About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

83 Iowa L. Rev. 391 (1997-1998)
Federalism, Separation of Powers, and the Demise of the Religious Freedom Restoration Act

handle is hein.journals/ilr83 and id is 403 raw text is: An Essay on Federalism, Separation of Powers, and the Demise of the Religious Freedom Restoration Act William G. Buss* I. INTRODUCTION City of Boerne v. Flores,' perfectly illustrates how the simplest of human conflicts can raise enormously important and intertwined constitutional issues. St. Peter Catholic Church (the Church) in Boerne, Texas, wanted to expand its facilities, which it believed were overcrowded.- The Church was denied a building permit because it was located in the historic district of the City of Boerne (the City), as the City thought the expansion plans would fail to preserve a building of historical importance to the community. Thus, at its most immediate level, this case involved a collision between the Church's building desires and the City's zoning laws. But, by frustrating its wishes, the Church argued, the City was prohibiting the free exercise of religion, expressly protected by the First Amendment and incorporated in the Due Process Clause of the Fourteenth Amendment.' Under an opposing view, singling out the Church's building application for specially favorable treatment because it furthered a religious purpose would have amounted to an establishment of religion, forbidden by the First Amendment and also incorporated in the Fourteenth Amendment's Due Process Clause.5 Under the Supreme Court's most relevant precedent,6 neither of these as-applied arguments * O.K. Patton Professor of Law. I want to thank Professors Patrick B. Bauer, Randall P. Bezanson, Arthur E. Bonfield, and Barry Matsumoto for their helpful comments on an earlier draft, and I want to acknowledge the valuable assistance of several students at the Iowa College of Law, Aaron Dixon, Arlene Fitzpatrick, Dorothy Marsh, and Derek Mays. 1. 117 S. Ct. 2157 (1997). 2. Id. at 2160. 3. Id. 4. Id. at 2163. Although only the First Amendment contains a Free Exercise Clause, and that Clause prohibits only Congress from prohibiting the free exercise of religion, it has long been established that the free exercise of religion is a form of liberty which the Fourteenth Amendment guarantees every person against deprivations without due process of law. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). 5. See Everson v. Board of Educ., 330 US. 1 (1947) (holding that the Establishment Clause is incorporated by the Due Process Clause of the Fourteenth Amendment). 6. Employment Div. v. Smith, 494 U.S. 872 (1990).

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most