Amicus Curiae Brief — City of Boerne v. Flores

upreme UOUrT, U.

” ; - D

ON he Ge SF

~'/}\ JAN 10 1997

No. 95-2074

aS as |

In THE

Supreme Court of the United States

OCTOBER TERM, 1996

CITY OF BOERNE, TEXAS,

. Petitioner,

P.F. FLORES, ARCHBISHOP OF SAN ANTONIO,

ee Respondent,

UNITED STATES OF AMERICA,

Intervenor-Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF OF U.S. SENATORS ORRIN G. HATCH,

STROM THURMOND, CHARLES E. GRASSLEY,

ALFONSE M. D'AMATO, ROBERT F. BENNETT,

JAMES M. INHOFE, AND RICK SANTORUM, AND

REPRESENTATIVES JAMES V. HANSEN AND

CHRISTOPHER CANNON

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

CARTER G. PHILLIPS

GENE C. SCHAERR *

MICHAEL J. RAPHAEL

CHRISTOPHER D. MOORE

SIDLEY & AUSTIN

1722 Eye Street, N.W.

Washington, D.C. 20006

(202) 736-8000

January 10, 1997 * Counsel of Record

WILSON - EPes PRINTING Co., INC. - 789-9096 - WASHINGTON, D.C. 20001

~IBEST AVAI

QUESTION PP! SENTED

Whether the Religious Fre*«m Restoration Act, 42

U.S.C. § 2000bb ef seq., to tse extent it applies to the

States, is a constitutional exercise of Congress’ power

un“ 27 the Fourteenth Amendmest.

(i)

<- eT

tee

et

TABLE OF CONTENTS

Page

QUESTION PRESENTED 2.000..2...........ccsccccececcceececceseeeeee: i

py TP Pi Nivy 0) iy yt - iv

INTEREST OF AMICI CURIAE |...000.0.0..0..0.00000.cccccece--0- 1

SUMMARY OF ARGUMENT ...000 oe 1

a a 4

I. THE RELIGIOUS FREEDOM RESTORATION

ACT DOES NOT VIOLATE THE CONSTITU-

TIONAL SEPARATION OF POWERS... 5

Il. RFRA IS AN APPROPRIATE EXERCISE

OF THE NARROW LAWMAKING POWER

GIVEN TO CONGRESS BY SECTION 5 OF

THE FOURTEENTH AMENDMENT ............. e 7

A. Although It Imposes Significant Limitations,

Section 5 Gives Congress The Authority, Not

Only To Compel States To Respect Legiti-

mate Fourteenth Amendment Rights, But

Also To Strengthen And Fortify Those

Rights Under A Traditional Prrascncariag

ness” Test .. EE el Ae Ie eee <a e s

B. Section 5 Does Not Authorize Congress To

Attempt To Protect Rights Not Plainly En-

compassed Within The Fourteenth Amend-

ment; Adopt Remedies With An Insufficient

Nexus To A Right Legitimately Protected By

That Amendment; Regulate Purely Private

Conduct; Trench Upon State Prerogatives

Absent A Clearly Expressed Intent; Or Vio-

late Other Provisions Of The Constitution... 20

C. RFRA Falls Within Congress’ Narrow Sec-

tion 5 Power, Without Transgressing Its

ae SST SER Foal a ae 24

I ic sada mesetensies eemuitsakatp ei a a 30

iv

TABLE OF AUTHORITIES

CASES Page

Adarand Constructors, Inc. v. Pena, 115 S. Ct.

Se SE ainsiadsendetincitn ds naib aieecievidebiinicen’ 24

Bowen V. Roy, 476 U.S. 693 (1986) ..................-.-.... 29

Cantwell v. Connecticut, 310 U.S. 296 (1940)........ 25

Church of Lukumi Babalu Aye v. Hialeah, 508

Sy hi 28, 29

City of Richmond v. J.A. Croson Co., 488 U.S. 469

ft ERR Ue nce se a Be SA TN De DAS ae 15, 22

City of Rome v. United States, 446 U.S. 156 '

RAEN ee Res ey ee ae ae ee 3, 18, 19 ;

Civil Rights Cases, 109 U.S. 3 (1888) ...........-........ 23

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

Dellmuth v. Muth, 491 U.S. 223 (1989) .................. 23 i

District of Columbia v. Carter, 409 U.S. 418 f

SRR Ra epee CLE Sap SISOS SAS CA te 23

FDIC v. Meyer, 510 U.S. 471 (1994) ....................-. 8

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) ............ 18 |

Gillette v. United States, 401 U.S. 437 (1971)........ 29

Gregory Vv. Ashcroft, 501 U.S. 452 (1991) ............... 15, 23

Hodel v. Virginia Surface Mining & Reclamation |

pr, Se Gtk EG: Sen eee 13

James V. Bowman, 190 U.S. 127 (1903) ~............... 23 '

Katzenbach v. Morgan, 384 U.S. 641 (1966) —........ 1, 2, 19

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

(8, RS A LS ati Bs, Ce tet Sb MEE passim

McDermott Int’l, Inc. v. Wilander, 498 U.S. 337

(2 RATER SET Ree EAs Sih ER 9

Metro Broadcasting, Inc. v. FCC, 497 U.S. 547

§ BRR EAR RELIES NE tee le SE 23

Mississippi Univ. for Women Vv. Hogan, 458 U.S.

Pi ROT MERI RRA Sh eee te 2 lea 24

Molzof v. United States, 502 U.S. 301 (1992)........ 2,9

National Prohibition Cases, 253 U.S. 350 (1920).. 18

New York v. Commissioners, 67 U.S. 620 (1862)... 13

Oregon V. Mitchell, 400 U.S. 112 (1971) --.............. 18, 30

Pennhurst State Sch. & Hosp. v. Halderman, 451

Sls BSED sciteattttiapictntacmeianetneldacetanites 23

Planned Parenthood v. Casey, 510 U.S. 1309

I IIIT ic sctcesedocasassnsichelitbbhckashacrsse de dibipnedaematiaainnltonmai tied manta 21

RTO OORT EE TE MO EN Sw

v

TABLE OF AUTHORITIES—Continued

Page

Plaut v. Spendthrift Farm, Inc., 115 S. Ct. 1447

>: | ee PR ee OES MR A Mg ane 2,6

Robertson v. Seattle Audubon Soc’y, 503 U.S. 429

ET A OS SET ad TR Ne PE ERE 6

Roe Vv. Wade, 410 U.S. 118 (1978) ........................... 20

Slaughter-House Cases, 83 U.S. (16 Wall.) 36

5 | SREP CURED SETLIST RARE A SNOT SEAM SL ARTES 25

South Carolina v. Katzenbach, 383 U.S. 301

PR sidachvicnssninsscsinulacedubasidbinpigimacnalcaiiaediiiacadéddiseiaeamcetaeian passim

United Bhd. of Carpenters v. Scott, 463 U.S. 825

| EL, AOE OR ORCI Ee OCI Nd Tape ee STN 23

United States v. Darby, 312 U.S. 100 (1941) -....... 22

United States v. Guest, 383 U.S. 745 (1966) —....... 23

United States v. Klein, 80 U.S. (13 Wall.) 128

RRIF en ee RD» A A 6

United States v. O’Brien, 391 U.S. 367 (1968) ........ 22

Ex Parte Virginia, 100 U.S. 339 (1879) _....... 3, 17, 18, 21

Williamson v. Lee Optical, Inc., 348 U.S. 483

CIE nckoodnchanclicntiussigunacaiannitisnthbalitliatdaintbvcteteence 13

CONSTITUTION, STATUTES AND

LEGISLATIVE HISTORY

ae Se A | a Sener ee eee 11

a a I cacci i sininssinicsinpiclesestieendbnomsiniietiess 9

is Se Be a | See SS Ieee oe Chae 9

ei es BE Wa EB iiss lasgicinsdoroninaiin vs saesddnaiiosiinies 7, 25

oie Ms MII, TRE Vo OW wecsssictincsinintivncsscnassccncnionte 2.7

OO ee I ah ccischelic side haientidiiailelitcntiei ens cate 6

PR SES SR REE Rum ee ESE ee oe eae eS 6

Religious Freedom Restoration Act, 42 U.S.C.

FF ARE Ie a rams LET em oe at 4, 24

Religious Freedom Restoration Act of 1991: Hear-

ings Before the Subcommittee on Civil and Con-

stitutional Rights, of the Committee on the Judi-

ciary, House of Representatives, 102d Cong., 2d

Sess. 105 (1992) (Statement of Nadine Strossen,

Pres. of National Board of Directors, ACLU).... 28

Pub. L. No. 103-141, 107 Stat. 1488 (1993) .......... 24

H.R. Rep. No. 108-88 (1908) .............000.0--.ccce00-e00000-- 2, 28, 29

vi

TABLE OF AUTHORITIES—Continued

en

Page

S. Rep. No. 108-111 (1993), reprinted in 1993

DAG Ricdiks TD eictrcecnrintivcnivenscicnaaatinaiglaedatoa ..... passim

SS COR TRGB CD ectonncicceccnetinichccninitiintinid 26

139 Cong. Rec. H2357-58 (daily ed. May 11,

DODD ancorsisritiitiacsitibautieiintiadihdtinbdgana duibabiibeemninbeas 5

Cong. Globe, 39th Cong., Ist Sess. (1866) _..... 14, 15, 22, 26

Cong. Globe, 41st Cong., 2d Sess. (1870) .................... 16

Cong. Globe, 42d Cong., Ist Sess. (1871).................... 15, 26

OTHER AUTHORITIES

Amar, The Bill of Rights and the Fourteenth

Amendment, 101 Yale L.J. 1193 (1992) —.............. 25

Black, Structure and Relationship in Constitu-

SEneE Ge TIS . vicentticstdbtatceeidatartsiaatlintpten 11

Curtis, No State Shall Abridge (1986) -................... 15, 26

The Federalist No. 33 at 201-03 (Hamilton)

CHa OG TET ocitncliettcuctesdiceeitdacinicnanmaies 9

No. 44, at 283-86 (Madison) .........................-....-- 9

No. 81, at 484 (Hamilton) ........................---....00:+ 7

Gunther, John Marshall’s Defense of McCulloch

©. SEP CREE Kedcnceectadansiteteetieeniacn 12, 13

James, The Framing of the Fourteenth Amend-

UNE CD ccsictcexnstinticcntncnthelictietiniigs Danaea 26

Johnson, A Dictionary of the English Language

CEDG: C6, BEG ccntsimibiiaiinbsaaa 8

Kendrick, The Journal of the Joint Committee of

Fifteen on Reconstruction (1969) ....................... 14, 15

Lash, The Second Adoption of the Free Exer-

cise Clause: Religious Exemptions Under the

Fourteenth Amendment, 88 Nw. U. L. Rev.

TIO CODD . icsccccitatises titted eeeeies 26

Lawson & Granger, The “Proper” Scope of Fed-

eral Power: A Jurisdictional Interpretation of

the Sweeping Clause, 43 Duke L. J. 267 (19938).. 18 |

Niles Weekly Register, March 13, 1819, at 41-44,

reprinted in Great Lives Observed: John Mar-

shall 104-07 (Kutler ed., 1972) ............0000....-..eeeeeee 18

vii

TABLE OF AUTHORITIES—Continued

An Old Whig, No. 2 (1787), in 3 The Complete

Anti-Federalist (Storing ed., 1981), reprinted

in 3 The Founder’s Constitution 239 (Kurland

gE ES ailing eg Sees Te

8 The Papers of Alexander Hamilton 97-106

(Syrett et al. eds., 1979), reprinted in 3 The

Founder’s Constitution 247-50 (Kurland &

I eM atkins encendiicbencilcitabeeiinleniactees

19 The Papers of Thomas Jefferson 270-80 (Boyd

et al. eds., 1950), reprinted in 3 The Founder’s

Constitution 245-47 (Kurland & Lerner eds.,

a OTT See SOME

1 Story, Commentaries on the Constitution

§ 482 (1888) ............ PED EMO AL TT IRE Niien Oks Mesh

Webster, An American Dictionary of the English

pL Bt | SRT ee eee ene eae eT

Page

10

13

INTEREST OF AMICI CURIAE

Amici are United States Senators and Representatives

who seek to preserve and protect both of the fundamental

constitutional and political values at issue in this case:

religious freedom and federalism. Some of these amici

were sponsors of the Religious Freedom Restoration Act.

That Act was expressly designed to “enforce” the Free

Exercise Clause of the First Amendment (as incorporated

by the Fourteenth) by creating a limited, statutory pro-

tection for religious freedom. That statute is within

Congress’ power under the plain meaning of Section 5

of the Fourteenth Amendment, and therefore does not

depend for its validity upon the sweeping (and incorrect)

view of congressional authority suggested by portions of

the majority opinion in Katzenbach v. Morgan, 384 US.

641 (1966).

The purposes of this brief are to explain why the Act

does not transgress the constitutional separation of pow-

ers; why the enactment of RFRA is within Congress’

authority under an appropriately narrow reading of Sec-

tion 5; and why the Court should reject the broader

theories of congressional power that some might invoke

in an effort to sustain the Act.’

SUMMARY OF ARGUMENT

The court of appeals correctly held that the Religious

Freedom Restoration Act (“RFRA” or “the Act”) is a

proper and facially valid exercise of Congress’ legislative

power. First, contrary to petitioner’s mischaracterization,

the statute does not run afoul of the constitutional sepa-

ration of powers by dictating the standard courts must

apply in determining whether government action violates

the Free Exercise Clause. Both the Senate and the House

reports on RFRA make clear that Congress was merely

1 Pursuant to Rule 37 of this Court’s Rules, the parties have con-

sented to the filing of this brief in letters that have been filed with

the Clerk.

2

“creat[ing] a new statutory prohibition,” and that the

Act “does not purport to set the standard of review to be

applied by the . . . courts in cases brought under [any]

constitutional provision.” S. Rep. No. 103-111, at 14

n.43 (1993) (hereinafter “S. Rep.”), reprinted in 1993

U.S.C.C.A.N. 1892; see also H.R. Rep. No. 103-88, at

6-7 (1993) (hereinafter “H.R. Rep.”). RFRA also does

not transgress any of the limitations on Congress’ power

articulated by this Court in Plaut v. Spendthrift Farm,

Inc., 115 S. Ct. 1447 (1995).

Second, the Act is a valid exercise of Congress’ power,

under Section 5 of the Fourteenth Amendment, to “en-

force” the “provisions” of that Amendment through

“appropriate legislation.” U.S. Const. amend. XIV, § 5.

To be sure, petitioner and its amici are correct that this

power is limited, and cannot properly be construed as

broadly as suggested in the alternative holding in Katzen-

bach v. Morgan. However, that power also is not so

narrow as to be essentially redundant of the judiciary’s

own (implied) power to enforce the Fourteenth Amend-

ment, i.e., a mechanism by which to apply the Amend-

ment’s prohibitions in individual cases. In 1866, the word

“enforce,” particularly when applied to actions of the

legislative branch, meant to “strengthen” or “fortify,” not

only to “effectuate” or “carry out.”

The key to understanding the scope of Congress’ power

under Section 5 is to recognize that the word “appro-

priate,” as applied to legislation, was a well-established

term of art in 1866. See, e.g., Molzof v. United States,

502 U.S. 301 (1992) (term of art to be construed in

accord with its established meaning). As defined by

Chief Justice Marshall in McCulloch v. Maryland, 17

U.S. 316 (1819), an “appropriate” legislative means is

one which is “plainly adapted” to further a legitimate end

that is “within the scope of the Constitution”; which

“directly and necessarily tends” to produce that result;

and which is not otherwise “prohibited” by the Constitu-

3

tion. Id. at 421; accord Ex Parte Virginia, 100 U.S. 339

(1879) (similar definition).

RFRA satisfies these requirements. Contrary to peti-

tioner’s argument, RFRA is not “prohibited” by the

Establishment Clause, for reasons explained at length in

briefs filed by the respondents. And the end RFRA seeks

to promote—protecting the right to free exercise of reli-

gion—is obviously “within the Constitution.” That right

is expressly enshrined in the First Amendment, which has

been applied to the States through the Fourteenth Amend-

ment (in accordance with the understanding of those

who framed the Fourteenth Amendment). Accordingly,

RFRA does not depend for its validity upon Morgan's

incorrect suggestion that Congress has discretion, not

only to select the means to be used in enforcing a require-

ment imposed by the Fourteenth Amendment, but also to

determine for itself what requirements that Amendment

imposes. To recognize such a sweeping power would be

to give Congress the power, in essence, to amend the

Constitution without going through the process specified

in Article V.

Further, the means chosen in RFRA for enforcing the

Free Exercise Clause are “appropriate” within the mean-

ing of Section 5, assuming (as we do) that this Court

correctly identified the outer bounds of that Clause in

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

be sure, RFRA goes beyond what the Free Exercise

Clause requires of its own force (as interpreted in Smith).

But RFRA is no different in that regard than the statutes

at issue in such decisions as Ex Parte Virginia, 100 US.

339 (1879); City of Rome v. United States, 446 U.S.

156 (1980); and South Carolina v. Katzenbach, 383 U.S.

301 (1966), all of which were upheld by this Court

even though they went somewhat beyond the minimum

that (arguably) would have been necessary to compel

compliance with the relevant constitutional prohibitions.

Again, on this crucial issue, the test is not whether RFRA

4

is indispensably necessary to the achievement of its goal,

but whether the statute is “plainly adapted” to protecting

the constitutional right to free exercise of religion, and

“directly tends” to produce that result.

RFRA amply satisfies this requirement. Smith itself

recognized that the Free Exercise Clause prohibits the

eniorcement of State laws that, surreptitiously or other-

wise, “punish the expression of religious doctrines [the

government] believes to be false, . . . impose special dis-

abilities on the basis of religious views or religious status,”

or that regulate or ban “physical acts or abstentions .. .

only because of the religious belief that they display.”

494 U.S. at 877. By potentially requiring governments

to justify, under a “compelling interest” test, the applica-

tion of any challenged law that imposes a substantial bur-

den on religious exercise, RFRA directly and substantially

deters governments from violating these prohibitions.

This Court’s decisions upholding statutes in other con-

texts, moreover, demonstrate that this test is an espe-

cially effective and proven device for remedying gov-

ernment action that surreptitiously violates such prohibi-

tions through seemingly “neutral” laws. In short, RFRA

is a facially valid exercise of Congress’ Section 5 power.

ARGUMENT

The Religious Freedom Restoration Act is based upon

one of the core values underlying the Bill of Rights,

namely that “the right to observe one’s faith, free from

Government interference, is among the most treasured

birthrights of every American.” S. Rep. at 4. Indeed,

Congress enacted RFRA as a means of enforcing the

express constitutional guarantee of free exercise of re-

ligion. Id. at 14 n.43. To accomplish that end, Con-

gress designed RFRA as a ‘statutory prohibition on gov-

ernmental action that substantially burdens the free

exercise of religion” (id.) unless that action is the least !

restrictive means of furthering a compelling government |

interest. 42 U.S.C. § 2000bb-1(b). As we now demon- |

ica

5

strate, RFRA does not violate the separation of powers,

and otherwise falls comfortably within Congress’ authority

under Section 5 of the Fourteenth Amendment.

I. THE RELIGIOUS FREEDOM RESTORATION ACT

DOES NOT VIOLATE THE CONSTITUTIONAL

SEPARATION OF POWERS.

The rhetorical core of petitioner’s argument is that

it was the Smith decision that prompted Congress to

pass RFRA, and that certain legislators (as well as the

President) loosely—and incorrectly—described the statute

as “overturning” or “reversing” that decision. But these

facts do not make RFRA unusual, or in any way estab-

lish a violation of the separation of powers doctrine.

Congress often enacts legislation in response to deci-

sions of this Court interpreting the Constitution, and

sometimes in ways that are characterized as “overturning”

those decisions. Yet RFRA is not an attempt to re-

interpret the Free Exercise Clause of the Constitution any

more than these other statutes represent reinterpretations

of the Constitution. This was clearly recognized by Rep.

Henry Hyde, a sponsor of the Act who at one point char-

acterized the statute as “overturning” Smith, but then

clarified that comment as follows:

Of course, the label restoration is inappropriate in

this context since the Congress writes laws—it does

not and cannot overrule the Supreme Court’s inter-

pretation of the Constitution. We are unable to re-

store a prior interpretation of the first amendment.

139 Cong. Rec. H2357-58 (daily ed. May 11, 1993).

And any suggestion that Congress was attempting to sup-

plant this Court as the arbiter of constitutional interpre-

tation is unambiguously refuted by the Senate report,

which states:

While the act is intended to enforce the right guaran-

teed by the free exercise clause of the first amend-

ment, it does not purport to legislate the standard

6

of review to be applied by the . . . courts in cases

brought under that constitutional provision. Instead,

it creates a new statutory prohibition... .”

S. Rep. at 14 n.43.°

The Act also does not transgress any of the relevant

limitations on Congress’ Article | power articulated in

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

or elsewhere. First, while Plaut made clear that Congress

cannot pass statutes that prescribe the “‘rules of deci-

sion’” in pending cases, id at 1452 (quoting United

States Vv. Klein, 80 U.S. (13 Wall.) 128 (1872) ), the opin-

ion also observed that Congress is permitted to “ ‘amend[]

applicable law,’” id. at 1452-53 (quoting Robertson v.

Seattle Audubon Soc’y, 503 U.S. 429, 441 (1992)).

That is all RFRA does. It does not prescribe the holding

for any case pending before the courts. It does not com-

pel particular findings of facts or specific results under

preexisting law. See Robertson, 503 U.S. at 441. It also

does not force the courts to decide future cases using a

congressional interpretation of the First Amendment.

RFRA simply makes new statutory law designed to en-

force the Free Exercise Clause.

Second, Plaut also makes clear that Congress cannot

reopen final decisions of Article III courts. 115 S. Ct. at

1453, 1454 n.4. RFRA does not attempt to change the

result reached by this Court in the particular dispute at

issue in Smith. Nor does RFRA direct the lower courts to

reopen final decisions based on that decision. If Congress

had done such a thing, it undoubtedly would have been

unconstitutional: “A legislature, without exceeding its

2It is also of no moment that the Act depends for its appli-

cation on a burden on the “exercise of religion under the First

Amendment to the Constitution.” Cf. Pet. Br. at 20. Many statu-

tory rights are triggered by a burden upon or violation of a con-

stitutional right. E.g., 42 U.S.C. §§ 1981, 1983. But no court

decision of which we are aware has ever held that such a statute

is unconstitutional for that reason.

i aaa ealaallaelial

7

province, cannot reverse a determination once made in a

particular case.” The Federalist No. 81, at 484 (Hamil-

ton) (Rossiter ed., 1961). Nevertheless, the legislature

“may prescribe a new [statutory] rule for future cases.”

Id. Once again, that is all Congress has done here.

II. RFRA IS AN APPROPRIATE EXERCISE OF THE

NARROW LAWMAKING POWER GIVEN TO CON-

GRESS BY SECTION 5 OF THE FOURTEENTH

AMENDMENT.

Having shown that RFRA does not contravene the

constitutional separation of powers, we now demonstrate

that the statute is within Congress’ power under Section

5 of the Fourteenth Amendment. That section provides

that Congress “shall have power to enforce, by appro-

priate legislation,” the Amendment’s provisions. U.S.

Const. amend, XIV, § 5. Section 1, in turn, forbids the

States to “abridge the privileges or immunities of citizens

of the United States,” to “deprive any person of life,

liberty, or property without due process of law,” or

to “deny to any person within its jurisdiction the equal

protection of the laws.” Id., § 1. The fundamental

questions raised by this aspect of the case are (1)

whether, as petitioner and certain of its amici appear to

contend, this power to “enforce” the Privileges or Im-

munities, Due Process, and Equal Protection Clauses of

the Fourteenth Amendment is limited to that which is

indispensably necessary to compel compliance with those

guarantees and, if not. (2) what are the limits to this

enforcement power? Once these two questions are an-

swered, the specific issue here—whether RFRA falls

within the Section 5 power—is easily resolved in RFRA’s

favor.

8

A. Although It Imposes Significant Limitations, Sec-

tion 5 Gives Congress The Authority, Not Only To

Compel States To Respect Legitimate Fourteenth

Amendment Rights, But Also To Strengthen And

Fortify Those Rights Under A Traditional “Ap-

propriateness” Test.

We agree with petitioner and some of its amici that the

power given to Congress under Section 5 includes sig-

nificant limitations. See infra pp. 20-24. However, that

power is not so narrow as to duplicate essentially the ju-

diciary’s implicit power to enforce the Fourteenth Amend-

ment by applying its prohibitions in particular cases.

Thus, Section 5 undoubtedly gives Congress authority to

go beyond that which is minimally necessary to compel

the States to comply with the requirements of Section 1,

whether or not there has been an antecedent violation of

those requirements. Cf. Pet. Br. at 26-27; Ohio, ef al.,

Amicus Br. at 12-14.

1. This is confirmed by three separate features of the

constitutional language. First, like Section 2 of the Thirt-

eenth Amendment, Section 5 uses the term “enforce,”

which is broader than alternatives the drafters could have

chosen, such as “execute” or “compel compliance with.”

At the time Section 5 was drafted, the dictionary definition

of “enforce” included not only “execute” and “put in

force,” but also “strengthen.” Webster, An American

Dictionary of the English Language 447 (1866); accord

Johnson, A Dictionary of the English Language (12th ed.

1812) (defining enforce as, inter alia, “[t]o give strength

to; to strengthen; to invigorate”). There is no indication

that the Framers of the Fourteenth Amendment intended

to limit or depart from this then-common understanding

of the term “enforce.” See, e.g., FDIC v. Meyer, 510

U.S. 471, 476 (1994) (“we construe a statutory term in

accordance with its ordinary or natural meaning”).

Second, this power to “enforce” is granted specifically

to Congress, not to the judicial branch, the executive

branch, or even some combination of the three branches.

9

Obviously, Congress’ business is to draft and adopt legisl-

lation, not to decide “cases or controversies” (U.S. Const.

art. III, § 2) or to “execute” the laws (U.S. Const. art.

Il, § 3), functions textually committed to the two other

coequal branches of government. Accordingly, Congress

could hardly be expected to “enforce” a law in the rela-

tively narrow way that the Attorney General would en-

force it in exercising her prosecutorial power, much less

in the even narrower way that a court would be expected

to enforce the requirements of the Amendment in a par-

ticular case.

Third, Congress was given power to enforce the Amend-

ment through “appropriate legislation.” While this phrase

may sound imprecise to modern ears, in 1866 it was a

term of art, one that would have evoked the early debates

over the scope of Congress’ implied powers (and Article I’s

Necessary and Proper Clause) and Chief Justice Mar-

shall’s resolution of that issue in McCulloch. Because

“appropriate” was a term of art in 1866, it should be

interpreted as it would have been understood at that time.

See, e.g., Molzof v. United States, 502 U.S. 301 (1992)

(citing other cases); McDermott Int'l, Inc. v. Wilander,

498 U.S. 337 (1991) (same).

As a term of art, the phase “appropriate legislation”

had its genesis in the debate over Congress’ implied pow-

ers, which began almost as soon as the Constitution was

drafted and submitted to the States for ratification. E.g.,

An Old Whig, No. 2 (1787), in 3 The Complete Anti-

Federalist (Storing ed., 1981), reprinted in 3 The Found-

er’s Constitution 239 (Kurland & Lerner eds., 1987); The

Federalist No. 33, at 201-03 (Hamilton) (Rossiter ed.,

1961); id. No. 44, at 283-86 (Madison). That debate

became acute during the 1790-91 dispute between Thomas

Jefferson, who was then Secretary of State, and Alex-

ander Hamilton, the Secretary of the Treasury, over the

constitutionality of legislation creating the first Bank of

the United States. Jefferson argued that Congress pos-

sesses only those implied powers without which the gov-

10

ernment would be unable to carry out a particular func-

tion. 19 The Papers of Thomas Jefferson 270-80 (Boyd

ef al. eds., 1950), reprinted in 3 The Founder's Constitu-

tion 245-47. Hamilton, on the other hand, contended that

Congress, in seeking to carry out its enumerated powers,

possessed the implied power to use any means that “has a

natural relation to any of the acknowledged objects or

lawful ends of the government.” 8 The Papers of Alex-

ander Hamilton 97-106 (Syrett et al. eds., 1979), re-

printed in 3 The Founder's Constitution 247-50. Thus,

at its core, the debate turned on whether Congress had

authority to adopt means that were “needful, incidental,

useful, or conducive to” an express power, or only those

means that were “absolutely or indispensably necessary”

to the exercise of those powers. Id.

In McCulloch, this Court unanimously upheld Con-

gress’ power to charter a second Bank of the United

States and, in so doing, rejected Jefferson’s position on

Congress’ implied powers. The narrow issue was whether

Congress had the implied power to create a corporation

to carry out the Nation’s business, inasmuch as the power

to create corporations was not expressly granted by the

Constitution. As framed by Chief Justice Marshall, the

resolution of this issue depended upon whether, as the

State of Maryland argued (echoing Jefferson), Congress

had implied authority to do only that which was “indis-

pensably necessary” to carry out one of its express pow-

ers, or whether, as Marshall put it, Congress had the

power to choose an “appropriate means” (17 U.S. at 408,

410) to accomplish its goal, whether or not the chosen

means was “indispensable” to the achievement of that

goal.

To answer this question, Marshall reasoned that “[i]t

must have been the intention of those who gave these

[express] powers, to insure, as far as human prudence

could insure, their beneficial execution.” Id. at 415.

“This could not be done,” he opined, “by confining the

choice of means to such narrow limits as not to leave it

i

11

in the power of Congress to adopt any which might be

appropriate, and which were conducive to the end.” Id.

Marshall further reasoned that, in practice, Jefferson's

position would create separation-of-powers problems:

“(Where the law 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 depart-

ment, and to tread on legislative ground.” Id. at 423.

Based upon this reasoning, Marshall resolved the under-

lying issue in the following famous passage: “Let the end

be legitimate, let it be within the scope of the constitution,

and all means which are appropriate, which are plainly

adapted to that end, which are not prohibited, but con-

sistent with the letter and spirit of the constitution, are

constitutional.” Id. at 421. The Court also held that the

Necessary and Proper Clause (U.S. Const. art. I, § 8,

cl. 18) could not be construed as a further restriction on

Congress’ implied powers and, therefore, effectively held

that the legitimacy of legislation under that Clause was

subject to the same “appropriateness” test. Id. at 420-21.”

Though the opinion went out of its way to emphasize

that Congress’ implied power is subject to strict limits,*

McCulloch ignited a firestorm of protest. This was espe-

cially true in Marshall’s home state, Virginia, where his

statements regarding Congress’ power to enact “appro-

priate” legislation quickly became a lightning rod. The

Richmond Enquirer, “the preeminent keeper of the states’

3 As Professor Black has pointed out, “Marshall does not place

principal reliance on [the Necessary and Proper Clause] as a

ground of decision; . . . he addresses himself to the necessary and

proper clause only in response to counsel’s arguing its restrictive

force .:..” Black, Structure and Relationship in Constitutional

Law 14 (1969).

4 For example Marshall warned that the Court would hold an act

unconstitutional if Congress, “under the pretext of executing its

powers, pass laws for the accomplishment of objects, not intrusted

to the government.” McCulloch, 17 U.S. at 423.

12

rights flame,” began publishing a series of attacks on the

decision within a month of its issuance. Gunther, John

Marshall's Defense of McCulloch v. Maryland | (1969)

(hereinafter “Marshall's Defense’). Some of those attacks

were written by a man calling himself Amphictyon and

believed to be a Virginia state judge, William Brocken-

brough. He argued that under Marshall’s view of what

constituted “appropriate” legislation, “there is no limi-

tation whatever” to congressional authority, which, he

claimed, could well be used to prevent the States from

doing such things as imposing land taxes. Id. at 66-67.

Spencer Roane, a judge of the Virginia Supreme Court

of Appeals, made similar arguments in a subsequent

series of letters published in the same paper, under the

name Hampden. Like Brockenbrough, Roane specifically

criticized McCulloch's authorization of “appropriate” leg-

islation. Id. at 128, 135.

In a series of essays responding to Brockenbrough and

Roane, Marshall defended McCulloch against the charge

(among others) that the authority to pass “appropriate”

legislation gave Congress unlimited power. For example,

responding to the hypothetical posed by Judge Brocken-

brough, he flatly denied “that a law prohibiting the state

legislatures from imposing a land tax would be an ‘appro-

priate’ means . . . to be employed in collecting the tax

of the United States.” Marshall's Defense at 100. <Ac-

cording to Marshall, the adoption of such an extreme

measure would not be “plainly adapted” to the end of

collecting federal taxes, but instead would indicate that

Congress, “ ‘under the pretext of executing its powers,’ ”

was really acting “ ‘for the accomplishment of objects not

intrusted to the [federal] government.’” Id. (quoting

McCulloch, 17 U.S. at 423). Moreover, relying upon

contemporaneous dictionary definitions of the word “ap-

propriate,” he went on to explain that “means which are

‘appropriate’ . . . must ‘directly and necessarily tend to

13

produce’ the end in question. Id. at 102; see also id. at

186, 189 (discussing meaning of “appropriate” ).°

During the ensuing 40 years, Marshall’s “appropriate-

ness” test for determining the existence of an implied

congressional power—and for construing the Necessary

and Proper Clause—was quoted and discussed in nu-

merous legal commentaries. E.g., | Story, Commentaries

on the Constitution § 432, at 417 (1833); New York v.

Commissioners, 67 U.S. 620 (1862).° Often his formu-

lation, and his view of implied powers generally, were

roundly criticized, especially by the most ardent state-

rights advocates. E.g., Niles Weekly Register, March

13, 1819, at 41-44, reprinted in Great Lives Observed:

John Marshall 104-07 (Kutler ed., 1972)

Thus, by the time the Fourteenth Amendment was

drafted and ratified in 1868, the phrase “appropriate leg-

islation” had a well defined meaning: It referred to any

legislation that would pass muster under the standard

articulated in McCulloch. As discussed in more detail

5In a later essay, Marshall warned that Congress’ discretion to

select “appropriate” legislation may not be “fraudulently used to

the destruction of the fair land marks of the constitution. Con-

gress certainly may not, under the pretext of collecting taxes, or of

guaranteeing to each state a repubilcan form of Government, alter

the law of descents; but if the means have a plain relation to the

end—if they be direct, natural and appropriate, who, but the people

at the elections, shall, under the pretext of their being unnecessary,

control the legislative will, and direct its understanding?” Mar-

shall’s Defense at 178.

® Later, the McCulloch standard came to be equated with “ra-

tionality” review, E.g., Hodel vy. Virginia Surface Mining &

Reclamation Ass'n, 452 U.S. 264, 276 (1981); Williamson Vv.

Lee Optical, Inc., 348 U.S. 483, 488 (1955). However, as shown

in the text, Marshall's own approach was considerably stricter

than this. See supra pp. 10-11. There is substantial historical

evidence, moreover, that the Necessary and Proper Clause has

more restrictive force than is generally thought today. See Law-

son & Granger, The “Proper” Scope of Federal Power: A Juris-

dictional Interpretation of the Sweeping Clause, 43 Duke L. J.

267 (1993).

14

below, that formulation placed substantial limits on con-

gressional authority. However, because the McCulloch

standard allows Congress to go somewhat beyond what is

“indispensably necessary” to carry out an enumerated

power or to pursue a constitutionally legitimate objective,

the drafters (and ratifiers) of the Fourteenth Amendment

plainly could not have meant to limit Congress’ legislative

options to those that were indispensably necessary to com-

pel compliance with the requirements of that Amendment.

2. Section 5’s history compels the same conclusion.

On January 22, 1866, a special subcommittee of the Joint

Committee on Reconstruction was established to draft

what was to become the Fourteenth Amendment. Ken-

drick, The Journal of the Joint Committee of Fifteen

on Reconstruction 37-38, 55-56 (1969). The Joint Com-

mittee considered several variations of what would be-

come Section 5. Among them was the following proposal

by Representative John A. Bingham, which the Joint

Committee approved:

The Congress shall have power to make all laws

which shall be necessary and proper to secure to the

citizens of each state all privileges and immunities

of citizens in the several states (Art. 4, Sec. 2); and

to all persons in the several States equal protection

in the rights of life, liberty and property (Sth Amend-

ment).

Id. at 61. Bingham presented the proposed amendment in

the House on February 26, 1866. Cong. Globe, 39th

Cong., Ist Sess, 1033-34 (1866). Both proponents and

opponents of the Amendment believed it gave substantial

lawmaking power to the Congress at the expense of the

States. E.g., Cong. Globe, 39th Cong., Ist Sess. 1063-65

(1866) (statements of Sen. Hale); id. at 1082 (statement

of Sen. Stewart); id. at 1095 (statement of Rep. Hotch-

kiss); id. at app. 133-35 (statement of Rep. Rogers).

However, the principal attack on Bingham’s proposal cen-

tered, not on the power it would give Congress to regulate

State action, but on the fact that the proposai would give

15

Congress an unusually broad power to regulate private

conduct, i.¢., it would give Congress authority to “pass

uniform legislation in areas traditionally left to the states,

such as marriage, property, and definition of crimes.”

Curtis, No State Shall Abridge 69 (1986). Accordingly,

as Senator Stewart put it, the proposed amendment would

“obviate the necessity of any more State legislatures” by

giving Congress what amounted to a general police power.

Id. at 70.

Because of this controversy, Congress postponed con-

sideration of the proposed amendment. The Joint Com-

mittee then set about redrafting the amendment in late

April. Kendrick, supra, at 83-115. On April 30, 1866,

the Committee reported to Congress the text of what later

became the Fourteenth Amendment. Cong. Globe, 39th

Cong., Ist Sess. 2265, 2286 (1866). Section 5 of that

proposal granted enforcement power to Congress, while

Section 1 created disabilities on state action, thereby em-

phasizing that those disabilities are freestanding and do

not require affirmative support by Congress. Curtis, supra,

at 85. The revised article of amendment, moreover, was

narrower than the original proposal, in that it reached

only state action, not private action. Cong. Globe, 39th

Cong., Ist Sess. 2459 (1866) (statement of Rep. Evans);

id. at 2765 (statement of Sen. Howard); Gregory vy. Ash-

croft, 501 U.S. 452, 468 (1991); City of Richmond v.

J.A. Croson Co., 488 U.S. 469, 490 (1989). Accord-

ingly, this version did not evoke the broad concern over

possible congressional power to prescribe nationally uni-

form laws with respect to life, liberty, and property. See,

e.g., Cong. Globe, 42d Cong., Ist Sess. app. 151 (1871)

(statement of Rep. Garfield).

Section 5 also contained a different formulation of the

scope of Congress’ discretion to select the means it

could use in carrying out the ends authorized by other

sections of the Amendment. However, this difference was

not significant. Bingham’s original proposal had simply

borrowed the phrase “necessary and proper” from Article

16

I, which McCulloch had interpreted as allowing Congress

the power, not only to choose those means that are in-

dispensable to carrying out one of the enumerated powers,

but means that are “appropriate” to that end. See supra

p. 11. Thus, there was no substantive difference between

the “necessary and proper” formulation in Bingham’s

original proposal, and the “appropriate legislation” re-

quirement of what became Section 5.

This fact—as well as the fact that “appropriate” was

by then a term of art—is confirmed in subsequent remarks

by Senator Thurman:

What is meant by this term “appropriate legislation?”

We know where the term comes from. We know it

comes from an old opinion of Chief Justice Marshall,

and was applied by him simply to the old provision

of the Constitution that Congress has power to make

all laws necessary and proper for carrying into effect

the foregoing powers.

Cong. Globe, 41st Cong., 2d Sess. 602 (1870).

In short, both the language and history of Section 5

demonstrate that it gives Congress the power to adopt

means that would be considered “appropriate” under the

McCulloch standard, so long as the end being pursued

falls within one of the Amendment’s sections, and so

long as the means chosen are directed at state action and

do not violate some other constitutional restriction on

Congress’ power. Congress’ discretion, although limited,

was thus not restricted to those means that might be

thought indispensably necessary to carry out a constitu-

tional objective.

3. This conclusion is further confirmed by this Court’s

decisions interpreting Section 5 and similar provisions in

the Thirteenth, Fifteenth, and Eighteenth Amendments.

The seminal exposition of Section 5’s requirements was

provided in Ex parte Virginia, which held that the pro-

visions of the Civil Rights Act of 1875 forbidding the

exclusion of jurors on account of their race were within

ee ee

17

Congress's power under Section 5 to enforce Section 1’s

“equal protection” guarantee:

Whatever legislation is appropriate, that is, adapted

to carry out the objects the amendments have in view,

whatever tends to enforce submission to the prohibi-

tions 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.

100 U.S. at 345-46 (emphasis added). Although the Court

did not cite McCulloch, the language it used in explicating

the term “appropriate” is obviously reminiscent of Mar-

shall’s definition of an “appropriate” means, i.e., one that

is “plainly adapted” to a constitutionally legitimate end,

one which “directly and necessarily tends to produce” that

end, and is not otherwise prohibited. See supra pp. 10-11;

see also South Carolina v. Katzenbach, 383 U.S. 301,

325 (1966) (recognizing that Ex Parte Virginia’s defini-

tion of “appropriate” is functionally identical to Mar-

shall’s). The similarities between the formulations are

simply too striking to have occurred by accident. Thus,

in its earliest interpretation of the operative phrase in

Section 5, this Court implicitly recognized that this phrase

was a term of art, and gave it the same well established

meaning it had had ever since McCulloch.

Not surprisingly, the Court has upheld a variety of

statutes that, although they “tend[ed] to enforce submis-

sion to the prohibitions” of the Fourteenth Amendment,

were not “indispensably necessary” to that end. Ex Parte

Virginia itself is a prime example. There, the Court held

(1) that the right to a trial “by jurors indifferently selected

or chosen without discrimination . . . because of their

color” was an aspect of the right granted by Section 1 to

“equal protection of the laws” (100 USS. at 345), and

(2) in pursuit of this constitutionally proper end, it was

within Congress’ power under Section 5 to prescribe crimi-

nal penalties, including imprisonment, for any State offi-

cial, including a State judge who (as was alleged in that

18

case) excluded a juror on account of his race (id. at

345-48).

The dissent objected, in part, to the breadth of the

means chosen by Congress to achieve the goal of prevent-

ing race-based exclusions, namely, the “exercise [of] co-

ercive authority over judicial officers of the States in the

discharge of their duties under State laws.” Id. at 358

(Field, J., dissenting). The majority itself, moreover,

alluded to an arguably narrower or less intrusive means

by which Congress could have achieved its goal—simply

“declar[ing] void any action of a State in violation of the

prohibition.” Id. at 345. Yet the Court nevertheless up-

held Congress’ chosen mechanism under Section 5 because,

as noted above, it was “adapted to carry out” an end the

Court found to be within Section 1, and “tend[ed] to

enforce submission to the prohibitions” of that Section.

Respondent Flores’ brief presents an excellent analysis

of this Court’s subsequent decisions construing Section 5,

as well as identical provisions in the Thirteenth, Fifteenth,

and Eighteenth Amendments. Without duplicating that

analysis here, we note two conclusions that must emerge

from any honest evaluation of those decisions.

First, in accordance with the standard articulated in

Ex Parte Virginia, this Court has consistently and fre-

quently upheld, as “appropriate legislation” under each

of those Amendments, laws that went at least somewhat

beyond what would have been indispensably necessary to

effectuate the end specified in the Constitution. This is

true whether the end sought to be served by the legisla-

tion was, for example, preventing the states from abridg-

ing voting rights based on race (e.g., South Carolina v.

Katzenbach; Oregon v. Mitchell, 400 U.S. 112 (1971);

City of Rome v. United States, 446 U.S. 156, 172-83

(1980); preventing the states from discriminating on the

basis of sex in employment (e.g., Fitzpatrick v. Bitzer,

427 U.S. 445 (1976) ); or preventing the sale of intoxicat-

ing beverages during Prohibition (e.g., National Prohibi-

tion Cases, 253 U.S. 350, 387-88 (1920)). In at least two

NT ee ee ee

19

such cases, moreover, this Court held that Congress has

the power to adopt means under Section 5 which the Court

had previously (or simultaneously) held were not indis-

pensably necessary to the pursuit or achievement of the

end that Congress sought to achieve. See South Carolina

V. Katzenbach (upholding congressional ban on literacy

tests even though the Court had previously held that liter-

acy tests do not necessarily violate the Fifteenth Amend-

ment); City of Rome (upholding law requiring preclear-

ance of changes in voting practices with potentially dis-

criminatory effects, even though the Court held the same

day that electoral practices with discriminatory effects

only do not violate the Constitution absent proof of dis-

criminatory intent).

Second, these decisions by and large did not rest (and

need not have rested) upon the broad conception of con-

gressional power described in Katzenbach v. Morgan.

There, the Court suggested (as part of an alternative hold-

ing) that Congress has discretion under Section 5, not

only to choose the most appropriate means to pursue a

particular end, but also to choose the end itself by adopt-

ing an expansive interpretation of a constitutional right.

384 U.S. at 652 (Congress can appropriately conclude

that literacy tests themselves violate the Equal Protection

Clause, even though the Supreme Court had previously

held that such tests were not a violation of the Clause).

Joined by Justice Stewart, Justice Harlan correctly ob-

jected to this reasoning as “[iJn effect . . . giving Con-

gress the power to define the substantive scope of the

[Fourteenth] Amendment.” Id. at 668 (Harlan, J., dis-

senting). Notably, none of the Court's earlier (and later)

decisions sustaining legislation under Section 5 relied

upon any such sweeping power.

Instead, as shown below, those decisions have respected

an important limitation upon Congress’ exercise of the

Section 5 power, namely, that the end Congress seeks to

achieve in exercising that power be supplied, not by Con-

gress itself, but by the Constitution. It is to the propriety

of that restriction—and others—that we now turn.

20

B. Section 5 Does Not Authorize Congress To At-

tempt To Protect Rights Not Plainly Encompassed

Within The Fourteenth Amendment; Adopt Rem-

edies With An Insufficient Nexus To A Right

Legitimately Protected By That Amendment; Reg-

ulate Purely Private Conduct; Trench Upon State

Prerogatives Absent A Clearly Expressed Intent;

Or Violate Other Provisions Of The Constitution.

Congress’ Section 5 authority carries with it at least

five internal limitations, all of which significantly restrict

Congress’ ability to intrude into the States’ proper domain.

1. As already noted, and contrary to the suggestion

in Morgan, Congress may not arrogate to itself the au-

thority to determine the ends that it may pursue in the

exercise of its Section 5 authority. Instead, its action

must be directed at an end that fairly and legitimately

falls within the text of the Fourteenth Amendment. This

is so for several reasons.

First, by its very language, Section 5 gives Congress only

the authority to “enforce” the guarantees of the Fourteenth

Amendment, not to define their scope. And Congress is

empowered to enforce only “the provisions” of that

Amendment. This implies that, insofar as the Amendment

gives rise to personal rights, Congress may enforce only

those rights that fairly fall within the Amendment’s text

(including its incorporation of other express constitu-

tional rights), not those derived—appropriately or not—

from the Amendment’s “penumbrae.”* Moreover, given

7 Right or wrong, the notion that a provision of the Constitu-

tion can possess penumbrae that themselves give rise to enforce-

able rights is a product of the 20th Century. Accordingly, even if a

prior judicial decision holds that a particular right, which does not

fall fairly within the Fourteenth Amendment’s text (or another

constitutional provision incorporated by reference therein), never-

theless is protected under that Amendment, such a decision does

not necessarily establish that Congress has authority under Section

5 to enact legislation in pursuit of that right. Thus, for example,

the fact that this Court has recognized a qualified right to abortion

in such decisions as Roe v. Wade, 410 U.S. 113 (1973), would not

|

21

the hostile congressional reaction to Rep. Bingham’s orig-

inal proposal (supra pp. 14-15), it is inconceivable that

the Fourteenth Amendment would have passed Congress,

much less have been ratified by the States, if it had al-

lowed Congress either to define for itself the scope of the

rights and disabilities created by the Amendment, or to

“enforce” individual rights lacking a firm anchor in the

Amendment’s text.

Second, allowing Congress to “define the substantive

scope” of the Amendment, as Justice Harlan put it in his

Morgan dissent, would be contrary to the approach

adopted in McCulloch and its progeny. McCulloch held

that, to exercise an implied power, Congress must act in

the service of an “end” that is “legitimate [and] within

the scope of the constitution.” 17 US. at 421. Similarly,

Ex Parte Virginia treated the Amendment’s “objects” and

“prohibitions” as fixed, and not subject to enlargement

by Congress. See 100 U.S. at 435-46. The same is true

of this Court’s other decisions construing Section 5, with

the exception of Morgan.

2. The next limitation is the requirement that the leg-

islation be “plainly adapted” to—and that it “directly

and necessarily tend to produce”—the legitimate end at

issue. As Chief Justice Marshall warned in McCulloch,

a reviewing court can and should hold such legislation

unconstitutional if it appears from the legislation itself

that Congress “under the pretext of executing its powers,

[has] pass[ed the] law[] for the accomplishment of ob-

mean that Congress can use the Section 5 power to “enforce” that

right.

In any event, even without overruling that decision (or others

recognizing rights not firmly rooted in the text of the Constitu-

tion), this Court could well decline to extend its reasoning to the

Section 5 context under ordinary principles of stare decisis. After

all, overturning a decades-old Court decision could upset settled

expectatons and reliance interests that simply do not attach to a

newly enacted statute. See, e.g., Planned Parenthood Vv. Casey,

510 U.S. 1309 (1994) (plurality opinion of O’Connor, Kennedy, and

Souter, JJ.) (discussing importance of reliance interests in deci-

sion to apply stare decisis).

22

jects not intrusted to the government.” 17 U.S. at 423.

As examples, Marshall cited hypothetical federal laws al-

tering inheritance laws and denying to the States the

power to impose a general land tax. See supra p. 12.

Such scrutiny does not mean, of course, that a court

should engage in a wide-ranging inquiry into the motives

of individual memebers of Congress, much less of Con-

gress as a body. Cf. United States v. Darby, 312 US.

100, 115 (1941) (noting impropriety of such an in-

quiry); United States v. O’Brien, 391 U.S. 367, 383-84

(1968) (same). However, if the means selected are so

unrelated to the asserted end as to suggest that the statute

was passed in furtherance of an end that falls outside the

Fourteenth Amendment, the statute should not be deemed

“appropriate legislation.”

3. Congress also may not invoke Section 5 to justify

legislation that reaches beyond state action to purely pri-

vate conduct. Like the other limitations discussed above,

this limitation serves the interests of federalism because

it prevents Congress, in the words of Senator Stewart,

from “obviat[ing] the necessity of any more State Legis-

latures.” See Cong. Globe, 39th Cong., Ist Sess., at 1082

(1866). As discussed above, it was to avoid precisely this

result that Congress rejected Representative Bingham’s

Original proposal, which did not include an express “state

action” requirement. See supra pp. 14-15.

That the Fourteenth Amendment (other than Section

4 relating to war debts) does not reach purely private

conduct is demonstrated by an examination of its text.

The key provisions of Section 1, for example, are phrased

as disabilities on the States: “No State shall make or

enforce any law which shall abridge the privileges or im-

munities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property, with-

out due process of law... .” See Croson, 488 U.S. at

490 (“Section one of the Fourteenth Amendment is an

explicit constraint on state power”). Thus, the individual

rights that are implied by Section | are rights as against

eT

23

the States, not rights as against private citizens in the

absence of some connection to state action. Although

some Justices have occasionally suggested otherwise in

the past," this Court has consistently upheld and enforced

Section 5’s state action requirement: Civil Rights Cases,

109 U.S. 3, 11-14 (1883); James v. Bowman, 190 US.

127 (1903); United Bhd. of Carpenters v. Scott, 463

U.S. 825, 831 (1983): accord Metro Broadcasting, Inc.

v. FCC, 497 U.S. 547, 606 (1990) (O'Connor, J., dis-

senting, joined by Rehnquist, C.J., Scalia, J., and Ken-

nedy, J.).

4. Next, given that Section 5 was enacted against the

backdrop of the Eleventh Amendment, if Congress in-

tends to abrogate the States’ sovereign immunity it must

clearly state its intent to do so. Gregory Vv. Ashcroft, 501

U.S. 452, 469 (1991) (“‘we should not quickly attribute

to Congress an unstated intent to act under its authority

to enforce the Fourteenth Amendment’ ”’) (quoting Penn-

hurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 16

(1981)); see also Dellmuth v. Muth, 491 U.S. 223, 227-

28 (1989) ( Kennedy, J., joined by Rehnquist, C.J., and

O’Connor and Scalia, JJ oD.

5. Finally, Congress lacks the power under Section 5

to adopt legislation that is otherwise “prohibited” by the

Constitution. McCulloch, 17 US. at 423. Thus, peti-

tioner and its amici are correct that Congress cannot use

Section 5 to enact legislation that violates the constitu-

tional separation of powers, or provisions of the Bill of

Rights such as the Establishment Clause of the First

Amendment. Congress likewise may not legislate under

Section 5 in a way that violates rights protected by the

Fourteenth Amendment itself. As Justice O’Connor has

noted, Section 5 “grants Congress no power to restrict,

8 District of Columbia v. Carter, 409 U.S. 418, 423 n.8 (1973)

(dictum); United States vy. Guest, 388 U.S. 745, 762 (1966)

(Clark, Black, and Fortas, JJ.); id. at 781-84 (Brennan, J., War-

ren, C.J., and Douglas, J.).

24

abrogate, or dilute these guarantees.” Mississippi Univ.

for Women v. Hogan, 458 U.S. 718, 732 (1982) (O’Con-

nor, J.); accord Adarand Constructors, Inc. v. Pena, 115

S. Ct. 2097 (1995) (holding that Section 5 does not

give Congress the authority to “enforce” the Equal Pro-

tection Clause in favor of some citizens in a manner that

violates the equal protection rights of others).

C. RFRA Falls Within Congress’ Narrow Section 5

Power, Without Transgressing Its Limitations.

With these limitations firmly in mind, we now turn to

a consideration of whether RFRA, as applied to the

States, falls within Congress’ power under Section 5. By

its terms, the statute applies only to governmental action,

and therefore easily satisfies Section 5’s state action re-

quirement. See 42 U.S.C. § 2000bb-3(a) (“This chapter

applies to all Federal and State law, and the implementa-

tion of that law... .”). RFRA also clearly states its in-

tention to abrogate the states’ sovereign immunity. And,

for reasons persuasively explained in the respondents’

briefs, RFRA does not run afoul of the Establishment

Clause.

Accordingly, the statute’s validity depends upon (1)

whether the end it seeks to promote falls within the scope

of the Fourteenth Amendment, and (2) whether the

means it uses satisfy Section 5’s “appropriate legislation”

requirement. As we row show, RFRA satisfies both of

these crucial requirements.

1. There can be no question that RFRA furthers a

constitutionally legitimate “end,” namely, protecting the

right to free exercise of religion articulated in the First

Amendment. In RFRA’s subtitle, the Act is expressly

denominated “[a]n Act to protect the free exercise of

religion.” Pub. L. No. 103-141, 107 Stat. 1488 (1993).

Similarly, the Senate Report, in discussing Congress’ au-

thority to enact RFRA, states that “the act is clearly de-

signed to implement the free exercise clause,” and that

it was “intended to enforce the right guaranteed by the

4

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25

free exercise clause... .” S. Rep. at 14 & n.43. Thus,

the only real issue with respect to the “end” Congress

sought to pursue in enacting RFRA is whether the right

to free exercise of religion is a right that Congress can

legitimately act to “enforce” against the States under

Section 5. It is.

Certainly, the right to free exercise of religion fairly

falls within the text—i.e., a “provision”—of Section 1.

That right is one of the “liberties” expressly protected

against congressional intrusion by the text of the First

Amendment. Accordingly, as this Court has held in Cant-

well v. Connecticut, 310 U.S. 296 (1940), and its pro-

geny, the right to free exercise of religion fits comfortably

within Section 1’s prohibition of state action that would

“deprive [] [any person] of .. . liberty . . . without due

process of law.” Id. at 303: accord Employment Div. v.

Smith, 494 U.S. 872, 876-77 (1990).°

The conclusion that the Fourteenth Amendment incor-

porates the Free Exercise Clause is confirmed by ample

evidence that the drafters of Section 5 believed it would

give Congress authority to enforce against the States the

rights already guaranteed, as against congressional action,

by the First Amendment. Senator Howard, who intro-

duced the revised draft of the Fourteenth Amendment in

the Senate, was most explicit on this point. Alluding to

the existing lack of power on the part of Congress to

enforce against the States the first eight Amendments to

the Constitution, he stated: “{I]f they [the first eight

Amendments] are to be effectuated and enforced, as they

®On its face, the right to free exercise of religion fits even

more comfortably within Section 1’s prohibition on state action

that would “abridge [a] “privilege[] or immunit[y] of citizens

of the United States.” U.S. Const. amend. XIV, §1. The contrary

conclusion in the Slaughter-House Cases, 83 U.S. (16 Wall.) 36

(1873), has been persuasively criticized on textual and historical

grounds. See Amar, The Bill of Rights and the Fourteenth Amend-

ment, 101 Yale L. J. 1193 (1992).

26

assuredly ought to be, . . . additional power should be

given to Congress to that end. This is done by the fifth

section of this amendment.” Cong. Globe, 39th Cong., Ist

Sess. 2765-66 (1866). Similarly, Representative Bingham,

who introduced the proposed amendment in the House,

observed that Section 5 would “arm the Congress of the

United States, by the consent of the people of the United

States, with the power to enforce the bill of rights as it

stands in the Constitution today.” Id. at 1088; accord

id. at 1072 (statement of Sen. Nye); id. at 1629 (state-

ment of Rep. Hart). There were many statements to

this same effect during the subsequent campaign for

ratification by the State (see Curtis, supra, at 133-44

(collecting authorities)), and during subsequent Recon-

struction Congresses. See Cong. Globe, 42d Cong., Isi

Sess. app. 69 (1871) (statement of Rep. Shellabarger) ;

id. at app. 84-85 (statement of Rep. Bingham). See also

2 Cong. Rec. app. 242 (1874) (statement of Sen. Nor-

wood); id. at 384-85 (statement of Rep. Mills)."®

2. The means adopted by RFRA for enforcing the Free

Exercise Clause likewise satisfy Section 5’s “appropriate

legislation” requirement. As noted earlier, we assume that

this Court’s decision in Smith identified the outer bound-

‘© That the Framers meant to give Congress the power to enforce

the First Amendment (and other provisions of the Bill of Rights)

against the States is hardly surprising in light of then-prevailing

political considerations. Those considerations dictated that the

goals of the Reconstruction Congresses with respect to the rights

of former slaves, especially in the South, be wrapped in a broad

and politically appealing agenda for securing the civil rights of all

citizens, including a broad spectrum of individual liberties.

James, The Framing of the Fourteenth Amendment 21-33 (1965).

More specifically, as the brief for respondent Flores shows, the

protection of religious liberty against the States was a central part

of the Reconstruction agenda, owing to the fact that southern States

had sometimes restricted religious meetings among slaves and de-

prived them of access to the Bible. See Lash, The Second Adoption

of the Free Exercise Clause: Religious Exemption Under the

Fourteenth Amendment, 88 Nw. U. L. Rev. 1106, 1131-37, 1145-49

(1994).

27

aries of the limitations imposed upon States directly by

the Fourteenth Amendment's incorporation of that Clause.

On that assumption, RFRA concededly goes beyond

merely compelling the States to comply with those re-

quirements. However, as shown above, that alone has

never been a basis to hold that Congress has exceeded its

authority, whether Congress acts under the Fourteenth

Amendment (as in Ex Parte Virginia), one of the other

Reconstruction Amendments (as in City of Rome and

South Carolina v. Katzenbach), or one of the powers

enumerated in Article I (as in McCulloch). Rather,

assuming the legislation does not run afoul of some ex-

ternal constitutional limitation, the question is always

whether, in Chief Justice Marshall’s formulation, the legis-

lation is “plainly adapted” to its end, and “directly and

necessarily tends to produce” it. See McCulloch, 17 U.S.

at 421.

RFRA satisfies this test. As construed in Smith, the

Free Exercise Clause, of its own force, provides important

protections against certain kinds of State action:

The free exercise of religion means, first and fore-

most, the right to believe and profess whatever re-

ligious doctrine one desires. Thus, the First Amend-

ment obviously excludes all “governmental regula-

tion of religious beliefs as such.” . . . The government

may not compel affirmation of religious belief, . . .

punish the expression of religious doctrines it believes

to be false, . . . impose special disabilities on the

basis of religious views or religious status, . . . or lend

its power to one or the other side in controversies

over religious authority or dogma.

494 U.S. at 877 (citations omitted). Under Smith, more-

over, the Free Exercise Clause protects, in at least some

circumstances, religiously motivated “performance of (or

abstention from) physical acts.” Id. As to those, Smith

recognized that “a State would be ‘prohibiting the free

exercise [of religion]’ if it sought to ban such acts or

28

abstentions only when they are engaged in for religious

reasons, or only because of the religious belief that they

display.” Id.; see also Church of Lukumi Babalu Aye Vv.

Hialeah, 508 U.S. 520 (1993) (applying this principle

to invalidate local ordinance ).”'

Although RFRA adopted the “compelling interest” test

that Smith held was not mandated by the Free Exercise

Clause, Congress was well within its discretion in conclud-

ing that the adoption of this test was an “appropriate”

means by which to enforce the requirements of that Clause.

This is so for two reasons.

The first is deterrence. When it enacted RFRA, Con-

gress had before it evidence that, without the constraint

of the compelling interest test, governments could and

sometimes would, in violation of those prohibitions recog-

nized in Smith, deliberately discriminate against religious

beliefs or practices under the cloak of a “neutral” or

“generally applicable” law. See S. Rep. at 5 & n.3; H.R.

Rep. at 2 & n.2. Witnesses testified that state legislators

wishing to target a particular religion or a particular

religious practice would “camouflage [their intention] in

a law of general applicability.” Religious Freedom Restor-

ation Act of 1991: Hearings Before the Subcommittee on

Civil and Constitutional Rights of the Committee on the

Judiciary, House of Representatives, 102d Cong., 2d Sess.

105 (1992) (Statement of Nadine Strossen, President,

National Board of Directors, ACLU). Indeed, that is

essentially what this Court found that the local govern-

ment in the Hialeah case had done, though somewhat

ineptly. See 508 U.S. at 520. And in other contexts, this

11 Smith, on the other hand, held that the Free Exercise

Clause does not, of its own force, (1) prevent governments from

enacting generally applicable or “neutral” laws that incidentally

burden religious exercise, or (2) require governments to justify

such laws by showing that they are “narrowly tailored,” in some

sense, to the promotion of a “compelling government interest.” 494

U.S. at 878-89.

29

Court has noted the risk of “subtle departures from neu-

trality” in the enactment or enforcement of state laws,

Gillette vy. United States, 401 U.S. 437, 452 (1971),

and the distinct possibility of “covert suppression of par-

ticular religious beliefs,” Bowen v. Roy, 476 U.S, 693,

703 (1986) (opinion of Burger, C.J.).

Such suppression could of course operate to “punish the

expression of religious doctrines [the government] believes

to be false,” “impose special disabilities on the basis of

religious views or religious status,” or even “ban . . . acts

or abstentions only when they are engaged in for religious

reasons, or only because of the religious belief that they

display”—as the Court found in the Hialeah case. 508

U.S. at 521. Any of those government actions would

violate the Free Exercise Clause as construed in Smith.

RFRA’s compelling interest test is “plainly adapted” to

discourage such unconstitutional government actions, and

obviously “tends” to do so, as the McCulloch test requires.

The mere possibility that government officials may be

called upon, in a court of law, to justify their actions

obviously deters violations of the Free Exercise Clause.

Certainly, Congress was within in its discretion in so

finding. See supra p. 28.

The second reason is remediation. Congress concluded

that, absent a compelling interest test, those whose consti-

tutional free exercise rights have been violated would

nevertheless “be forced to convince courts that an inap-

propriate legislative motive” was behind the statute or

regulation at issue. H.R. Rep. at 6. Proving such a

motive is notoriously difficult and necessitates intrusive,

and often embarrassing, discovery. Id. Moreover, the

necessity of proving such a motive will often mean that

many violations of the Free Exercise Clause (again, as

interpreted in Smith) will go unremedied.

Once again, RFRA’s compelling interest test directly ad-

dresses this problem. If a governmental body surrepti-

30

tiously “punish[es] the expression of religious doctrines

[the government] believes to be false, . . . impose[s] spe-

cial disabilities on the basis of religious views or religious

status” or bans physical “acts or abstentions . . . only

because of the religious belief that they display,” Smith,

494 U.S. at 877, RFRA allows the aggrieved party a

remedy without engaging in protracted and intrusive litiga-

tion over legislative motives. In this regard, RFRA is no

different from many other statutes designed to enforce

other rights protected by the Reconstruction Amendments,

and sustained by this Court under Section 5 and analogous

provisions. E.g., Oregon v. Mitchell; South Carolina v.

Katzenbach.

Simply put, RFRA’s compelling interest test directly

encourages all governments—federal, state, and local—to

respect and adhere to the core prohibitions of the Free

Exercise Clause, and directly assists in remedying viola-

tions where they occur. No objective could be more legiti-

mate, and no legislation more “appropriate” to that end.

CONCLUSION

For the foregoing reasons, these amici respectfully urge

this Court to affirm the decision of the Court of Appeals,

and to hold that the Religious Freedom Restoration Act,

to the extent it applies to the States, is a facially constitu-

tional exercise of Congress’ authority under the Fourteenth

Amendment.

Respectfully submitted,

CARTER G. PHILLIPS

GENE C. SCHAERR *

MICHAEL J. RAPHAEL

CHRISTOPHER D. MOORE

SIDLEY & AUSTIN

1722 Eye Street, N.W.

Washington, D.C. 20006

(202) 736-8000

January 10, 1997 * Counsel of Record