ginsburg, Some Thoughts on Judicial Authority 
to Repair Unconstitutional Legislation, 28 Clev . St . L. R ev . 
301 (1979) -- a result almost certain to foster acrimony 
among adherents of different religions and deepen hostility 
to already unpopular religious groups. Under the circum­
stances, Congress could easily have determined that even the 
most meritorious claims to equal treatment would go 
unenforced, and that a uniform, national standard was the 
necessary and appropriate answer.

b. RFRA Further Assures Equal Protection of
Fundamental Rights and Promotes Impartial
Governance

RFRA has additional Equal Protection dimensions as 
well. In enacting the statute, Congress codified its 
determination that "laws 'neutral’ toward religion may 
burden religion as surely as laws intended to interfere with 
religious exercise," 42 U.S.C. § 2000bb(a)(2). This finding, 
the product of Congress’s unquestioned fact-finding 
competence, is in no way subversive of Smith — which held 
that the constitutional bar on "law[s] . . . prohibiting free 
exercise" supplies authority for invalidating only the second 
kind of law, but did not purport to decide that the effects of 
both sorts of law are fundamentally different (i.e., that the 
burdens of a neutral law are easier to bear). And RFRA 
reflects a further, equally reasonable, congressional 
judgment: that even if it is permissible to draw some 
distinction between individuals harmed by "neutral" action 
and those burdened by "non-neutral" laws, equality principles

12



impose a limit on inequalities of legal entitlement that may 
permissibly be grounded on that distinction.

There are three ways in which that determination 
might be understood to "elaborate upon the direct [Equal 
Protection] command of the Constitution," Oregon v. 
Mitchell, 400 U.S. at 296 (Stewart, J.). First, Congress could 
have decided that laws based on indifference or insensitivity 
to, or misunderstanding of, religion, although perhaps not 
unconstitutional in themselves, come close enough to the 
antagonistic laws banned by the First Amendment of its own 
force to warrant prohibition. Cf. Lukumi, 508 U.S. at 524 
(noting that defendant "officials . . .  did not understand, 
failed to perceive, or chose to ignore" their obligation not to 
target religious practice).

Or Congress might have determined that religious 
practice is so intertwined with belief that the governmental 
duty of impartiality properly extends to the latter, along with 
the former, see, e.g., 42 U.S.C. § 2000e(j) (duty of 
employment nondiscrimination on account of religion 
includes obligation "to reasonably accommodate . . .  an 
employee’s or prospective employee’s religious observance 
or practice").

Finally, without questioning whether the distinction 
drawn in Smith, between individuals burdened by non­
neutral laws and those who shoulder the "incidental" burdens 
imposed by neutral ones, is necessaiy or sensible as a matter 
of First Amendment interpretation, Congress was permitted to 
conclude, as a matter of Equal Protection, not to allow vast 
inequalities of legal right to rest on that distinction. Cf 
Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 880-82 
(1985) (State law that does not violate the Commerce Clause 
may be struck down as "discriminatory" under the Equal 
Protection Clause); Hunter v. Underwood, 471 U.S. 222, 233 
(1985) (the fact that felon disenfranchisement is not closely 
scrutinized under the "fundamental rights" prong of Equal 
Protection, see Richardson v. Ramirez, 418 U.S. 24 (1974), 
does not insulate it from invalidation for having a

13



discriminatory purpose). See also Morgan, 384 U.S. at 654 
n.15 (noting that Court’s "cases have held that the States can 
be required to tailor carefully the means of satisfying a 
legitimate state interest when fundamental liberties and 
rights are threatened, and Congress is free to apply the same 
principle in the exercise of its powers") (citations omitted).

The same principle applies to other legislation 
whereby Congress has undertaken (through exercise of 
Article I and Section 5 powers), to impose a standard of 
equal treatment that the judiciary has not held the 
Constitution of its own force to require. Compare, e.g., 
Americans with Disabilities Act, 42 U.S.C. § 12201 et seq.; 
Age Discrimination in Employment Act, 29 U.S.C. § 621 et 
seq.; Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) 
with Cleburne (classifications based on mental retardation do 
not warrant heightened scrutiny); Massachusetts Bd. of 
Retirement v. Murgia, 427 U.S. 307 (1976) (per curiam) (age); 
Geduldig v. Aiello, 417 U.S. 484 (1974) (pregnancy); compare 
also Washington v. Davis, 426 U.S. 229 (1976) (disparate 
impact alone does not violate Equal Protection) with 
Connecticut v. Teal, 457 U.S. 447 (1982) (applying Title VII 
disparate impact standard to State defendant).

Such laws express "the prevailing sense of justice in 
this country," Patterson v. McLean Credit Union, 491 U.S. 
164, 174 (1989), and have become part of the "warp and 
woof of civil rights law," Monell v. New York City Dept, of 
Social Servs., 436 U.S. 658, 696 (1978). As is explained infra, 
such legislation acknowledges that judicial enforcement of 
principles of equality often reflects the unavoidable 
limitations of: (a) the judiciary’s status as a politically 
unaccountable branch; (b) its circumscribed competence to 
resolve broad questions of social policy; as well as (c) 
Congress’ authority, conferred explicitly by the Fourteenth 
Amendment, to enact legislation enforcing the Equal 
Protection Clause. See Harper v. Virginia Bd. of Elections, 
383 U.S. 663, 678-79 (1966) (Black, J., dissenting); see also 
Missouri v. Jenkins, 115 S. Ct. 2038, 2061 (1995) ("Unlike

14



Congress, which enjoys discretion in determining whether 
and what legislation is needed to secure the guarantees of 
the Fourteenth Amendment, federal courts have no 
comparable license") (internal citations omitted).
B. There is no Justification for Re-Writing the Law 
Governing Congress’ Enforcement Power

If established principles of constitutional law do not 
supply the basis for invalidating RFRA, Petitioner seems to 
argue, it is those principles — rather than its challenge -- that 
should give way. In that spirit, Petitioner and its amici have 
proposed several ways in which the Court might depart from 
its prior decisions, in order to strike down RFRA: the Court 
might rule that the Section 5 power exists only to enforce 
Equal Protection principles and not those rights the Court 
has held protected by the Due Process guarantee (or, at 
least, not all of them), or, they suggest, the broad 
formulation of congressional power set out in Katzenbach v. 
Morgan might be disavowed.

These invitations to abandon precedent must be 
rejected. First, it is far from apparent that even re-writing 
the law in the manner suggested would yield the result 
sought. Limiting congressional power to Equal Protection 
concerns, for example, would by no means sound the death 
knell for RFRA, see supra (discussing Equal Protection 
rationales for RFRA). Moreover, no "special justification," 
see Arizona v. Rumsey, 467 U.S. 203, 212 (1984), whatever 
has been identified for rolling back the Court’s enforcement 
power case law, nor is any apparent. Finally, as is shown 
infra, there is no basis in constitutional text, structure, or 
original meaning for concluding that the case law is wrong.

1. Congress Has Authority to Enforce "Incorporated" Rights

Petitioner has suggested that this case might be 
distinguished from others in which Congress’ power to 
enforce the guarantees of the Reconstruction Amendments 
have been upheld, because RFRA, unlike 42 U.S.C. § 1981, 
see Runyon v. McCrary, A ll U.S. 160 (1976), or 42 U.S.C.

15



§ 1973b, see City of Rome, was passed only to secure the 
right to free exercise of religion, a right that is secured by 
the Fourteenth Amendment only by its "incorporation" in 
the Due Process Clause, see Cantwell v. Connecticut, 310 
U.S. 296 (1940), whereas those other statutes have involved 
the "core" power to address denials of Equal Protection. 
This suggestion suffers from two fatal defects: first, as has 
been shown above, RFRA plainly was enacted pursuant to 
Congress’ power to enforce principles of Equal Protection, 
and second, a rule denying Congress the power to enforce 
"provisions" of the Fourteenth Amendment other than the 
Equal Protection Clause is not only incompatible with 
constitutional text and binding precedent but would make no 
sense in light of the history and purposes of the Fourteenth 
Amendment.

To be sure, it is a historical fact that the Fourteenth 
Amendment’s framers were most concerned with securing 
the basic legal rights of African Americans — and it is 
similarly undeniable that Congress’ enforcement power is at 
its zenith when dealing with matters of racial discrimination, 
which are the concern of the Thirteenth and Fifteenth 
amendments, as well as the Fourteenth, see Georgia v. 
Rachel, 384 U.S. 780 (1966); Carpenters v. Scott, 463 U.S. 
825, 835-37 (1983); cf Oregon v. Mitchell, 400 U.S. at 128 
(opinion of Black, J.) ("Where Congress attempts to remedy 
racial discrimination under its enforcement powers, its 
authority is enhanced by the avowed intention of the framers 
of the Thirteenth, Fourteenth, and Fifteenth Amendments"). 
It does not follow, however, that Congress’s power to enact 
"appropriate" legislation enforcing the Fourteenth 
Amendment is limited to situations in which principles of 
racial equality are threatened, cf, id. at 143-44 (Douglas, J.). 
On the contrary, any such limitation on congressional power 
is inconsistent with the text of the Fourteenth Amendment 
and would have been highly alien to the understanding of 
those who framed and ratified it.

16



The terms of Section 5 offer no basis on which to 
ground a distinction between the Equal Protection guarantee 
and the other rights secured by the Fourteenth 
Amendment’s first section. Instead, the text provides, with 
no limitation or qualification, for congressional power to 
enforce "the provisions of this Article," through "appropriate" 
legislation. And Hutto v. Finney, 437 U.S. 678 (1978), Maher 
v. Gagne, 448 U.S. 122 (1980), and United States v. Price, 383 
U.S. 787, 789 (1966), confirm what plain meaning would 
suggest: that there is "no doubt of the power of Congress to 
enforce . . . every right guaranteed by the Due Process 
Clause of the Fourteenth Amendment" (internal citation 
omitted).8

Nor is there any substantial reason, as a matter of 
political principle, why Congress’ discretion to vitiate the 
threat posed by local majorities to unpopular beliefs or 
practices would be more restricted than its power to protect 
against threats to unpopular groups. On the contrary, and 
as the Court’s cases teach, efforts to distinguish between 
threats to liberty and to equality often prove unstable. See, 
e.g., Loving v. Virginia 388 U.S. 1 (1967) (striking down anti­
miscegenation law as denying Due Process right to marry 
and Equal Protection); cf. West Virginia Bd. of Educ. v. 
Barnette, 319 U.S. 624 (1943) (invalidating compulsory flag 
salute law on Free Speech grounds); Niemotko v. Maryland, 
340 U.S. 268, 273 (1951) (holding that "[t]he right to equal

8In Oregon v. Mitchell, a majority of the Justices held that Congress’ 
power to enforce the right to travel, the precise textual source for 
which is no more certain than for "incorporated" rights, see Griffin v. 
Breckenridge, 403 U.S. 88, 105-06 (1971), could supply the basis for 
supplanting State residency requirements for voting in federal 
elections (including those requirements which were not, in 
themselves, violative of the Fourteenth Amendment), see 400 U.S. at 
147-50 (Douglas, J.); id. at 237 (Brennan, J, joined by White and 
Marshall, JJ.); id. at 285 (opinion of Stewart, J., joined by Burger, 
C.J., and Blackmun, J.). See also Fitzpatrick v. Bitzer, 427 U.S. 445 
(1976) (gender discrimination).

17



protection of the laws, in the exercise of those freedoms of 
speech and religion protected by the First and Fourteenth 
Amendments" to have been denied by refusing park permit 
to Jehovah’s Witnesses, out of "dislike for or disagreement 
with the Witnesses or their views"); see generally Harry 
Kalven, Th e  Negro  and the F irst Amendment (1965).

This interconnection between the Equal Protection 
guarantee and the liberties secured by the other clauses of 
the first section of the Fourteenth Amendment is by no 
means a modem discovery. Historical scholarship and the 
debates of the Reconstruction Congresses themselves show 
the Nineteenth Century Republicans responsible for 
drafting and securing the Amendment’s ratification to have 
been acutely aware of the relationship between racial 
injustice and denials of civil liberties. See, e.g., MICHAEL 
Kent  Curtis, No State Shall Abridge  (1986); David 
A. R ichards, Conscience and the Constitution (1993). 
It had been out of solicitude for slavery, the Amendment’s 
supporters repeatedly asserted, that the Framers of the 
Constitution had failed to make the Bill of Rights applicable 
to the States, see, e.g., Cong. Globe, 39th Cong., 1st Sess. 
1090 (1866) (Rep. Bingham). Repeatedly, in the debates 
over the Amendment and other civil rights legislation, 
Republicans asserted that the compulsion to protect slavery 
from all incursions had led Southern States to interfere with 
rights of free speech, freedom of the press, and association, 
to permit mob justice, and to inflict cruel and unusual 
punishment. See, e.g., Cong. Globe, 39th Cong., 1st Sess. 
474 (1866) (Sen. Trumbull). And these injustices were not 
believed to be a thing of the past: accounts of assaults on 
the basic rights of blacks and Republican sympathizers at the 
hands of unreconstructed rebels were being regularly 
received. See Robert J. Kaczorowski, Revolutionary 
Constitutionalism, 61 N.Y.U. L. Rev . 863, 875 n.44 (1986). 
Whatever the precise intentions of the 39th Congress with 
regard to incorporating the guarantees of the original Bill of 
Rights against the States through the Fourteenth

18



Amendment, their dismay over these infringements of civil 
liberties by the States was undeniable.9

Indeed, the connection, as a matter of history, 
between concern for black freedom and for religious free 
exercise may have been closest of all.10 Religion had

9 Although Petitioner does not suggest that the Court overrule 
C a n tw e ll or the many other decisions applying the Bill of Rights to 
the States, the argument that the Section 5 power does not 
comprehend such rights has as its tacit premise a view of 
incorporated rights as a "poor relation" to more textually explicit 
Fourteenth Amendment guarantees. To the extent that it is relevant, 
recent historical scholarship has substantially fortified the position 
that the Framers d id  intend the Fourteenth Amendment to secure the 
Bill of Rights against the States. S ee  g en era lly CURTIS; se e  a lso  Akhil 
Reed Amar, The B i l l  o f  R ig h ts  a n d  th e  F o u r te en th  A m e n d m e n t , 101 
Y a l e  L. J. 1193, 1235 (1992).

10It has been argued, se e  A m ic u s  Clarendon Foundation Br. at 25- 
26, that even if Congress has broad power to enforce incorporated 
rights, the "plain language" of the First Amendment somehow makes 
the Free Exercise right uniquely inappropriate for congressional 
action. To the extent that this argument stresses the phrase 
"Congress shall make no law," it is really an argument against 
in c o rp o ra tio n  of each of the clauses of the First Amendment, 
including the Free Speech Clause — a position toward which the 
Court has shown no inclination of heading, see, e .g ., M a d se n  v. 
W o m e n ’s  H e a lth  C tr., In c . , 512 U.S. 753 (1994) (applying "First 
Amendment" standards to injunction issued by state judge).

To the extent that this argument depends on the original intent of 
the Framers of the First Amendment, it "gets the wrong history right," 
Kurt T. Lash, T he S e c o n d  A d o p t io n  o f  th e  F ree  E x erc ise  C lau se:  
R e lig io u s  E x e m p tio n s  U n d e r  th e  F o u rteen th  A m e n d m e n t, 88 Nw. U.L. 
R e v . 1106, 1196 (1994). S ee  4 4  L iq u o rm a r t, In c . v. R h o d e  I s la n d , 116 
S. Ct. 1495, 1515 (Scalia, J., concurring) (relevant inquiry is 
understanding of Framers of the F o u rteen th  Amendment).

Nor is the "textual" argument overly careful about the consti­
tutional text: although the First Amendment forbids Congress from 
enacting a law "respecting" the Establishment of Religion, implying 
a complete legislative disability on the subject, it denies Congress the

19



played a crucial role in the history of slavery as a political 
and constitutional issue. Many of the original Abolitionists 
had come to oppose slavery on religious grounds, and their 
antagonists in the Southern elite classes believed religiously 
motivated revolt to be the greatest threat to the institution 
of slavery, see e.g., Lash, Free Exercise at 1133-34 (noting that 
Nat Turner, leader of the bloody 1831 uprising, had been a 
minister). This perception led to widespread adoption of 
repressive measures, including laws banning slaves’ 
congregating together or learning to read, meant to prevent 
them from discerning from the Bible any hope of worldly 
liberation; and ultimately, to even more extreme measures, 
aimed at stopping the (Northern-influenced) religious word 
from spreading. See id. at 1133-37; see also Richards at 
125-34. These measures, in turn, escalated awareness among 
religious Northerners about the evil of slavery and deepened 
their conviction that the "peculiar institution" posed a threat 
to the constitutional order. Unsurprisingly, then, denials of 
the right of free exercise and "the rights of conscience" were 
staples of the Republican indictment of the South both 
before and after the war. Cf. Blylew v. United States, 80 U.S. 
581, 597 (1872) (noting that 1866 Act was passed to prohibit 
"those state laws which forbade a free colored person from 
. .. . passing] through the state, from having firearms, or 
from exercising the functions of a minister of the gospel").
2. Katzenbach v. Morgan Was Rightly Decided

Petitioner has further invited the Court to renounce 
"in part" Katzenbach v. Morgan, insofar as that decision 
acknowledged independent congressional power to identify 
situations in which Fourteenth Amendment principles are 
threatened. Once again, it is not clear that Petitioner would 
benefit from any redescription of the outer limits of the

power only to "prohibit)] free exercise." Thus, while a law "enforcing" 
the Establishment Clause might arguably face difficulties, se e  M o rg a n ,  
383 U.S. at 654 n.10, a law "enforcing" the Free Exercise Clause 
encounters no similar First Amendment problem.

20



Fourteenth Amendment enforcement power. As is 
explained above, RFRA is fully sustainable as an exercise of 
Congress’s "remedial" authority: the Act is addressed to 
situations where "violations" — of the Free Exercise Clause, 
of Equal Protection, and of various "hybrid" rights — surely 
do "lurkf]," EEOC v. Wyoming, 460 U.S. at 260 (Burger,
C.J., dissenting). By lightening evidentiary burdens and 
supplying an "up front" guarantee of uniform treatment of 
religious claims, RFRA serves to root out and correct 
unconstitutional practices that would otherwise go 
undetected; and, by requiring government officials to 
consider effects on religion carefully before taking action 
(and to justify actions already taken), the Act prevents 
unconstitutional conduct from occurring in the first place.11

But even were RFRA’s "remedial" credentials less 
impeccable, Petitioner has given no good reason for 
throwing over the 30-year-old Katzenbach decision (which 
commanded a 7-2 majority) -- let alone the "special 
justification" that principles of stare decisis demand. In fact, 
and as intervening opinions of this Court have affirmed, 
Morgan gave an account of Congress’s power to enact 
"appropriate" legislation under the Reconstruction 
Amendments that is faithful to the text and structure of the 
Constitution and to the intentions of the Amendments’ 
framers — and one that has played a constructive part in the 
development of modem civil rights law, as well, see infra.

In fine, Petitioner (implicitly) and Amicus (explicitly) 
ask this Court for more intensive judicial scrutiny of the

nThe characterization of M o rg a n  as recognizing a "substantive" 
constitutional power in Congress has itself been justly criticized as a 
"red herring," see Robin-Vergeer, That decision no more recognizes 
a wide-ranging power in Congress to pronounce literacy requirements 
"unconstitutional" than M c C u llo c h  v. M a ry la n d  acknowledges a 
"substantive" power to charter corporations or U n ited  S ta te s  v. D a rb y , 
312 U.S. 100, 115-17 (1941) a congressional power to "interpret" the 
constitutional term "Commerce . . . among the several States."

21



relationship between congressional enactment and 
constitutional power under the Reconstruction Amendments 
than under Article I; the standard laid down in McCulloch, 
it is suggested, allows Congress too much discretion to 
determine the "appropriatejness]" of measures for enforcing 
the Reconstruction guarantees. This argument runs up 
against formidable difficulties: to begin with, the text of the 
Constitution strongly suggests that the "Necessary and 
Proper" Clause applies — not by analogy, but directly and by 
its own force — to the powers conferred by the 
Reconstruction Amendments. See U.S. CONST, art. I, § 8, 
cl. 18 (Clause applies to "the foregoing powers and all other 
powers vested in the government of the United States"); cf. 
United States v. Rhodes, 27 F. Cas. 785, 789 (C.C.D. Ky. 
1867) (No. 16,151) (Swayne, J.) (Necessary and Proper 
Clause confers power to enforce 13th Amendment).

But even were that not so, and even if the equation 
of review for "appropriate[ness]" standard with scrutiny 
under the Necessary and Proper Clause did not date back 
more than a century, see Ex Parte Virginia, the indictment of 
Morgan would ring hollow. At the very least, the suggestion 
that Congress enjoys less discretion in exercising its 
Fourteenth Amendment power than it does exercising 
powers conferred on it by Article I stands in tension with 
repeated statements, in a variety of settings, that 
congressional power was "enlarged" by the Reconstruction 
Amendments, see, e.g., Bitzer, 427 U.S. at 456; EEOC v. 
Wyoming, 460 U.S. at 240; Gregory v. Ashcroft, 501 U.S. 452 
(1991), and there can be little disagreement that the Framers 
of the original Constitution were more distrustful of 
congressional power than were the authors of the 
Fourteenth Amendment.

Nor, for that matter, is it immediately apparent how 
the interests of candor and political accountability that have 
been featured with increasing prominence in recent 
decisions, see New York v. United States, 508 U.S. at 156; 
United States v. Lopez, 115 S. Ct. 1624 (1995), would be

22



served by creating still greater incentives for Congress to 
cast antidiscrimination legislation as responsive to 
"substantial effects" on interstate commerce, see Katzenbach 
v. McClung, 379 U.S. 294 (1964) (upholding prohibition on 
discrimination in public accommodations, on the ground that 
restaurant purchased a significant fraction of its food from 
interstate vendors).12

These contentions become less convincing still when 
the legislative history of the Fourteenth Amendment is 
closely examined. The original draft of the Fourteenth 
Amendment consisted solely of a grant of legislative 
authority to Congress to enact

all laws which shall be necessary and proper to 
secure the citizens of each State all privileges and 
immunities of citizens in the several States and to all 
persons in the Several States equal protection in the 
rights of life, liberty, and property.

see Cong. Globe, 39th Cong., 1st Sess. 1034 (1866), and 
although that proposal came to be replaced by a version, 
also drafted by Representative John Bingham, containing the 
explicit constraints on State power of Section 1 and the 
enlargement of congressional power of Section 5, the debt

12Although this Court’s opinions sometimes express the concern 
that a broad interpretation of Congress’s "individual rights" power will 
supplant traditional state prerogatives in tort or criminal law, such 
dangers are scarcely absent under the Commerce power, see, e .g ., 
C ip o lo n e  v. L ig e tt  G ro u p , In c . , 505 U.S. 504 (1992) (holding certain 
state common-law causes of action preempted); U n ited  S ta te s  v. L o p e z  
(criminal law). Thus, while Petitioner thunders against the possibility 
that the Enforcement Power would sustain an "Ultimate Speech Act," 
Br. at 27 n.8, intended to facilitate nationwide distribution of hard­
core pornography, a Congress bent on enacting such a law would 
have no trouble doing so on even the most restrained current 
understanding of the Commerce Clause. S ee  g en era lly  Richard E. 
Levy, A n  U n w e lc o m e  S tran ger: C o n g ress io n a l I n d iv id u a l R ig h ts  P o w e r  
a n d  F e d era lism , 44 K a n . L. R e v . 61 (1995).

23



to McCulloch remained plain. See 17 U.S. (4 Wheat.) at 421 
("Let the end be legitimate, let it be within the scope of the 
constitution, and all means which are appropriate . . . are 
constitutional."); cf The Civil Rights Cases, 109 U.S. at 20 (§2 
of 13th Amendment "clothes Congress with power to pass all 
laws necessary and proper for abolishing the badges and 
incidents of slavery"); id. at 51 (Harlan, J., dissenting) ("[t]he 
word ‘appropriate’ was undoubtedly used with reference to 
its meaning, as established by repeated decisions of this 
court") (citing McCulloch).13

^Petitioner’s Amicus, the Clarendon Foundation, repeats the 
allegation that the original Bingham proposal was consigned to "the 
sleep that knows no waking," Br. for Amicus at 5 (quoting Cong. 
Globe, 42d Cong., 1 Sess. app. 115) (1871)), i .e ., that it was "rejected", 
Br. at 6-12, as conferring too much power on Congress. Although 
real concern was expressed about leaving protection of civil rights 
so le ly  in the hands of future legislative majorities (which, presumably, 
would eventually include unreconstructed Southern Democrats), see, 
e .g ., Cong. Globe, 39th Cong., 1st Sess. 1095 (1866) (Rep. Hotchkiss), 
the suggestion that the Amendment’s final form marked a retreat for 
congressional power has been contradicted by modem scholarship, se e  
Michael P. Zuckert, C o n g ress io n a l P o w e r  u n d e r  th e  F o u r te en th  
A m e n d m e n t:  T h e  O rig in a l U n d e rs ta n d in g  o f  S e c tio n  5 , 3 CONST. 
C o m m . 123, 129-34 (1986) (explaining that Bingham's proposal was 
never rejected on the merits and that "[t]he more plausible 
interpretation is that the Democrats did not see postponement as 
equivalent to rejection at all, but as just that -  the postponement, but 
continued life, of a piece of legislation they opposed"). Cf. Richard 
L. Aynes, O n  M is re a d in g  J o h n  B in g h a m  a n d  th e  F o u r te en th  
A m e n d m e n t , 103 Y a l e  L. J. 57 (1993)

As for the main thrust of the Clarendon Foundation Brief, 
depicting the M o rg a n  power as the equivalent of the straw man 
attacked by Representative Bingham’s opponents, i.e . congressional 
license to enact a "‘code of municipal laws for the regulation of 
private rights,’" Br. at 16 (quoting C iv il R ig h ts  C a ses , 109 U.S. at 11), 
neither the statute upheld in M o rg a n  nor RFRA, creates any "private 
rights." In fact, both create "modes of redress against the operation 
of state laws," Br. at 16. If RFRA sought to assure that no local 
landmark law would unduly burden religious free exercise by e n a c tin g

24



But as large as the McCulloch opinion loomed, this 
Court repeatedly has recognized an even more important 
influence on the 39th Congress’s conception of enforcement 
power: Justice Story’s opinion in Prigg v. Pennsylvania, 41 
U.S. 539 (1842), upholding the constitutionality of the 1793 
Fugitive Slave Act. See. e.g., Patsy v. Florida Bd. Of Regents, 
457 U.S. 496, 504 (1983); Monell v. New York City Dept. Of 
Social Services, 436 U.S. 658, 672 (1978). As its abolitionist 
critics were keenly aware, Prigg took a very broad view of 
Congress’s power to enforce the Constitution’s Fugitive 
Slave Clause, see art. IV, § 2, cl. 3, even in the absence of an 
explicit grant of enforcement power, and upheld a private 
cause of action for damages against private defendants, in 
the face of a textual "state action" limitation, see id. ("No 
Person held to Service . . .  in one State, under the Laws 
thereof, escaping into another, shall in Consequence o f any 
Law or Regulation therein, be discharged from such Service") 
(emphasis supplied). Proponents of the Fourteenth 
Amendment cited Prigg as both the model and the measure 
of congressional enforcement power. See 41 U.S. at 612 ("If, 
indeed, the Constitution guarantees the right. . .  the natural 
inference is that the national government is clothed with the 
appropriate authority and functions to enforce it"). Thus,

Surely we have the authority to enact a law as 
efficient in the interest of freedom, now that freedom 
prevails throughout the country, as we had in the

a  n a tio n a l la n d m a rk  law (rather than a law protecting religious 
freedom), th en  the danger warned against by Bingham’s critics — 
equality through uniformity and complete displacement of the States 
— would have come to pass.

When the Clarendon Amicus Brief denies Congress the power to 
"proscribef] . . . state actions that the federal judiciary has declared 
are fully consistent with the provisions of the Constitution," Br. at 21, 
Amicus has parted company not only with the author of the opinion 
of the Court in M o rg a n , but with the dissenter as well, se e  O regon  v. 
M itc h e ll , 400 U.S. at 215-17 (Harlan, J., concurring in part) (Congress 
may suspend literacy test nationwide).

25



interest of slavery when it prevailed in a portion of
the country.

Cong. Globe, 39th Cong., 1st Sess. 475 (1866) (Sen. 
Trumbull) (1866 Act); accord Civil Rights Cases, 109 U.S. at 
53 (Harlan, J., dissenting); see Robert J. Kaczorowski, The 
Enforcement Provisions of the Civil Rights Act of 1866: A  
Legislative History in Light of Runyon v. McCrary, 98 Yale 
L. J. 565, 574 (1989); see also id. at 588 (explaining that 
certain enforcement provisions in 1866 Act were borrowed 
directly from 1850 Fugitive Slave Act).

The Framers of the Reconstruction Amendments, 
moreover, were especially hostile to the notion that 
delegated powers must be strictly construed — a philosophy 
directly bound up in their minds with the legal theories of 
State Sovereignty which had emboldened the Southern 
Secessionists, see Richards at 28-42. Their faith that the 
judiciary could be relied upon to give full effect to the 
protections of the Amendments was also short of complete.

There is still more direct evidence that the Framers 
took a broad, even a "substantive" view of their power under 
the Fourteenth Amendment. The same Congress that 
reported out the Fourteenth Amendment had enacted the 
1866 Civil Rights Act (over a presidential veto), as an 
exercise of the "enforce[ment] by appropriate legislation" 
power conferred by Section 2 of the Thirteenth Amendment. 
If abolition of slavery and involuntary servitude could be 
"enforced" by requiring equal rights to make and enforce 
contracts, purchase property, or testify in court, it verges on 
inconceivable that the 39th Congress would have used 
identical "enforcement" language to express a narrow 
concept of congressional power under the Fourteenth 
Amendment. Although this exceptionally broad 
interpretation of the (13th Amendment) "enforcement" 
power was not free of all contemporaneous constitutional

26



doubt,14 it was upheld in a series of federal court decisions 
and was enthusiastically embraced by the United States 
Executive Branch. See generally Revolutionary 
Constitutionalism at 900-22. Indeed, even the opinion for 
the majority in The Slaughter-House Cases, 83 U.S. 36 (1873), 
while taking a highly restrictive view of the list of "Privileges 
and Immunities" of National citizenship, took an expansive 
view of congressional enforcement power. To recognize a 
broad catalogue of National "Privileges," the Court 
explained, 83 U.S. at 77-78, would mean not only that

these rights [would be] subject to control by Congress 
whenever in its discretion any of them are supposed 
to be abridged by state legislation, but that body may 
also pass laws in advance, limiting and restricting the 
exercise of legislative power by the State in their 
most ordinary and usual functions, as in its judgment 
it may think proper on all such subjects.
Indeed, the proposition that congressional power 

under the Thirteenth Amendment comprehends the 
(substantive) power not merely to prevent slavery but 
"rationally to determine" its "badges and incidents" and "to 
translate that determination into effective legislation" has not 
been a subject of controversy in modem era civil rights 
decisions. Jones v. Alfred H  Mayer Co., 392 U.S. at 440; see 
id. at 449 (Harlan, J., dissenting) (arguing, as a matter of 
statutory interpretation, that Act does not reach private 
discrimination); City of Memphis v. Greene, 451 U.S. 100,125 
(1981) ("’the Enabling Clause of that Amendment 
empowered Congress to do much more’" than "abolish[] 
slavery and establish[] universal freedom")(quoting Jones, 
392 U.S. at 439); Grijfin v. Breckenridge, 403 U.S. at 105; 
Palmer v. Thompson, 403 U.S. 217, 226-27 (1971); cf City of

^Representative Bingham was prominent in believing that the 
Thirteenth Amendment did not supply the power, but his has been 
shown likely to have been a minority view, se e  R e v o lu tio n a ry  
C o n s titu tio n a lism  at 910-11.

27



Rome, 446 U.S. at 207 n.l (Rehnquist, J., dissenting) (noting 
that powers under the Reconstruction Amendments "have 
always been treated as coextensive").

It has finally been suggested that the aspect of 
Morgan that is uniquely troubling is its recognition of a 
"ratchet," whereby Congress’ alleged "substantive" powers of 
constitutional interpretation, see supra, allow it to expand 
upon, but not contract, those protections of the Fourteenth 
Amendment established by judicial decision. This allegation 
is misleading in at least four respects. First, Congress’ 
complete lack of power to contract Equal Protection rights, 
see Mississippi University for Women v. Hogan 458 U.S. 718, 
732 (1982), is a consequence not of Morgan, but of Marbury 
v. Madison, 5 U.S. (1 Cr.) 137 (1803), and applies with no 
greater force when Congress acts under authority conferred 
by the Reconstruction Amendments than under any other 
source of power, see, e.g., Metropolitan Life Ins. v. Ward, 470 
U.S. at 880-82 (1985) (congressional exemption of State laws 
from negative Commerce Clause scrutiny cannot immunize 
them against Equal Protection attack).

Second, as discussed above, the "ratchet’s" "upward" 
dimension is itself the result of a semantic ploy, whereby 
Congress’ election of appropriate means to enforce the 
Fourteenth Amendment is described as a choice of ends 
(thus an "interpretation" of the Constitution), while any 
other exercises of discretion are described in purely 
instrumental terms, see, e.g, McCulloch. But enacting an 
"appropriate" civil rights statute has no more of a "ratchet" 
effect than chartering a bank, and a rights statute no more 
"re-interprets" the Equal Protection guarantee than a law 
reaching in-state manufacturing "re-interprets" the meaning 
of "interstate commerce." At all events, the "ratchet" does 
not operate in one direction, as a matter of theoiy or fact: 
Congress always retains power to repeal the statute it 
enacted, thereby "contracting" rights in precisely the degree 
it once "expanded" them, and Congress has — effectively 
unreviewable — discretion not to wield its powers in the first

28



place (based on a "substantive" understanding of the 
Constitution — or on no reason at all).

This last point is of special significance in this case, 
especially in deciding the proper weight to give stare decisis 
concerns. The long lull in decisions of this Court 
interpreting congressional authority under the 
Reconstruction Amendments was not the result of random 
chance but rather reflects a stark historical fact: that, for the 
better part of a century, Congress studiously neglected all 
responsibility for enforcing the basic rights guarantees of the 
Thirteenth, Fourteenth, and Fifteenth Amendments. This 
inaction was hardly reflective of a good-faith judgment that 
the States were, in fact, supplying "Equal Protection of the 
Laws," that the Right to Vote was not being abridged on 
account of Race or Color, or that the "badges and incidents" 
of the historic system of racial caste had been wiped away. 
It was attributable, rather, to "extraordinary' defects in the 
national political proess," South Carolina v. Baker, 485 U.S. 
505, 512 (1988), including, but not limited to the wholesale 
disenfranchisement of those whose rights were being most 
egregiously denied. This Court’s response was boldly to 
move against racial injustice, in the name of constitutional 
principle, see, e.g., Shelley v. Kraemer, 334 U.S. 1 (1948); 
Bolling v. Sharpe, 347 U.S. 497 (1954); Cooper v. Aaron, at 
considerable risk to the Court’s power and prestige, see also 
Jack Bass, Unlikely Heroes (1981).

The decision in Morgan arose at a very different time, 
when the defects that had long plagued the national political 
process were beginning to be overcome, see R obert Mann, 
The  Walls of Jericho  (1996) (discussing passage of Civil 
Rights Act of 1964), and when Congress had taken up in 
earnest its responsibilities of enforcing the Constitution’s 
civil rights protections. See generally United States v. Price, 
383 U.S. at 806 (noting that, even 15 years earlier, "the 
federal role in the establishment and vindication of 
fundamental rights . . . was neither as pervasive nor as 
intense as it is today").

29



Morgan and other decisions upholding civil rights 
laws, see, e.g., South Carolina v. Katzenbach, recognized this 
to be a wholly salutary development: that Congress, as a 
politically accountable branch (and one not bound by stare 
decisis), as the one best suited for dealing with complex, 
interdependent claims, and most capable of framing broad 
remedial and prophylactic rules, was by far the better 
institution to consider assertions of new "rights" and to 
devise new and better modes for enforcing existing ones. 
This cooperative arrangement, explicit in certain decisions of 
the Court and implicit in others, is entirely "in accordance 
with [the] historical design," Price, 383 U.S. at 806, of the 
Reconstruction Amendments and has proved highly 
beneficial: the Court has been allowed to adhere to 
principles of judicial restraint, while Congress has developed 
substantial expertise in the problems of discrimination and 
civil rights remedies.

This understanding, that Congress may "lead" the 
Court, that it is authorized to make judgments that, while 
consistent with constitutional guarantees, are not strictly 
required by them, has been relied upon by both branches, 
see Pennsylvania v. Union Gas, 491 U.S. 1, 35 (1989) (Scalia, 
J, concurring in part and dissenting in part) (noting judicial 
and congressional reliance on 11th Amendment case law), 
and especially so with regard to legislation securing basic 
rights for individuals whose exclusion from full and equal 
participation in the mainstream has been most long and 
unjust. See Americans with Disabilities Act, 42 U.S.C. 
§ 12101; Age Discrimination in Employment Act, 29 U.S.C. 
§ 621; Voting Rights Act, 42 U.S.C. § 1973(b); Civil Rights 
Act of 1991, Pub. L. 102-166. Neither text, precedent, nor 
principle supports disturbing this settled understanding or 
casting doubt on the validity of such laws. Cf Bush v. Vera, 
116 S. Ct. 1941, 1968-69 (1996) (O’Connor, J., concurring).

Conclusion

For the foregoing reasons, Amicus suggests that the 
judgment below should be affirmed.

30



Respectfully submitted,

Elaine R. J ones 
D irector-Counsel

Theodore  M. Shaw 
Norman J. Chachkin* 
David T. Goldberg  
NAACP Legal D efense and 

Educational Fund , Inc. 
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

*Counsel of Record



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