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Houston Law Review




The First Amendment of the United States Constitution, made applicable to the states through the Fourteenth Amendment, protects a person's right to the free exercise of religion. This protection, however, fails to provide a framework with which to reconcile the freedom of religious conduct with the need for government to regulate conduct. All three branches of government, as created in the Constitution, create and refine this framework. Traditionally, the judiciary has been the final interpreter of the Constitution and, in this capacity, has defined the powers of the other branches of government. For example, the Supreme Court has interpreted Congress's enforcement power under Section Five of the Fourteenth Amendment to be a remedial one, but at the same time broadened its scope to the degree that Congress could justify stepping into a judicial role for the sake of religious freedom.

To that end, Congress enacted the Religious Freedom Restoration Act of 1993 ("RFRA") in order to codify a strict scrutiny test for free exercise cases. RFRA represents Congress's response to the Court's decision in Employment Division, Department of Human Resources of Oregon v. Smith, in which the Court concluded that the First Amendment did not relieve individuals from complying with neutral and generally applicable laws that, in effect, infringed upon religious practices. In its 1997 decision in City of Boerne v. Flores, the Court responded to the passage of RFRA and addressed whether Congress has an affirmative power to preserve the rights guaranteed by the First Amendment. The Court confronted Congress, fighting back with one of the cornerstone principles of Marbury v. Madison, that "[ilt is emphatically the province and duty of the judicial department to say what the law is." The Court concluded that RFRA was unconstitutional because Congress's enforcement power under Section Five of the Fourteenth Amendment is solely remedial.

This Note contends that Flores has significant implications for the future balance of power between the judiciary and legislative branches, as well as for the future of free exercise of religion. First, it discusses the history of the Court's decisions on the right to free exercise, culminating in its decision in Smith as the catalyst that encouraged Congress to enact RFRA. A closer look into Smith will shed light on the future of free exercise. Moreover, a historical look into the judicial treatment of legislative enforcement power will also explain how Congress gathered the ammunition to pass such a law.

Part II provides a summary of the facts and opinions that comprise Flores. Part III analyzes the history of both the Free Exercise Clause and Congress's enforcement power-two subjects that set the stage for, and independently animated the opinions in Flores. It also discusses the Court's assertion of its role as the final interpreter of the Constitution and its need to define the boundaries of congressional remedial power. Finally, Part III explains the significance of Flores as to the separation of powers and federalism doctrines. While setting limits on congressional enforcement power, Flores also significantly affects the future of the free exercise clause. Flores clearly reasserts that Smith is the law on free exercise. In so doing, however, it left untouched the eventuality that the Court may need to revisit the issue in cases of neutral, generally applicable laws.

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University of Houston Law Center

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