Table Of ContentCongress, the Supreme Court,
and Religious Liberty
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Congress, the Supreme Court,
and Religious Liberty
The Case of City of Boerne v. Flores
Jerold Waltman
congress, the supreme court, and religious liberty
Copyright © Jerold Waltman, 2013.
Softcover reprint of the hardcover 1st edition 2013 978-1-137-30063-8
All rights reserved.
First published in 2013 by PALGRAVE MACMILLAN® in the United States—a
division of St. Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010.
Where this book is distributed in the UK, Europe and the rest of the world, this is by
Palgrave Macmillan, a division of Macmillan Publishers Limited, registered in England,
company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS.
Palgrave Macmillan is the global academic imprint of the above companies and has
companies and representatives throughout the world.
Palgrave® and Macmillan® are registered trademarks in the United States, the United
Kingdom, Europe and other countries.
ISBN 978-1-349-45321-4 ISBN 978-1-137-30064-5 (eBook)
DOI 10.1057/9781137300645
Library of Congress Cataloging-in-Publication Data
Waltman, Jerold L., 1945-
Congress, the Supreme Court, and religious liberty : the case of City of Boerne v.
Flores / By Jerold Waltman.
p. cm.
Includes bibliographical references and index.
1. Boerne (Tex.),—Trials, litigation, etc. 2. Flores, Patricio,—Trials, litigation, etc. 3.
Freedom of religion—United States. 4. Religion and law—United States. I. Title.
KF228.B613W35 2013
342.7308'52—dc23
2013000409
A catalogue record of the book is available from the British Library.
Design by Scribe Inc.
First edition: June 2013
10 9 8 7 6 5 4 3 2 1
Contents
Acknowledgments vii
Introduction 1
1 The Road to RFRA 9
2 Boerne, Texas, and St. Peter Apostolic Catholic Church 31
3 A Building Permit Denied 47
4 Separation of Powers and Federalism in the Rehnquist Court 65
5 The Federal District Court and the Court of Appeals 79
6 The Supreme Court Decision 93
7 Political Reaction 125
8 Back in Boerne: Compromising to Build a Church 145
9 Conclusion 159
Photographs of St. Peter’s Catholic Church 164
Notes 167
Bibliography 187
Index 195
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Acknowledgments
Every writer has many debts to acknowledge. In research that combines
interviews and searches through archives with traditional library work,
however, those debts multiply.
Many citizens of Boerne have shown a keen civic-minded desire to
preserve the segment of their city’s history that is the story of the struggle
over the fate of St. Peter’s Catholic Church. Without their preservation
of primary documents and their willingness to share their recollections of
the event with me, my book would be far poorer than it is.
My greatest debt is to Bettie Edmonds and her colleague Ede Day of
the Boerne Public Library. Bettie and Ede enthusiastically embraced this
endeavor from the beginning and were instrumental in helping me com-
plete it. Bettie helped me identify and contact several key figures in the
case. As the library’s volunteer archivist, she also devoted many hours to
accumulating and sorting documents—including many that were made
available to us at the last minute when we were nearing completion of the
project. In the process, she photocopied mountains of documents for me.
Most of all, she offered encouragement during the process and has done
her best to help me accurately tell this Boerne story. (Of course, any errors
that have crept in are despite her efforts and are my responsibility alone.)
I am also indebted to the staff of the Boerne Star who provided easy
access to the archives of both the Star and the Hill Country Recorder. Fur-
thermore, Linda Zartler and the other staff at the city hall in Boerne were
generous with their time and expeditious in pulling requested documents
from the archives.
A grant from the Institute of Oral History at Baylor University enabled
me to conduct several recorded interviews related to the case. I am grate-
ful to the institute’s director, Stephen Sloan, and my technical contact,
Becky Shulda, for their assistance.
Fr. Tony Cummins, priest at St. Peter’s then and now, graciously met
me early in the project and showed me around the church. This provided
an invaluable “feel” for both the old and the new church. Douglas Lay-
cock, who served as attorney for the archdiocese and is of course a noted
scholar of church-state relations, also met with me in the early stages and
offered many insights, legal and otherwise. For taking the time to grant
me lengthy interviews, I owe an immeasurable thanks to several people in
viii Acknowledgments
Boerne who were directly involved in the case: Phillip Bell, Kit Brenner,
Patrice Davison, Patrick Heath, Eva Mitchell, Dub Smothers, and Chris-
topher Turk. I am also grateful to Lowell Denton, who served as an attor-
ney for the city, Msgr. Lawrence Stuebben, who was vicar-general for the
archdiocese, Patricia Millett, who participated in the case as an attorney
for the Department of Justice, and Julianna Sciaraffa, whose parents were
actively involved in the affairs of St. Peter’s (and who is now herself an
attorney) for discussing their involvement with the case with me.
My numerous trips to Boerne were financed in large part by funds
from my endowed professorship, the R. W. Morrison Chair in political
science. I am thankful for those who generously endowed this chair and
to Baylor University for making it available to me.
I probably tried the patience of many librarians at Baylor, but they
never showed it. A special thanks go to Rachel Little, the reference librar-
ian at the law school, and her colleague Linda McGennis.
I am also indebted to the staff of the political science department, Jen-
ice Langston and Melanie Pirelo. They fixed many a computer problem
and provided all kinds of other assistance.
Matthew Kopel of Palgrave showed confidence in the work from our
first contact, and for that I am grateful. Scarlett Neath of Palgrave has
guided me superbly through the technical parts of getting the manuscript
and other material in proper shape.
Introduction
In 1987, Anna Marie Davison, a longtime active member of St. Peter
Catholic Church in Boerne, Texas, compiled one of those typical, lauda-
tory but still highly informative, local church histories.1 She discussed in
some detail the nineteenth-century founding of the church in a commu-
nity that was hardly welcoming, inasmuch as the area had been initially
settled by freethinking secular German immigrants. She recounted how
the parish nevertheless grew, and then how in 1923 it built a beautiful
new limestone church, carefully modeled on Mission Concepcion in San
Antonio. Much of the work for this edifice, from hauling the stones to
the construction site to putting the finishing touches on the interior, was
done by the parishioners themselves. Then she brought the story up to
date, pointing with pride to the fact that the parish was still growing. Her
final sentence was “Who can say what is in store in the future for our
parish, St. Peter’s?” Little could she have imagined a landmark Supreme
Court case emerging from the church a mere decade later, or even less
imagined the important role that she would play in the drama surround-
ing the case.
The late Robert Drinan, one of America’s most prominent students
of church-state relations, remarked soon after City of Boerne v. Flores2
was handed down that “many years from now, there may be a plaque in
a small church on a hill twenty-eight miles northwest of San Antonio
telling tourists that this edifice, St. Peter Catholic Church in Boerne,
Texas, was the origin of an epic multiyear struggle about religious free-
dom in the United States. The plaque, reminiscent of the sign outside
the courtroom in St. Louis where Dred Scott was tried, will relate the
reasons why the Employment Division, Department of Human Resources
of Oregon v. Smith decision in 1990 prompted Congress to enact the
Religious Freedom Restoration Act (RFRA) in 1993 and how the U.S.
Supreme Court invalidated RFRA in 1997.”3
Since 1963, the Supreme Court had employed the “compelling inter-
est” test in free exercise cases.4 In essence, if the government, state or
federal, wished to enforce a generally applicable law against someone who
maintained that the measure violated her religious beliefs, it had to dem-
onstrate that it had a compelling interest in doing so. To the shock and
dismay of many observers, the Smith case of 19905 discarded that test and
