Amicus Curiae Brief — City of Boerne v. Flores

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: | Supreme Court, U.S.

4H Pik & D

JAN 10 1997

No. 95-2074

OLERK

Ce ne en eee

3u the Supreme Court of the United States

OCTOBER TERM, 1996

CITY OF BOERNE, TEXAS,

Petitioner,

VS.

P. F. FLORES, ARCHBISHOP OF SAN ANTONIO AND

UNITED STATES OF AMERICA,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF OF AMICUS CURIAE STATE OF TEXAS

DAN MORALES

Attorney General of Texas

JORGE VEGA

First Assistant Attorney General

SAMUEL W. GOODHOPE

Special Assistant Attorney General

JAVIER AGUILAR

Special Assistant Attorney General

P. O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 475-4679

Fax: (512) 463-2063

January 10, 1997 Counsel for Amicus Curiae

—

[BEST AVAIL

QUESTIONS PRESENTED

Amicus curiae State of Texas will address the following

question (question “2.” as set forth in the Brief of Petitioner):

Whether Congress violated the constitutional

balance between its power under Section 5

of the Fourteenth Amendment and

fundamental principles of federalism by

commandeering state and local governments

to be agents of a federal policy to

accommodate religious exercise more than

the Constitution requires.

TABLE OF CONTENTS

Page(s)

QUESTIONS PRESENTED cosccccscsssossssorsecenes i

FABLE OF COUNTEINGS © icisineniiuninsenie ii

TABLE OF AUTHORITIES © ssceccsscsmeosasssopteves iv

INTEREST OF AMICUS CURIAE

STATE OF TEAAG . ccwieccastsmenisincdhissines l

SUMMARY OF ARGUMENT _ ........ccccecceeeees 2

ARGUMENT cerss:sssstiessninstaiataainaanals A

ERCHRTOIE issincissssstseicidensaniaabesonincinees 4

I. THE FEDERALISM FRAMEWORK: THE TEXT AND

STRUCTURE OF THE CONSTITUTION, AS AMENDED

BY THE TENTH AMENDMENT, ESTABLISH THE

APPROPRIATE BALANCE BETWEEN THE FEDERAL

AND STATE GOVERNMENTS ........scccccsseeeceeeeesereees 9

li. THE ULTIMATE OBJECTIVE OF THE FEDERALISM

FRAMEWORK: PROTECTING THE FUNDAMENTAL

RIGHTS AND POWERS OF CITIZENS .............e0ese+ 13

II]. THE FOURTEENTH AMENDMENT WAS INTENDED

TO ADVANCE THE ULTIMATE OBJECTIVE OF

FPEDGRALIINE © cancracssateviccoheisaenaaiceniaaes 15

eee

IV. DesPITE THE ULTIMATE OBJECTIVE OF THE

FOURTEENTH AMENDMENT TO PROTECT

FUNDAMENTAL RIGHTS AND POWERS OF OuR

CITIZENS, IT DoES NOT PROVIDE CARTE

BLANCHE TO THE FEDERAL GOVERNMENT To

RUN ROUGHSHOD OVER STATE AND LOCAL

oe ace, SS ETDS ES ee

V. BECAUSE RFRA Is CONSISTENT WITH

THE FEDERALISM FRAMEWORK, AS WELL

AS WITH THE ULTIMATE OBJECTIVE OF THE

FEDERALISM FRAMEWORK, RFRA IS

CONSISTENT WITH THE LETTER AND SPIRIT

OF THE CONSTITUTION WITH REGARD TO

PUDURALIGM TBGURB oocnccecvdescecesessosenss.............

A. There Are No State or Local

Government Interests That Are Needlessly,

or Unconstitutionally Sacrificed by RFRA.

1. State and Local Governments’ Right

and Power to Protect, Maintain, and

Regulate PrOMerty .n...cccccssececsesesesss....

2. Ensuring Accountability Between

Governmental Officials and Citizens......

SN hii

TABLE OF AUTHORITIES

Cases Page(s)

Adarand Constructors, Inc. v. Pena,

SES UR Ee teint aihncstictbiededtectivtntivon 8,9

Atascadero State Hospital v. Scanlon,

ED Paes Be Ae ieieceiccsttenniniscrnsionieiates 17

Blatchford v. Native Village of Noatak,

Fee TEE, Fie Cea chtcciitaticeninietntcrncdiveien 17

Board of Regents of State Colleges v. Roth,

GED TET. Sie CIS isccnisccctbicmsivnninterventsscics 22

California Coastai Commission v. Granite

Rock Company, 480 U.S. 572 (1987).......... 22

Coleman v. Thompson, 501 U.S. 722 (1991).... 14

Corpus Christi, City of v. Unitarian Church

of Corpus Christi, 436 S.W.2d 923

(Tex.Civ.App.--Corpus Christi 1968,

Rg Ft Oh gt Ree A ks Re eee 9

Delaware v. New York, 507 U.S. 490 (1993)... 22

Dolan v. City of Tigard,

S50 GR Rae Cee aretrerkesesiisccrteses: 22

EEOC v. Wyoming, 460 U.S. 226 (1983).......... 16

Employment Division v. Smith,

om A gt AEN RRR Ren Olena passim

Euclid v. Ambler Reality Co.,

ee ee ec cecicinietanebeadbvedinien 22

Federal Energy Regulatory Commission v.

Mississippi, 456 U.S. 742 (1982)............06 11

Fidelity Federal Savings & Loan Association

v. De la Cuesta, 458 U.S. 141 (1982)......... 22

Fitzpatrick v. Blitzer, 427 U.S. 445 (1976)....... 15

Flores, P.F. v. City of Boerne, Texas,

FAB Rok. oh ge Ae) Smuounranes 19

Fullilove v. Klutznick, 448 U.S. 448 (1980) ..... 9, 16

Gregory v. Ashcroft,

FE Sie Re Ce esctaciccisetimieaminhon sions 10, 13, 17

Hodel v. Virginia Surface Mining &

Reclamation Assn., Inc.,

SSR Wi. MOO CHIBI vives cincneeiscevecsesscce.. 24

Islamic Center of Mississippi, Inc. v.

City of Starkville Mississippi,

840 F.2d 193 (Sth Cir. 1988)................. 4

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

Larkin v. Grendel’s Den, Inc.,

PP UA. BIW GION ectscevnsecotecettdiecorsseecc.n. 4

McCulloch v. Maryland,

SW BO SU ilicet sg i 19, 20

Nevada v. Hall, 440 U.S. 410 (1979)............... 10

New York v. United States,

FO SE Se CTE wince niches passim

Oregon v. Mitchell, 400 U.S. 112 (1970) ......... 10, 18

Pennhurst State School and Hospital vy.

Halderman, 465 U.S. 89 (1984) .......c.c.00.... 17

Reynolds v. Sims, 377 U.S. 533 CERGS) onccccccene. 12

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

458 U.S. 469 (1989). 00... ccccccsccccccccees... 15

Rome, City of v. United States,

DOD TAB. BO TAM casthircnccsehececdicesdcs. 16, 19, 20

Sasnett v. Sullivan, 91 F.3d 1018

Wee Ge, PO 24

Schad v. Borough of Mt. Ephraim,

Cae Sah Ot SUE eke 4

Seminole Tribe of Florida v. Florida,

oe eG | eA ne are | 15

Sherbert v. Verner, 374 U.S. 398 CEPI D ncenncoves 4

Sierra Club v. Babbitt, 995 F.2d 571 ............. 6

Sierra Club v. Glickman, 82 F.3d 106 ............. 6

SOS v. Babbitt, No. MO95CA230 (U.S.D.C.

TG CARE, Fe Se 6

South Carolina, State of v. Katzenbach,

FOR Sie A TD ened 18

State of Texas v. Babbitt, No. W94CA27]1

(U.S.D.C. filed Sept. 30, 1994) ooo. 6

State of Texas v. United States, 1996 WL 411490

(EDA. Rll TS; THREE -vcndiiccdeisieueaecens 6

Texas v. United States, 74 U.S. (7 Wall.)

FO CEOTD cictwivintidecssbasissiatebap bata 14

United States v. Lopez,

S14 US. CURSE: inrciicccianine tee

Virginia, Ex parte, 100 U.S. 339 (1879)........... 18

Warth v. Seldin, 422 U.S. 490 (1975)............... 22

Wisconsin v. Yoder, 406 U.S. 205 (1972)......... 4

Constitution

CFs GOUT. BR. BV» We icrseabiceacetedbbniaiicie 10

1h ee OS ee ee ee 9

CFs SHEET. GHGI © secsacictsncetcinisvsnecounntinnnins passim

U.S, CONBT. GUNG: Fy sdsscecsttictesenniesisean passim

0) oe COE: CI Fae bacinssdurccieuecnseaie 15, 17

U.S, COMET. GUUUNE,. TEREO sincceidsdevntbticecstncerem 15

CB. COURT. SITU, TREY © cccncseveerstasanecssccineossiail passim

1.3. GOUT: GN FEV sccictenseceindocaaainees 15

Statutes

G2 USC... S Frees linatensvonsatceuiaiaiccisecnan 4

42 U.S.C. F OGRA) sci ciivsccissiccovessescescznvees 4

42 UGA. &. FRAO s Pe cncicssoisersacensabssinitecenes 10

Periodical materials

Jesse H. Choper, Observations on the Guarantee

Clause - As Thoughtfully Addressed by

Justice Linde and Professor Eule,

65 UNIV. oF COLO. L. REV. 741 (1994)....... 12 |

Akhil Reed Amar, The Central Meaning of

Republican Government: Popular Sovereignty,

Majority Rule, and the Denominator Problem,

65 UNIV. oF COLO. L. REV. 749 (1994)....... 12

Vii

Deborah Jones Meritt, Republican Governments

and Autonomous States: A New Role for

the Guarantee Clause,

65 UNIV. OF COLo. L. REV. 815 (1994)....... 11, 12

Erwin Chemerinsky, Cases Under the Guarantee

Clause Should Be Justiciable,

65 UNIV. OF COLO. L. REV. 849 (1994)....... 12

Louise Weinberg, Political Questions and the

Guarantee Clause,

65 UNIV. OF COLO. L. REV. 887 (1994)....... 12, 14

INTEREST OF AMICUS CURIAE

STATE OF TEXAS

The State of Texas files this amicus curiae brief on

behalf of the state and its citizens in order to protect the

Free Exercise rights of its citizens under the First

Amendment (as incorporated into the Fourteenth

Amendment) and the Religious Freedom Restoration Act.

SUMMARY OF ARGUMENT

The Tenth Amendment, the Guarantee Clause, and

the inherent structure of the Constitution establish the

appropriate balance between the federal and state

governments, i.e., appropriate federalism. Appropriate

federalism (or, as referred to herein, the Federalism

Framework), however, is not aimed at merely protecting the

rights and powers of states qua states, or to protect states

as abstract entities. Rather, it seeks to protect the

fundamental rights and liberties of our citizens by checking

the abuses of governmental power at any level.

The Fourteenth Amendment fundamentally altered

the balance between the federal and state governments. It

did so, however, in order to provide further protection for

the rights and liberties of our citizens.

Nonetheless, not all legislation putatively passed

pursuant to the Fourteenth Amendment is constitutional.

Legislation that violates other provisions of the

Constitution, or violates the “spirit” of the Constitution is

unconstitutional.

The Religious Freedom Restoration Act (“RFRA”)

was passed in 1993 pursuant to the Fourteenth Amendment.

Congress sought to reestablish the “strict scrutiny” test for

governmental action that affected the free exercise rights of

our citizens. According to Congress, the Court had

eviscerated this test in Employment Division v. Smith in

1990.

Petitioner has argued, inter alia, that RFRA violates

federalism by overriding the will of duly elected local

officials and commandeering state resources to fulfill

federal policy. The State of Texas files this amicus brief

because it believes that RFRA does not violate the “letter

or spirit” of the Constitution. It certainly does not

commandeer state resources to effectuate federal policy.

Rather, it assures that the promise of this country to

generations of immigrants regarding religious freedom

remains untrammeled by government at any level -- federal.

State, or local.

Thus, RFRA does not violate our federalism.

Rather, it fulfills the ultimate objective of federalism, i.e..

the protection of the fundamental rights and liberties of our

citizens.

ARGUMENT

Background

Congress enacted the Religious Freedom Restoration

Act (“RFRA”) in 1993.' Essentially, RFRA reestablished the

“compelling interests”/ “least restrictive means” test (i.e., the

“strict scrutiny” standard of review of governmental action)

set forth in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790

(1963) and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526 .

(1972).

Under this standard of review, with regard to zoning

disputes, such as the one at issue in this case, the courts had

established an increased scrutiny test for determining when

governmental action unconstitutionally impacts on First

Amendment rights. Larkin v. Grendel’s Den, Inc., 459 U.S.

116, 122, 103 S.Ct. 505, 509-510 (1982); Schad v. Borough

of Mt. Ephraim, 452 U.S. 61, 68 n.7, 101 S.Ct. 2176, 2183

n.7 (1981)(“When . . . a zoning [law] infringes upon [a

protected] first amendment [liberty], . . . it must be narrowly

drawn fand must further a_ sufficiently] substantial

government interest.”). See Islamic Center of Mississippi,

Inc. v. City of Starkville, Mississippi, 840 F.2d 293, 299 (Sth

Cir. 1988).

According to the text’ and legislative history of RFRA,

the enactment of RFRA was prompted by the Court’s

decision in Employment Division v. Smith, 494 U.S. 872, 110

' 42 U.S.C. § 2000bb, et seg. (1993).

42 U.S.C. § 2000bb(a)(4).

S.Ct. 1595 (1990). That decision, according to Congress,

“virtually eliminated the requirement that the government

justify burdens on religious exercise imposed by laws neutral

toward religion. . . .””

Furthermore, according to legislative history, RFRA

was enacted pursuant to Section 5 of the Fourteenth

Amendment.‘ Nothing in the text of RFRA, however. states

that it was enacted pursuant to the power of Congress

provided for by Section 5 of the Fourteenth Amendment.

In attempting to have RFRA set aside as

unconstitutional, Petitioners argue, inter alia, that RF RA:

. is a bold and unprecedented example of

federal social policy engineering that

commandeers the states to follow the federal

government’s decision to accommodate

religion more than the Constitution requires.

Thus, it violates core constitutional principles

of federalism in the Tenth Amendment.

[citation omitted.]} Congress is a body of

enumerated powers, and it must respect state

integrity in that exercise. [citations omitted]

. .. Congress has done in RFRA what--in our

constitutional scheme--only the states may do

themselves . . . Because of its expansive

sweep, RFRA colors every dealing a state or

municipality has with every religious believer,

church, or religious organization.’

3 Id.

* See H.R. Rep. No. 88, 103d Cong, Ist Sess., at 9 (1993); S. Rep. No.

111, 103d Cong., Ist Sess., at 13-14 (1993), reprinted in 1993

U.S.C.A.A.N. at 1903.

Petition for Certiorari, pp. 7 to 10.

Furthermore, in Section 3 of Part II of the Brief of

Petitioner, Petitioner argues that RFRA “violates the

principles of federalism reflected in the Tenth Amendment

and operating as an inherent constitutional limitation on the

exercise of Section Five authority against the states.” Brief

of Petitioner at 46.

State of Texas files this amicus brief in order to

respond to these federalism arguments. Texas has a great

concern about the proper application of the doctrine of

federalism. The State’s concern about appropriate

federalism, moreover, is at its apogee when Congress

putatively acts pursuant to its powers under Section 5 of the

Fourteenth Amendment and its actions impact upon state

sovereignty and state and local self-government.

For example, the State has spent enormous resources during the past

five years to ensure that federal bureaucrats and federal judges do not take

control--pursuant to over expansive views of the Endangered Species Act

--of the water and land resources owned by Texas citizens and managed

in accordance with the will of Texas citizens and the Texas legislature.

See Sierra Club v. Babbitt, 995 F.2d 571, Sierra Club v. Glickman, 82

F.3d 106, State of Texas v. Babbitt, No. W94CA271 (U.S.D.C. filed Sept.

30, 1994), SOS v. Babbitt, No. MO95CA230 (U.S.D.C. filed Oct. 20,

1995).

Also, the State has sought to ensure that the federal government,

and not the state government or its citizens, pays the costs of the federal

government’s failed immigration policies and failure to responsibly

reimburse state and local governments for the costs associated with illegal

immigration. See State of Texas v. United States, 1996 WL 411490

(D.D.C. July 15, 1996), appeal pending.

Texas’ defense of federalism has not been undertaken because of

theoretical or abstract “states’ rights” reasons or motives, but rather

because of the State’s deep concern that the rights and powers of Texas

citizens (such as our citizens’ property rights or their right to elect

officials who can be held accountable to them and who reflect their

concerns and viewpoints) not be needlessly eviscerated by overreaching

federal officials or by the federal judiciary over-expansively reading

federal laws and regulations.

In this case, however, Texas does not agree that there

are sufficient negative impacts on state self-government that

justify a lower level of constitutional protection for our

citizens as they seek to freely exercise their First Amendment

religious rights. It can be discerned when state sovereignty

and self-government are truly at risk and when they are not.

With all due respect to our sister states who argue differently,

and, indeed, to the Petitioner, they are not at stake in this

case.

RFRA does not unconstitutionally impinge on state and

local self-government. Despite assertions to the contrary,

State and local self-government will not grind to a halt if

state and local governments remain duly solicitous of our

citizens right to worship. State and local governments,

furthermore, will not be courting “anarchy”’ by following a

careful course of utmost scrutiny as they undertake

governmental action that impacts upon religious worship.

In this case, Texans’ right to worship and to freely

exercise their religion is being protected by RFRA and there

are no correlative “commandeerings” of state or local

governments that run afoul of the “Federalism Framework”

described infra.

Furthermore, RFRA-based lawsuits in the larger

context are not an onerous set of lawsuits with which to deal.

In general, the State of Texas Office of the Attorney General

handles approximately 26,000 active cases at any one time.

Of these, approximately, 2200 are inmate-related, non-capital

punishment cases. Of these 2200 inmate-related cases,

approximately 60 are RFRA-related. Thus, RFRA-related

cases represent .23 percent (that is, one-quarter percent) of

the entire caseload of the Texas Attorney General’s office,

and about 2.7 percent of the inmate-related (non-capital

punishment) caseload of the State of Texas. Moreover, of

” See Employment Division v. Smith, 494 U.S. at 888, 110 S.Ct. at 1605.

the approximately 60 RFRA-related cases, many of these are

frivolous to be dispensed summarily.

To be sure, Texas remains concerned about frivolous

lawsuits brought by inmates. Convicts in prisons, however,

will always find other bases for bringing junk lawsuits. The

free exercise rights of millions of Texans, in any event,

should not be held hostage to a few dozen convicts looking

for excuses to bring a lawsuit.*

Furthermore, Texas notes that RFRA, by reestablishing

the compelling state interest/least restrictive means test,

preserves the ability of Texas to administer its prison

program in a way that will ensure that the health and safety

of prison officials and convicts will be protected. Strict

scrutiny in the prison context will not be “fatal” scrutiny in

fact.’

Lastly, it is critical to note that RFRA does not present

an absolute bar to the application of state and local

governmental regulations and law to religious entities. It

only reestablishes the strict scrutiny test ante Employment

Division v. Smith. As _ noted earlier, under RFRA,

governmental regulations that apply to religious entities must

serve a compelling purpose and be found to use the least

restrictive means to accomplish their purpose.

Regulations that are at the core of governmental

legislation such as building codes, electrical codes, plumbing

codes, health codes, and traffic regulations are not a fortiori

invalid under the standard. These type of regulations by their

very nature and relation to public safety may be found by the

courts to serve a compelling public interest.

* Texas obviously acknowledges that there may be legitimate bases for

incarcerated individuals bringing RFRA-based lawsuits.

* See Adarand Constructors, Inc. v. Pena, 515 U.S. gs BOD a

2097, 2118 (1995).

il eeeteteteetene inane ieee

Local governments can also generally show a

compelling interest for other regulations that implicate health

and safety concerns such as setback requirements that allow

public access to properties in case of emergencies. See City

of Corpus Christi v. Unitarian Church of Corpus Christi, 436

S.W.2d 923 (Tex.Civ.App.--Corpus Christi 1968, writ. ref'd

n.r.e.).

In sum, it is important to recognize that this Court has

“dispel{led] the notion that strict scrutiny is ‘strict in theory,

but fatal in fact.’ [Fullilove v. Klutznick, 448 U.S. 448, 519

100 S.Ct. 2758 (1980)(MARSHALL, J., concurring in

judgment)].” Adarand Constructors, Inc. v. Pena, 515 U.S.

at___, 115 S.Ct. 2097, 2117.

I, THE FEDERALISM FRAMEWORK: THE

TEXT AND STRUCTURE OF THE

CONSTITUTION, AS AMENDED BY THE

TENTH AMENDMENT, ESTABLISH THE

APPROPRIATE BALANCE BETWEEN THE

FEDERAL AND STATE GOVERNMENTS.

The question with respect to the appropriate balance of

power between the states and the federal government is “as

old as the Constitution.” New York v. United States, 505 U.S.

144, 148, 112 S.Ct. 2408, 2414 (1992). The United States is

a government of limited, enumerated powers. United States

v. Lopez, 514U.S.__, __, 115 S.Ct. 1624, 1626 (1995).

See U.S. ConsT., ART I. § 8.

On the other hand, the myriad rights and powers of

the states are preserved textually by the Tenth Amendment”

The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are

reserved to the States respectively, or to the people.

and the Guarantee Clause,'' as well as embedded in the

structure of the Constitution.’ By constituting a federal

government of limited powers, while reserving “the powers

not delegated to the United States, nor prohibited by it” to

the states and the people, the Constitution establishes a

framework in which the states retain “substantial sovereign

authority.” Gregory v. Ashcroft, 501 U.S. 452, 457, 111

S.Ct. 2395, 2399 (1991). See Oregon v. Mitchell, 400 U.S.

112, 201, 91 S.Ct. 260, 303 (1970)(HARLAN, J.)(“When the

Constitution with its original Amendments came into being,

the States delegated some of the sovereign powers to the

Federal Government, surrendered other powers, and expressly

retained all powers not delegated or surrendered. Amdt. X.”)

In New York v. United States 505 U.S. at 156, 112

S.Ct. at 2417, the Court set forth the significance of the

Tenth Amendment:

If a power is delegated to Congress in the

Constitution, the Tenth Amendment expressly

disclaims any reservation of that power to the

States; if a power is an attribute of state

sovereignty reserved by the Tenth

Amendment, it is necessarily a power the

Constitution has not conferred on Congress.

In New York v. United States, the Court struck down a

provision of the Low-Level Radioactive Waste Policy

Amendments Act of 1985,'' because the provision

'' U.S. CONST. art. IV, § 4 (the “Guarantee Clause”), provides that “The

United States shall guarantee to every State in this Union a Republican

Form of Government... .”

See Nevada v. Hall, 440 U.S. 410, 433, 99 S.Ct. 1182, 1194 (1979)

(REHNQUIST, J., joined by BURGER, C.J., dissenting).

3 Pub. L. No. 99-240, 99 Stat. 1842 (codified at 42 U.S.C. §

2021b( 1988).

commanded states either to enact laws regulating the disposal

of low-level radioactive waste or to take title to all low-level

radioactive waste generated within their borders.

The Court in New York distinguished firmly between

Congressional power “to pass laws requiring or prohibiting

certain acts” by private parties and congressional attempts “to

compel the States to require or prohibit those acts.” New

York, 505 U.S. at 166, 112 S.Ct. at 2423." Congress does

not have the power to compel state governments to do certain

things or to take certain actions. Congress, furthermore,

cannot commandeer state governmental power to act in lieu

of the federal government. While those propositions should

have been self-evident for some time, they were not clearly

reaffirmed until the New York case.

The Guarantee Clause furthermore ensures that state

governments are held accountable to the citizens of the

respective states with respect to fundamental decisions about

how to allocate, control, and use resources and define,

maintain, protect, or regulate the rights and powers of its

citizens.'° The essence of a “republican form” of government

is a Close fit between the choices and desires of citizens and

the actions and decisions of the officials they elect. That is,

the accountability of elected officials to the electorate is the

sine qua non of a republican form of government.

'* Deborah Jones Meritt, Republican Governments and Autonomous

States: A New Role for the Guarantee Clause, 65 UNIV. OF COLO. L. REV.

815, 818 (1994).

'S In Federal Energy Regulatory Commission v. Mississippi, 456 U.S.

742,761, 102 S.Ct. 2126, 2138 (1982), the Supreme Court acknowledged

that “the authority to make . . . fundamental . . . decisions is perhaps the

quintessential attribute of sovereignty. [citation omitted]. FERC 456 U.S.

at 761, 102 S.Ct. at 2138. The Court stated further: Indeed, having the

power to make decisions and to set policy is what gives the State its

sovereign nature. [citation omitted]. /d.

Federal mandates, whether from Congress in the form

of legislative enactments or decreed by administrative fiat in

the form of agency action, may sever the link between the

citizens of a state and their elected officials. If the federal

government does sever that link, then the federal government

not only has failed its constitutional duty to protect the states’

republican form of government, it has necessarily impinged

upon the states’ right to a “republican form” of government

guaranteed by the Constitution.

The vitality of the Guarantee Clause in bolstering the

Federalism Framework (described supra) was renewed in

New York, in which the Court acknowledged that the

Guarantee Clause could be used to protect states from an

over-intrusive federal government. New York, 515 U.S. at

182-183, 112 S.Ct. at 2432-33. Actions brought by states to

protect their sovereignty and which allege violations of the

Guarantee Clause cases are justiciable. See Reynolds v. Sims,

377 U.S. 533, 582, 84 S.Ct. 1362, 1392 (1964) (“some [not

all] questions raised under the Guaranty Clause are

nonjusticiable.”)(emphasis added).

The reinvigoration of the Guarantee Clause, and

whether it is enforceable has recently been the subject of

much academic discourse. See Jesse H. Choper,

Observations on the Guarantee Clause - As Thoughtfully

Addressed by Justice Linde and Professor Eule, 65 UNIV. OF

Coo. L. REv. 741 (1994); Akhil Reed Amar, The Central

Meaning of Republican Government: Popular Sovereignty,

Majority Rule, and the Denominator Problem, 65 UNiv. OF

CoLo. L. REV. 749 (1994); Deborah Jones Merritt,

Republican Governments and Autonomous States: A New

Role for the Guarantee Clause, 65 UNIV. OF COLO..L. REV.

815 (1994); Erwin Chemerinsky, Cases Under the

Guarantee Clause Should Be Justiciable, 65 UNiv. OF COLO.

L. REV. 849 (1994); Louise Weinberg, Political Questions

and the Guarantee Clause, 65 UNiv. OF COLO. L. REV. 887

(1994).

Il. THe ULTIMATE OBJECTIVE OF THE

FEDERALISM FRAMEWORK: PROTECTING

THE FUNDAMENTAL RIGHTS AND POWERS

OF CITIZENS.

It is critical to note that preserving the Federalism

Framework as described supra is not simply an abstract

“states’ rights” goal. Rather, as the Court has recognized, the

Federalism Framework protects the fundamental rights and

powers of citizens. “This constitutionally mandated division

of authority ‘was adopted by the Framers to ensure protection

of our fundamental liberties.’ Gregory v. Ashcroft, 501 U.S.

452, 458, 111 S.Ct. 2395, 2400 (1991).” United States v.

Lopez, 514 U.S. at 1626.

In Gregory, the Court stated:

“Perhaps the principal benefit of the federalist

system is a check on the abuses of

government power. . . . Just as the separation

and independence of the coordinate branches

of the Federal Government serves to prevent

the accumulation of excessive power in any

one Branch, a healthy balance of power

between the States and the Federal

Government will reduce the risk of tyranny

and abuse from either front.”"°

And in New York v. United States, 505 U.S. at 181,

112 S.Ct. at 2431 (citations and quotation marks omitted)

(emphasis added), the court stated:

The Constitution does not protect the

sovereignty of the States . . . or state

governments as abstract political entities, or

'© Gregory at 458. The Court relied heavily upon Nos. 28 (Hamilton)

and 51 (Madison) of THE FEDERALIST (C. Rossiter, ed. 1961).

even for the benefit of the public officials

governing the States. To the contrary, the

Constitution divides authority between federal

and state governments for the protection of

individuals. State sovereignty is not just an

end in itself. “Rather, federalism secures to

citizens the liberties that derive from the

diffusion of sovereign power.” [citation

omitted].

Furthermore, as noted by Justice Blackmun in

Coleman v. Thompson, 501 U.S. 722, 760-761, 111 S. Ct.

2546, 2570 (1991) (1991)(BLACKMUN, J. dissenting):

. . . [F]ederalism secures to citizens the

liberties that derive from the diffusion of

sovereign power. Federalism is a device for

realizing the concepts of decency and fairness

which are among the fundamental principles

of liberty and justice lying at the base of all

our civil and political institutions.’ (quoting

William J. Brennan, Jr., Federal Habeas

Corpus and State Prisoners: An Exercise in

Federalism, 7 UTAH L. REV. 423, 442

(1961)).

Moreover, with regard to the Guarantee Clause,

although the promise of the Guarantee Clause appears on its

face to flow to the states qua the states, the Court has stated

that the beneficiaries of the guarantee are the people. Texas

v. United States, 74 U.S.(7 Wall.) 700 (1869). See Louise

Weinberg, Political Questions and the Guarantee Clause,

65 UNIV. OF COLo. L. REV. 887, 920 (1994).

Ill. THE FOURTEENTH AMENDMENT WAS

INTENDED TO ADVANCE THE ULTIMATE

OBJECTIVE OF FEDERALISM .

The Federalism Framework protects the rights and

liberties of our citizens by ensuring the appropriate balance

of power between the state and federal governments.

Against the original framework of the Constitution

(including the Guarantee Clause) and the Bill of Rights

(including the Tenth Amendment), as well as against the

backdrop of the Civil War, the Fourteenth Amendment

fundamentally altered the balance between the federal and

state governments. Seminole Tribe of Florida v. Florida,

116 S.Ct. 1114, 1125 (1996); City of Richmond v. J.A.

Croson Co., 488 U.S. 469, 490, 109 S.Ct. 706, 720 (1989);

Fitzpatrick v. Blitzer, 427 U.S. 445, 455, 96 S.Ct. 2666,

2671 (1976). This alteration, nonetheless, was meant to

provide more protection for fundamental liberties and rights

of our citizens. From this perspective, the Fourteenth

Amendment furthers the ultimate objective of federalism.

The Fourteenth Amendment “contained prohibitions

expressly directed at the States and § 5 of the Amendment

expressly provided that ‘The Congress shall have the power

to enforce, by appropriate legislation, the provisions of this

article’ [citation omitted].” Seminole Tribe at 1125."

Indeed, the Court has stated that the Fourteenth Amendment

was one of three constitutional amendments" that “were

specifically designed as an expansion of federal power and

'7 The Court went on to state: “[T]hat through the Fourteenth

Amendment, federal power extended to intrude upon the province of the

Eleventh Amendment and therefore that § 5 of the Fourteenth

Amendment allowed Congress to abrogate the immunity from suit

guaranteed by that Amendment.” Seminole at 1125.

'8 The others being the Thirteenth and Fifteenth Amendments.

an intrusion on state sovereignty.” City of Rome v. United

States, 446 U.S. 156, 179, 100 S.Ct. 1548, 1563 (1980).

While RFRA was putatively enacted pursuant to the

Fourteenth Amendment," Congress did not expressly state

in the act itself that it was acting pursuant to that

constitutional provision. That is unfortunate, but not fatally

defective to the legislation. See EEOC v. Wyoming, 460

U.S. 226, 243 n.18, 103 S.Ct. 1054, 1064 n.18 (1983)

(legislation enacted pursuant to Congress’ Section 5

authority is valid if the court can “discern some legislative

purpose or factual predicate that supports the exercise of the

power.”); see also Fullilove v. Klutznick, 448 U.S. 448,

477, 100 S.Ct. 2758, 2774 (1980) (plurality).

While the Court has fortunately (from the state

perspective) been moving toward “plain statement” or “clear

'9 While the text of RFRA does not formally set forth the ostensible

power being relied upon by Congress to enact RFRA, RFRA’s legislative

history indicates that Congress relied upon the Fourteenth Amendment to

enact RFRA. _ S. Rep. No.I11, 103d Cong., Ist Sess., 13-14 (1993),

reprinted in 1993 U.S.C.A.A.N. 1892; H.R. No. 88, 103d Cong., Ist Sess.

9 (1993).

20 ‘See United States v. Lopez, 514 US. at __, 115 S.Ct. at 1631-1632,

with respect to whether certain activities affected interstate commerce, the

Court stated:

We agree with the Government that Congress

normally is not required to make formal findings as

to the substantial burdens that an activity has on

interstate commerce. [citations omitted.] But to the

extent that congressional findings would enable us to

evaluate the legislative judgment that the activity in

question substantially affected interstate commerce,

even though no such substantial effect was visible to

the naked eye, they are lacking here.

statement” rules in a number of contexts” in order to

ensure, inter alia, political accountability of the federal

government, there appears to be no requirement at this time

that Congress must clearly set forth the basis of its power

to enact certain legislation in the legislation itself.

IV. DesPire THE ULTIMATE OBJECTIVE

OF THE FOURTEENTH AMENDMENT TO

PROTECT FUNDAMENTAL RIGHTS AND

POWERS OF OUR CITIZENS, IT DoES NOT

PROVIDE CARTE BLANCHE TO THE

FEDERAL GOVERNMENT TO RUN

ROUGHSHOD OVER STATE AND LOCAL

GOVERNMENTS.

While the Fourteenth Amendment clearly readjusted

the balance of power between state governments and the

federal government,” the Court has recognized that the

21 See Gregory v. Ashcroft, 501 U.S. 452, 460-461, 111 S.Ct. 2395,

2401 (1991)(“We explained recently: ‘[I}f Congress intends to alter the

‘usual constitutional balance between the States and the Federal

Government,’ it must [do so] ‘unmistakably clear in the language of the

statute.’ Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242, [105

S.Ct. 3412, 3147, 87 L.Ed. 2d 171] (1995); see also Pennhurst State

School and Hospital v. Halderman, 465 US. 89, 99 [104 S.Ct. 900, 907,

79 L.Ed. 2d 67] (1984).”).

With respect to Eleventh Amendment state sovereignty

abrogation issues, the Court has declared that “Congress’ intent to

abrogate the States’ immunity from suit must be obvious from ‘a clear

legislative statement.’ [Blatchford v. Native Village of Noatak, 50\ U.S.

775, 786, 111 S.Ct. 2578, 2584 (1991)].” Seminole Tribe of Florida v.

Florida, 116 S.Ct. at 1123.

22 Actually, the Fourteenth Amendment specifically expanded the power

of Congress. “It is not said [in section 5 of the Fourteenth Amendment]

the judicial power of the general government shall extend to enforcing the

prohibitions and to protecting the rights and immunities guaranteed . . .

Fourteenth Amendment does not override all principles of

federalism. Gregory v. Ashcroft, 501 U.S. 452, 468, 111

S.Ct. 2395, 2405 (1991). As the Court stated: “[T}his

Court has never held that the [Fourteenth] Amendment may

be applied in complete disregard for a State’s constitutional

powers.” /d.

In Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260

(1970), Justice Black explained that Congress’ enforcement

power under Section 5 of the Fourteenth Amendment, while

broad, is not unlimited and set forth a three-part test for

analyzing the power of Congress under the Fourteenth

Amendment:

As broad as the congressional enforcement

power is, it is not unlimited. Specifically,

there are at least three limitations upon

Congress’ power to enforce the guarantees

of the Civil War Amendments. First,

Congress may not by legislation repeal

other provisions of the Constitution.

Second, the power granted to Congress was

not intended to strip the States of their

power to govern themselves or to convert

our national government of enumerated

powers into a central government of

unrestrained authority over every inch of

the whole Nation. Third, Congress may

only ‘enforce’ the provisions of the

amendments and may do so only by

‘appropriate legislation.’

Id. at 128-29, 91 S.Ct. at 266-267 (opinion of BLACK, J.).

See also State of South Carolina v. Katzenbach, 383 U.S.

301, 325, 86 S.Ct. 803, 816-817 (1966).

It is the power of Congress which has been enlarged.” Ex parte Virginia,

100 U.S. 339, 345, 25 L.Ed. 676 (1879\emphasis added in part).

In Katzenbach v. Morgan, 384 U.S. 641, 651, 86

S.Ct. 1717, 1723-1724 (1966), the Court had set forth a

simpler two-part test. As described in City of Rome, 446

U.S. at 176, 100 S.Ct. at 1561:

In [Katzenbach], the Court held that

legislation enacted under authority of § 5 of

the Fourteenth Amendment would be upheld

so long as the Court could find that the

enactment [1] ‘is plainly adapted to [the]

end’ of enforcing the Equal Protection

Clause and [2] ‘is not prohibited by but is

consistent with ‘the letter and spirit of the

constitution,’. . . (quoting McCulloch v.

Maryland, [4 Wheat. 316, 421, 4 L.Ed. 579

(1819)}.

In this case, the Fifth Circuit Court of Appeals

appropriately adopted the Morgan/Mitchell analysis in order

to evaluate whether Congress had the constitutional

authority to enact RFRA, aimed as it is at enforcing § 5 of

the Fourteenth Amendment. P.F. Flores v. City of Boerne,

Texas, 73 F.3d 1352, 1358 (Sth Cir. 1996). In analyzing

whether legislation, such as RFRA, ostensibly passed

pursuant to the Fourteenth Amendment, is constitutional, the

Court must consider the following factors:

(1) First, the statute under consideration

must be “‘regarded’ as an enactment to

enforce the Fourteenth Amendment”;

(2) Second, the statute must be “plainly

adapted” to enforce the Amendment. /d. at

1359; and

(3) Finally, the statute must be “consistent

‘with the letter and = spirit of the

constitution.”” Jd. at 1361.

An analysis of RFRA indicates that the statute does

not fail any of the parts of the Morgan/Mitchell factors.

V. BECAUSE RFRA Is CONSISTENT WITH

THE FEDERALISM FRAMEWORK, AS WELL

AS WITH THE ULTIMATE OBJECTIVE OF

THE FEDERALISM FRAMEWORK, RFRA IS

CONSISTENT WITH THE LETTER AND SPIRIT

OF THE CONSTITUTION WITH REGARD TO

FEDERALISM ISSUES.

According to the legislative history of RFRA, RFRA

was passed pursuant to the Fourteenth Amendment.”

Assuming arguendo that RFRA, furthermore, is “plainly

adapted” to meet the purposes of the Fourteenth

Amendment, there remains only the issue of whether RFRA

“is not prohibited by but is consistent with the ‘letter and

spirit of the constitution.’” City of Rome, 446 U.S. at 176,

100 S.Ct. at 1561 (quoting McCulloch v. Maryland at

421).*

More specifically, the appropriate inquiry with respect

to the federalism issues in this case is whether RFRA

violates any textual provision of the Constitution or the

inherent structure of the Constitution as described in Section

1, supra. The inquiry into the issue whether Congress has

the authority (vis a vis the states) under the Fourteenth

Amendment to enact RFRA is the “mirror image” of the

issue whether certain sovereignty rights and powers of the

states have been impinged upon by Congress in enacting

RFRA. See New York, 505 U.S. at 156, 112 S.Ct. at 2417.

3 See fn. 4 supra.

It is to be noted that Texas does not take a position as to whether

RFRA violates separation of powers principles at the federal level.

Petitioner argues strenuously that the limits on the

federal government flowing from the Federalism Framework

described supra:

. are transgressed by RFRA. Tests of

compelling interest and least restrictive means

dramatically skew the vatance of power

between local governments an:d churches on

land use issues, including historical

preservation, to the detriment of this

traditional area of local autonomy. See Cert.

Pet. at 6-7. In the end, RFRA tips “the scales

too far” in favor of the federal government

and in derogation of the states. [citations

omitted]. Brief of Petitioner at 45.

RFRA, however, does not transgress textual or

structural limits on the federal government contained in the

Constitution. Indeed, RFRA, because it is intended to

protect a fundamental right or liberty of our citizens, can be

characterized as fulfilling the ultimate objective of the

Federalism Framework as described supra.

A. There Are No State or Local Government Interests

That Are Needlessly, or Unconstitutionally Sacrificed by

RFRA.

RFRA appears to implicate two sets of issues

impacting on appropriate federalism, or rather on the

appropriate balance between state and federal governments.

1. State and Local Governments’ Right

and Power to Protect, Maintain, and

Regulate Property.

There is little doubt that, with regard to protecting

citizens’ property and self-governing rights and powers, state

and local governments are responsible and “charged” under

the Federalism Framework with enacting, maintaining, and

enforcing laws that protect and regulate property.

“Property interests, of course, are not created by the

Constitution,’ but rather ‘by existing rules or understandings

that stem from an independent source such as state law.’

Board of Regents of State Colleges v. Roth, 408 U.S. 574,

577, 92 S. Ct. 2701, 2709, 33 L.Ed. 548 (1972). [other

citations omitted].” Delaware v. New York, 507 U.S. 490,

501-502, 113 S. Ct. 1550, 1557 (1993).

Furthermore, pursuant to the police power reserved to

the states and protected by the Constitution, state and local

governments are particularly responsible and entitled to enact,

maintain, and enforce laws governing the use of land, water,

and resources such as laws regarding zoning, including zoning

to protect historical structures, and land use planning.” There

is much interplay between these two sets of powers reserved to

*S Real property law, furthermore, has been recognized by the Court as

a matter of special concer to the states. Fidelity Federal Savings & Loan

Association v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022

(1982).

provisions. . . are peculiarly within the province of state and local

legislative authorities.” Warth v. Seldin, 422 U.S. 490, 509 n.18, 95 S.Ct.

2197, 2210, n.18 (1975). And with regard to land use planning, this

Court has stated: “[T]he authority of state and local governments to

engage in land use planning has been sustained against constitutional

challenge as long ago as our decision in Euclid v. Ambler Reality Co.,

272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926).” Dolan v. City of

Tigard, 114 S.Ct. 2309, 2317 (1994).

indeed, the Court has recognized that the states’ land use

planning powers are formidable even as against the federal government.

in California Coastal Commission v. Granite Rock Company, 480 U.S.

572, 593, 107 S.Ct. 1419, 1431 (1987), the Court stated: “[T]he Property

Clause gives Congress plenary power over the federal land at issue;

however, even within the sphere of the Property Clause, state law [/.e.,

the state land use planning law at issue] is preempted only when it

conflicts with the operation or objectives of federal law, or when

Congress ‘evidences an intent to occupy a given field.’ [citation

omitted].”

state and local government. But RFRA does not impinge upon

these two important powers of state and local governments.

Nothing in RFRA commands states to do anything with

regard to defining, maintaining, or protecting property rights.

Nothing in RFRA diminishes the powers of state and local

government with respect to defining, maintaining, or regulating

property.

Nothing in RFRA, moreover, commands states or local

governments to zone, regulate, or manage land or other

resources in certain ways. And, finally, nothing in RFRA

“commandeers” or “hijacks” state or local government

processes with respect to regulating the use of property.

To be sure, any governmental action (by any level of

government, including the federal government) regarding the

definition, use, or regulation of property must be done in

accordance with the First Amendment, but that has been

required since the enactment of the Constitution and the Bill of

Rights.

2. Ensuring Accountability Between

Governmental Officials and Citizens.

The Federalism Framework serves as a bulwark against

an encroaching federal government intent on accomplishing

objectives by turning state and local governments into “field

offices” of the national government. “. . . Congress may not

simply ‘commandee[r] the legislative processes of the States by

directly compelling them to enact and enforce a federal

” “State legislative and administrative bodies are not field offices of the

national bureaucracy. Nor are they think tanks to which Congress may

assign problems for extended study. Instead, each State is sovereign

within its own domain, governing its citizens and providing for their

general welfare. While the Constitution and federal statutes define the

boundaries of that domain, they do not harness state power for national

purposes.” FERC, 456 U.S. at 777, 102 S.Ct. at 2147 (O’CONNOR, J.,

BURGER, C.J., REHNQUIST, J., dissenting).

regulatory program.’ Hodel v. Virginia Surface Mining &

Reclamation Assn., Inc., 452 U.S. 264, 288, 101 S. Ct. 2352,

2366, 69 L.Ed.2d 1 (1981).” New York, 505 U.S. at 161, 112

S.Ct at 2420.% The danger avoided by ensuring that state and

local governments do not become “field offices” of the national

government is the danger that accountability between

governmental officials and our citizens will be lost. New

York, 505 U.S. at 168-169, 112 S.Ct. at 2424.

But, again, RFRA commandeers nothing. It only

mandates solicitude for our churches and their members’

worship by our state and local governments as they undertake

action that affects churches and their members. Our state and

local governments did not grind to a halt when they had to

meet the strict scrutiny test before 1990 and the Employment

Division v. Smith decision, and there is no reason to believe

that they will grind to a halt now because of RFRA.

RFRA does not decree that state and local governments

expend funds, political goodwill, or administrative program

resources in the pursuit of a federal objective or program.

RFRA simply ensures that our citizens right to worship will

only be sacrificed for a compelling interest and only if the least

restrictive means to achieve that compelling interest are chosen.

As stated by Judge Posner in Sasnett v. Sullivan, 91 F.3d 1018,

1022 (7th Cir. 1996):

** The Court went on to state:

While Congress has substantial powers to govern

the Nation directly, including in areas of intimate

concern to the States, the Constitution has never

been understood to confer upon Congress the ability

to require the States to govern according to

Congress’ instructions.

New York, 505 U.S. at 161; 112 S.Ct. at 2420.

[RFRA] does not impose substantial direct

costs on the states... because it makes an

exception for regulations that are necessary to

the furtherance of compelling state interests. It

does not enlist state officials as federal

functionaries. It does not make the states

dance to a federal tune beyond requiring them

to accord a limited measure of protection to

religious interests that may not be represented

in the politics of the state.

CONCLUSION

In order to protect the property and associated rights of

our citizens on one hand and to ensure that any regulation and

protection of that property is done in accord with the will of

the citizenry, and in order to ensure accountability of

governmental officials to the electorate, the Constitution has

established a balance by which state and local governments act

as barrier against a distant federal government which may

inadvertently or purposefully overreach and diminish the rights

and powers of citizen. When, however, that federal

government “ratchets up” protection for the fundamental rights

of our citizens, as Congress did in this case, the concern about

an overreaching, distant government dissipates and concerns

about appropriate federalism evaporate.

The Court should rule that RFRA does not violate

essential notions on tenets of federalism.

DAN MORALES

Attorney General of Texas

JORGE VEGA

First Assistant Attorney General

SAMUEL W. GOODHOPE

Special Assistant Attorney General

JAVIER AGUILAR

Special Assistant Attorney General

January 10, 1997

P. O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 475-4679

Fax: (512) 463-2063

Counsel for Amicus Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.