Amicus Curiae Brief — City of Boerne v. Flores

TABLE OF CONTENTS"

Page

po Ee rr iii

EO bs cece deasesaesieeeses 1

I NE iin oie cba iwe ecceveccens 2

ARGUMENT -- RFRA is "Appropriate" Legislation

Enforcing the Fourteenth

PEE cco USsRU ccc dcecvnse 3

A. RFRA is Plainly Within Congress’

Eeforcement Authority .......-e2scecee- 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

OC Eigmel PYOOGCHION «cc cc ccccceccce 8

a. RFRA Provides Protection for

ER ee 8

b. RFRA Further Assures Equal

Protection of Fundamental

Rights and Promotes Impartial

ee ee 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.

TABLE OF CONTENTS (continued)

Page

B. There is no Justification for Re-Writing

the Law Governing Congress’ Enforcement

POWE occu cctecadeewvbeuesuwatenets 15

1. Congress Has Authority to Enforce

"Incorporated" Rights ............ 15

2. Katzenbach v. Morgan Was Rightly

Decmsee occ cede eneeueseiceue 20

Concdasiom ...sccenta scemecshaeeee bash ates 30

ii

Page

Cases:

Adarand v. Pefa,

115 S. Ce. 2097 (1995S) 0. eee eee ee eee 10

Arizona v. Rumsey,

467 U.S. 203 (1984) ..... 2. cece cece eens 15

Blylew v. United States,

80 U.S. 581 (1872)... 2. eee eee eee eee 20

Board of Educ. of Kiryas Joel v. Grumet,

114 S. Ct. 2481 (1994) ....... eee eeees 10, 11

Bob Jones Univ. v. United States,

461 U.S. 574 (1983)... 2 ee eee eee wees 1

Bolling v. Sharpe,

347 US. 497 (1954)... eee eee eens 29

Bowen v. Roy,

476 U.S. 693 (1986)... ee ee eee eee ees 5

Bush v. Vera,

116 S. Ce. 1941 (1996) ... 2... eee eee eees 30

Califano v. Jobst,

434 U.S. 47 (1977) 2... cece ec cee ececeees 12

Campos v. Coughlin,

854 F. Supp. 194 (S.D.N.Y. 1994) ........----- 9

Cantwell v. Connecticut,

310 U.S. 296 (1940) .... 2. eee ee ee eee: 16, 19

ili

Table of Authorities (continued)

Page

Cases (continued):

Carpenters v. Scott,

SEP CaN GP EUOED. SC onveseveseweseeues 16

Church of the Lukumi Babalu v. City of Hialeah,

Fae Uae GE EPNED ov cnn euwes s cd whe oa 5, 13

Cipolone v. Ligett Group, Inc.,

Pee Sis SUED. 6 hee dR Ses he CRS H 23

City of Cleburne v. Cleburne Living Ctr., Inc.,

i iS oe Be ee en 14

City of Memphis v. Greene,

en CE PRUNES vivcdccvesceteeuncieer 27

City of Mobile v. Bolden,

GOP Se EOD oe cccccccesn ced bbewows 1

City of Richmond v. J.A. Croson Co.,

GP ae SEED Si rdescczecvewuwas 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,

a eee errr: oo errr “tee

Connecticut v. Teal,

A FBP eer etree 14

Cooper v. Aaron,

St Ge ED “eed ecinctasesteecsus 1,2

ble of orities (continued)

Page

Cases (continued):

EEOC v. Wyoming,

460 U.S. 226 (1983) ......--eeeeeees 6, 21, 22

Edwards v. Aguillard,

482 U.S. 578 (1987)... eee eee eee eees 10

Employment Div. v. Smith,

494 U.S. 872 (1990) ... 2... cc cccccceees passim

Ex parte Virginia,

100 U.S. 339 (1880) . 1... eee eee eens 3, 4

Fitzpatrick v. Bitzer,

427 U.S. 445 (1976)... ee eee ee eees 17, 22

44 Liquormart, Inc. v. Rhode Isiand,

116 S. Ce. 1495 (1996) 2... cece ccccvenes 19

Fullilove v. Klutznick,

448 U.S. 448 (1980)... cece cece eens 7

Gaston County v. United States,

395 US. 265. (ISGP). ccc ccc cecccccccees 7

Geduldig v. Aiello,

417 U.S. 464 (1974) 0. ccc ccc cece eceeee 14

Georgia v. Rachel,

384 U.S. 780 (1966) .....- ee eee eee eee: 16

Goldman v. Weinberger,

473 U.S. 503 (1986) «0... eee eee eee eeee 9, 10

Table of Authorities (continued)

Cases (continued):

Gregory v. Ashcroft,

501 U.S. 452 (1991) ........-.

Griffin v. Breckenridge,

eee

Griggs v. Duke Power Co.,

401 U.S. 424 (1971) ..........

Harper v. Virginia Bd. of Elections,

383 U.S. 663 (1966) ..........

Hunter v. Underwood,

US. MAM |... X00

Hutto v. Finney,

437 U.S. 678 (1978) ........-.

Jones v. Alfred H. Mayer Co.,

392 U.S. 409 (1968) ..........

Katzenbach v. McClung,

379 U.S. 294 (1964) ..........

Katzenbach v. Morgan,

WIUEOEOND ... ivivkiadiandizviw

Lane v. Wilson,

307 U.S. 268 (1939) ..........

Larson v. Valente,

456 U.S. 228 (1982) ..........

Table of Authorities (continued)

Page

Cases (continued):

Loving v. Virginia,

388 U.S. 1 (1967) 1... cere cece eeeeees 17

Madsen v. Women’s Health Ctr., Inc.,

S12 US. TSB (1GBS) ccc vccccccveccess 19

Maher v. Gagne,

448 U.S. 122 (1980)... cece cece eee: 17

Marbury v. Madison,

5 US. (1 Cr.) 137 (1803) ... 2... . ee ee eees 28

Massachusetts Bd. of Retirement v.

Murgia, 427 U.S. 307 (1976) ........-++-- 14

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316

(IBID) 2. cc ccccccccsccccenscevccces passim

Metropolitan Life Ins. Co. v. Ward,

470 U.S. 869 (1985)... 1. eee eee ee eee 13, 28

Mississippi Univ. for Women v. Hogan,

458 U.S. 718 (1962)... eee cee ee eee 28

Missouri v. Jenkins,

115 S. Ce. 2038 (1995) ....- cece ee eeeees 14

Monell v. New York City Dep’t of Social Servs.,

436 U.S. 658 (1978)... .- eee eee eee eee 14, 25

vii

Table of Authorities (continued)

Page

Cases (continued):

Munn v. Algee,

924 F.2d S6B (Sth Cir. 1991)... cccccccnes 9

N.A.A.C.P. v. Button,

FES VAP CRPOE) cccvreccnicevitdivds 1

New York v. United States,

FOO UE EO EEED oc ccivvodconvteldeaes 22

Niemotko v. Maryland,

PIP PGE) vr eweddcictidceelwnss 17

Olsen v. DEA,

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

Oregon v. Mitchell,

400 US. 112 (1970) ........... 6, 13, 16, 17, 25

Patsy v. Florida Bd. of Regents,

OF TR SO TD ch od ones su ce eres 25

Patterson v. McLean Credit Union,

GE UE SD EF ee Ri FE 14

Pennsylvania v. Union Gas,

oo Be ere Dee 30

Plaut v. Spendthrift Farm, Inc.,

eS ef. ee eer re 7

Prigg v. Pennsylvania,

4 USD. G6 Pat.) SIP (UGG)... ceccccccces 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 US. 160 (1976)... eee eee eee ees 15

Shelley v. Kraemer,

334 U.S. 1 (1948) 0... cece eee eee renee 29

South Carolina v. Baker,

485 U.S. 505 (1988)... eee eee eee eee 29

South Carolina v. Katzenbach,

383 U.S. 301 (1966)... .. ee eee eee eeee 6, 30

The Civil Rights Cases,

109 U.S. 3 (1883) .. 0... e eee cece: 7, 24, 26

The Slaughter-House Cases,

83 U.S. 36 (1873)... eee eee eee e eres 27

Toledo v. Nobel-Sysco, Inc.,

892 F.2d 1481 (10th Cir. 1989) ..........--. 9

United States v. Armstrong,

116 S. Ct. 1480 (1996) .........- eee eens 12

United States v. Darby,

312 U.S. 100 (1941) 2... eee eee eee eee 21

United States v. Lopez,

115 S. Ct. 1624 (1995) ....--- cece eens 22, 23

ix

Table of Authorities (continued)

Cases (continued):

United States v. Price,

Ses UI. FCT CIOOD cvcccvcewuses 17,

United States v. Rhodes,

27 F. Cas. 765 (CCD. Ky. 18967) .....-..-

United States v. United States Gypsum Co.,

Pe alee PR OMED 6 06h c ch beuideeannvas

Washington v. Davis,

oe es ae

West Virginia Bd. of Educ. v. Barnette,

Pa a ORO) 6 0 6 eas eS aecicaes

Yang v. Sturner,

780 F. Supp. 558 (D.R.I. 1990) ...........

CONSTITUTION AND STATUTES

Vie CO. OE 3 OE. hoes cen siais os oe

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

Age Discrimination in Employment Act,

ae UA Be OE, nc ect ecsccocess

Americans with Disabilities Act,

ee re as

Table of Authorities (continued)

Page

Constitution and Statutes (continued):

Pregnancy Discrimination Act,

GB UBL, § TCO 2 cv escccvvccssenss 14

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

Oe i 6 8 BONN a hae Co whe ENR ES ‘a

Pik tok & | +s Pe ePeerrrrrrrrce ce 12

TB CIB. 8 PD, 0 vv okie ces ow pnensncvervecs 8

GB USL. 6 FRR | na een bee oven cas tivenvees 13

R. I. Gen. Law § 42-80.1-3 (1993) ..... 22 eeees 11

OTHER AUTHORITIES

Akhil Reed Amar, The Bill of Rights and

the Fourteenth Amendment,

i 19

Richard L. Aynes, On Misreading John Bingham

and the Fourteenth Amendment,

Oe PO Ba Fe CAUSED oe 6 ons cere cnteses 24

Cong. Globe, 39th Cong.,

SOE Ss AOE SH ov cbs cbenssvevne 18, 23, 24, 26

2 #>4e of Authorities (continued)

Other Authorities (continued):

Ruth Bader Ginsburg, Some Thoughts on

Judicial Authority to Repair Unconsti-

tutional Legislation, 28 Clev. St. L. Rev.

ei Perr Pe rre rer erer errr ey Tre 12

Robert J. Kaczorowski, Revolutionary

Constitutionalism, 61 N.Y.U. L. Rev.

| ere rere errr er ye 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.

kt ere ee errr re Tore Pees Ee 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) .........: eae et 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

Come, 20 GO. (IGM) ccdswsss es sediius 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

Nn AER ile onan < Se,

Table of Authorities (continued)

Other Authorities (continued):

Bonnie I. Robin-Vergeer, Disposir= of the Red

Herrings: A Defense of the Religious Freedom

Restoration Act, 69 S. Cal. L. Rev.

DUE O RES sec e cece ve cececes 4

Michael P. Zuckert, Congressional Power under

the Fourteenth Amendment: The Original

Understanding of Section 5, 3 Const. Comm.

oe 24

xiii

Interest of Amicus Curiae

The NAACP Legal Defense and Educatiial Fund,

Inc. (LDF) was incorporated in 1939, for the pwose, inter

alia, of rendering legal aid, free of charge, ‘~ indigent

"Negroes suffering injustices by reason of race or color."

LDF has appeared in numerous cases before this (ourt. See

NAACP v. Button, 371 U.S. 415, 422 (1963) (desci*bing LDF

as a firm with a ‘ orporate 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 primary 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 "carry[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 US. 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).’

‘Compare 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, ie. 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, ¢.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

cian ——~ - raceme:

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 OF

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.¢.,

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 US. 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

US. 693, 708 (1986) (Burger, CJ., 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 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.’

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.

*See City of 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

rtaate te. WAP Ke than SPO

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.‘

suggests that with such a shift in burden, Congress has "turn{ed] 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); Plaut 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 of . . . prohibited state laws"). That strand of the legislature’s

remedial power is not implicated in this case.

‘See 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 <‘usive) “generality” vel non of the law

imposing the burden -- should “sot 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

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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 -- ie., 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.”

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

(Black Muslim); Yang v. Sturner, 780 F. Supp. 558 (D.R.1. 1990)

(Hmong); Munn v. Algee, 924 F.2d 568 (Sth Cir. 1991) (African

American Jehovah’s Witness); OSHA Notice CPL 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 (ED. La. 1981)

(Rastafarian). See generally Bonnie I. Robin-Vergeer, Disposing of the

Red Herrings: A Defense of the Religious Freedom Restoration Act, 69

S. CAL. L. REV. 589, 749 & 0.659 (1996) (gathering congressional

testimony).

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. Aguillard, 482 U.S. 578, 637 (1987) (Scalia, J.,

dissenting). See also Board of Educ. of 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").°

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

*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 cf. 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

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Kiryas Joel, 114 S. Ct. at 2497 (O’Connor, J., concurring),’

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) ("{[D]iscrimination 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

™(T}he 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 ? *:ughts on Judicial Authority

to Repair Unconstitutional Legislation, 28 CLEV. ST. L. REV.

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 (ie., 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, eg, 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 necessary 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

= Meee.

13

ee

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 Clebume (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, 427 U.S. 160 (1976), or 42 USS.C.

15

iia aeecill

§ 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).*

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

*In 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, THE NEGRO AND THE FIRST 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 modern 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. RICHARDS, 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, eg., 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.’

Indeed, the connection, as a matter of history,

between concern for black freedom and for religious free

exercise may have been closest of all."° Religion had

*Although Petitioner does not suggest that the Court overrule

Cantwell 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 did intend the Fourteenth Amendment to secure the

Bill of Rights against the States. See generally CURTIS; see also Akhil

Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101

YALE L. J. 1193, 1235 (1992).

‘lt has been argued, see Amicus 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

incorporation 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., Madsen v.

Women’s Health Ctr. Inc., 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, The Second Adoption of the Free Exercise Clause:

Religious Exemptions Under the Fourteenth Amendment, 88 Nw. ULL.

REV. 1106, 1196 (1994). See 44 Liquormart, Inc. v. Rhode Island, 116

S. Ct. 1495, 1515 (Scalia, J., concurring) (relevant inquiry is

understanding of Framers of the Fourteenth 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 siavery 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 Nortixerners 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

. » . pass[ing] 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, see Morgan,

383 U.S. at 654 n.10, a law “enforcing” the Free Exercise Clause

encounters no similar First Amendment problem.

20

ee .

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 “lurk{]," 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."

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 modern civil rights law, as well, see infra.

In fine, Petitioner (implicitly) and Amicus (explicitly)

ask this Court for more intensive judicial scrutiny of the

“The characterization of Morgan 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 McCulloch v. Maryland acknowledges a

“substantive” power to charter corporations or United States v. Darby,

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 "appropriate[ness]" 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).

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., Ist 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

“Although 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.,

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

state common-law causes of action preempted); United States v. Lopez

(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. See generally Richard E.

Levy, An Unwelcome Stranger: Congressional Individual Rights Power

and Federalism, 44 KAN. L. REV. 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).

‘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)), ie., 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

solely in the hands of future legislative majorities (which, presumably,

would eventually include unreconstructed Southern Democrats), see,

e.g., Cong. Globe, 39th Cong., Ist Sess. 1095 (1866) (Rep. Hotchkiss),

the suggestion that the Amendment’s final form marked a retreat for

congressional power has been contradicted by modern scholarship, see

Michael P. Zuckert, Congressional Power under the Fourteenth

Amendment: The Original Understanding of Section 5, 3 CONST.

CoMM. 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, On Misreading John Bingham and the Fourteenth

Amendment, 103 YALE L. J. 57 (1993)

As for the main thrust of the Clarendon Foundation Brief,

depicting the Morgan power as the equivalent of the straw man

attacked by Representative Bingham’s opponents, ie. congressional

license to enact a “code of municipal laws for the regulation of

private rights,” Br. at 16 (quoting Civil Rights Cases, 109 U.S. at 11),

neither the statute upheld in Morgan 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 enacting

id

‘Aten nis eit

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 of 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 national landmark \aw (rather than a law protecting religious

freedom), then 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

"proscribe[] . . . 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 Morgan, but with the dissenter as well, see Oregon v.

Mitchell, 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. Giobe, 39th Cong., Ist Sess. 475 (1866) (Sen.

Trumbull) (1866 Act); accord Civil Rights Cases, 109 US. 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 Southem

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,” 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 modern 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); Griffin 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, see Revolutionary

Constitutionalism at 910-11.

27

Rome, 446 U.S. at 207 n.1 (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 theory 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 ROBERT 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. JONES

DIRECTOR-COUNSEL

THEODORE M. SHAW

NORMAN J. CHACHKIN*

DAVID T. GOLDBERG

NAACP LEGAL DEFENSE AND

EDUCATIONAL FUND, INC.

99 Hudson Street

Suite 1600

New York, New York 10013

(212) 219-1900

*Counsel of Record