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                  THE UNITED STATES DISTRICT COURT
                 FOR THE WESTERN DISTRICT OF TEXAS
                       SAN ANTONIO DIVISION

P.F. FLORES, ARCHBISHOP OF
SAN ANTONIO
                                              SA-94-CA-0421
v.

THE CITY OF BOERNE

     BEFORE THE COURT, in the above-captioned cause of action, is

the special issue raised by Defendant, the City of Boerne, in

which Defendant challenges the constitutionality of the recently

passed Religious Freedom Restoration Act, 42 U.S.C. § 2000bb

[herinafter RFRA].

                             BACKGROUND

     The United States Congress passed RFRA in early November of

1993 and it was signed by President Clinton on November l6, 1993.

     RFRA sets out in pertinent part:

     SEC. 3. FREE EXECISE OF RELIGION PROTECTED.
          (a) IN GENERAL, -- Government shall not substantially
     burden a person's exercise of religion even if the burden
     results from a rule of general applicability, except as
     provided in subsection (b).

          (b) EXCEPTION. -- Government may substantially burden
     a person's exercise of religion only if it demonstrates that
     application of the burden to the person -

               (1) is in furtherance of a compelling governmental
          interest; and

               (2) is the least restrictive means of furthering
          that compelling governmental interest.

     (emphasis supplied).

     Such an Act under normal circumstances would be readily

enforceable by this Court; however, it has come to the Court's

attention that thes Act seeks to overturn an interpretation of

the United States Constitution by the Supreme Court.  Indeed, in

the Congressional Findings and Declaration of Purposes, the

Congress specifically sought to create a heightened burden of

proof standard from that held in Employment Division v. Smith,

494 U.S. 872 (1990).  The Findings state in pertinent part:

     (1) the framers of the Constitution, recognizing free
     exercise of religion as an unalienable right, secured
     its protection in the First Amendment to the
     Constitution . . .

     (4) in Employment Division v. Smith, 494 U.S. 872
     (1990) the Supreme Court virtually eliminated the
     requirement that the government justify burdens on
     religious exercise imposed by laws neutral toward
     religion . . .

     The purposes of this Act are -
          (1) to restore the compelling interest test
     as set forth in Sherbert v. Verner, 374 U.S. 398 (1963)
     and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to
     guarantee its application in all cases where the free
     exercise of religion is substantially burdened . . . .

     On February 2, 1995, the Court was made aware of Defendant's

special issue during a pretrial hearing and agreed to 1) Certify

the Question pursuant to 28 U.S.C. § 2403(a) to the Attorney

General of the United States, and 2) for both parties to submit

briefs addressing the constitutionality of RFRA.  On March 3,

1995, Defendant submitted its brief.  On March 6, 1995, Plaintiff

submitted its reply brief and the Solicitor General agreed to

intervene on behalf of the United States of America, likewise

submitting a reply brief.

                             ANALYSIS

     According to the holding of Marbury v. Madison, "[i]t is

emphatically the province and duty of the judicial department to

say what the law is."  1 Cranch. 137, 2 L.Ed. 60 (1803).

Subsequent Supreme Court cases have echoed this fact:

     Deciding whether a matter has in any measure been
     committed by the Constitution to another branch of
     government, or whether the action of that branch
     exceeds whatever authority has been committed, is
     itself a delicate exercise in constitutional
     interpretation, and is a responsibility of this
     Court as ultimate interpreter of the Constitution.

Baker v. Carr, 369 U.S. 186, 211 (1962).  In United States v.

Nixon, the Court stated:

     Notwithstanding the deference each branch must
     accord the others, the 'judicial power of the
     United States' vested in the federal courts by
     Article III, § 1, of the Constitution can no more
     be shared with the Executive Branch than the Chief
     Executive, for example, can share with the
     judiciary the veto power, or the Congress share
     with the Judiciary the power to override a
     Presidential veto.  Any other conclusion would be
     contrary to the basic concept of separation of
     powers and the checks and balances that flow from
     the scheme of a tripartite government.  The
     Federalist, No. 47, p. 313 (S. Mirrell ed. 1938).
     We therefore reaffirm that it is the province and
     duty of this Court 'to say what the law is . .
     . .'"

418 U.S. 683, 704-05 (1974).

     In this instance, Congress specifically sought to overturn

Supreme Court precedent as found in Employment Division v. Smith

through the passage of RFRA.  The Supreme Court in Smith found

the heightened standard applied in Sherbert v. Verner, 374 U.S.

298 (1963), to be limited over the years to cases within the

unemployment compensation field.  Id. at 884.  The Smith court

added, "[e]ven if we were inclined to breathe into Sherbet some

life beyond the unemployment compensation field, we would not

apply it to require exemptions from a generally applicable law."

Id.  The Court is cognizant of Congress' Authority under Section

5 of the Fourteenth Amendment, yet it is convinced of Congress'

violation of the doctrine of Separation of Powers by intruding on

the power and duty of the judiciary.

     The Court is cautious in its opinion of RFRA's

unconstitutionality as there has been insufficient case law, to

date, construing it.  See Belgard v. State of Hawaii, No. 93-

00961 (D. Haw. Feb. 3, 1995) (holding that RFRA constitutional

pursuant to Congress' enforcement power under Section 5 of the

Fourteenth Amendment). [Footnote 1]  Nevertheless, Smith remains

the law in this area for this Court to follow pursuant to the

doctrine of stare decisis.  The doctrine of stare decisis is not

a universal, inexorable command, especially in cases involving

the interpretation of the United States Constitution.  Planned

Parenthood v. Casey, 505 U.S. ___, 112 S.Ct. 2791, 2861 (1992)

(Rehnquist, J., dissenting).  "Nonetheless, the doctrine of stare

decisis, while perhaps never entirely persuasive on a

constitutional question, is a doctine that demands respect in a

society governed by the rule of law."  City of Akron v. Akron

Center for Reproductive Health, 462 U.S. 416, 419-20 (1983).

     [Footnote 1] This Court seriously questions the District of
Hawaii's interpretation of RFRA's legitimacy through Section 5 of
the Fourteenth Amendment.  RFRA only mentions the First Amendment
as the empowering provision to change the burden of proof
standard to compelling interest.  "Typically, the Court looks to
the language of an Act or its legislative history for guidance on
which power Congress understood itself to be invoking, and for
factual support of its legal determination as to whether the
power was invoked properly.  As applied to federal law, Congress
simply did not enter into such an inquiry regarding RFRA."  Marci
A. Hamilton, The Religious Freedom Restoration Act: Letting the
Fox into the Henhouse Under Cover of Section 5 of the Fourteenth
Amendment, 16 Cardoso L. Rev. 357, 366 (1994).  Furthermore,
because the First Amendment is not an enumerated power of
Congress, but merely a limitation, Katzenbach v. Morgan and its
progeny are inapplicable.  The First Amendment to the
Constitution does not empower Congress to regulate all federal
law in order to achieve religious liberty, unless it is done
pursuant to an enumerated power.  Id. at 363.

                            CONCLUSION

     After reviewing the briefs on file and the law applicable to

this area, the Court is of the opinion RFRA is in violation of

the United States Constitution and Supreme Court precedent by

unconstitutionally changing the burden of proof as established

under Employment Division v. Smith.  Accordingly, the Court is of

the opinion that this order holding RFRA to be unconstitutional

"involves a controlling question of law as to which there is

substantial ground for difference of opinion and that an

immediate appeal from the order may materially advance the

ultimate termination of litigation . . . ."  28 U.S.C. § 1292(b).

Furthermore, the Court asks that expedited consideration of this

appeal be had pursuant to F.R.A.P. Rule 5(a).

     IT IS ORDERED the Religious Freedom Restoration Act of 1993

is unconstitutional.

     IT IS FURTHER ORDERED that an Interlocutory Appeal to the

Fifth Circuit Court of Appeals be had pursuant to 28 U.S.C. §

1292(b).

     IT IS FURTHER ORDERED that expedited consideration of this

appeal be had pursuant to F.R.A.P. 5(a).

     IT IS FURTHER ORDERED the trial set for March 15, 1995 is

stayed pending the outcome of the Interlocutory Appeal.

     SIGNED this thirteenth day of March, 1995.

                                 Lucius D. Bunton
                                 HONORABLE LUCIUS D. BUNTON III
                                 SENIOR DISTRICT JUDGE