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

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).

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