Boerne City V. Flores (1997): 1st a. Free exercise V. 14th a. Legislative authority

• In 1990 (Employment Div, DHR v. Smith), a closely divided court held that in the context of criminal statutes, a regulation of conduct that is neutral on its face that incidentally inhibits a religious practice is not subject to a stringent constitutional standard (under 1^st A.). Congress responded in 1993 (under Morgan power of “remedial interpretation”) with the Religious Freedom Restoration Act (RFRA). Under RFRA, facially neutral laws that “substantially burden a person’s exercise of religion” are legal only if the Government demonstrates “that application of the burden to the person” is “in furtherance of a compelling governmental interest.” Congress relied on the power of the FREE EXERCISE CLAUSE of the 14^th A.

• Majority: KENNEDY: The Court declared the RFRA unconstitutional, and says that the power of FREE EXERCISE extend only to enforcing the provisions of the 14^th A. The Court has described this power as “remedial” (South Carolina v. Katzenbach), as opposed to the “substantive” authority of the 14^th A. “Legislation which alters the meaning of Free Exercise Clause cannot be said to be enforcing the Clause.

• Dissent: O’CONNOR, BREYER, SOUTER: All agree that RFRA is unconstitutional under Smith, and argue for Smith to be reconsidered.

Jones V. Mayer Co. (1968): 13th Amendment, Equal Housing

• Jones, black, says Mayer refused to sell him a home because of race. He relied on 42 USC 1982, which provides that all citizens “shall have the same right, in every state as is enjoyed by white citizens.” There was a question if that applied to private people or just to the States.

• Majority: STEWART: The 13^th A. allowed the court to pass the 1866 legislation that prohibited racially motivated refusals to sell or rent property. The 13^th A. forbade not only slavery, but also “the badges and incidents of slavery”. Congress may prohibit both state action and private action that restrict the right of blacks to purchase, lease, and use property. (a year later the court would say that questions of fair housing may not be put up for a vote of approval.)

Garcia V. San Antonio Metro Transit Auth. (1985) 10th a., Federalism

• The Federalism doctrine of Nat. League of Cities v. Usery (1976) rested on a narrow 5-4 decision, with BLACKMUN supplying the 5^th vote. The doctrine was the first to halt the trend of a stronger national government. Through the use of the commerce clause, and tried to distinguish between “TRADITIONAL” and “NONTRADITIONAL” government functions, which cause confusion in the courts. Now, ten years later, BLACKMUN changes his mind, and decides the doctrine is “unworkable” and “inconsistent with the established principles of FEDERALISM. By switching sides, the doctrine was overturned by another 5-4 vote. This case deals with the Fair Labor Standards Act, because SAMTA was not in compliance.

• Majority: BLACKMUN: the opinion points to the difficulty lower courts have had in deciding what is “TRADITIONAL” and “NONTRADITIONAL” functions of Government. Blackmun decided that the protection of FEDERALISM should be left to the political process of Congress

• Dissent: REHNQUIST, O’CONNOR, POWELL, BURGER: The sharp dissents imply that, in time, they may form a new majority and overturn Garcia.

• Since Garcia, Rehnquist has been elevated to Chief Justice, and Scalia, Kennedy, Souter, Thomas and Ginsburg have been added to the court. The “numbers” to overturn Garcia are apparently there, but reversing Garcia and reviving National League would only highlight the political nature of the Court, giving the public a clear view the Court’s reading of the Constitution is little more than the temporary reflections of who sits on the court at any particular time. Despite the return to favoring the Federal Gov., the previously forgotten about 10^th A. is still used to protect state’s rights.