SAN ANTONIO DIVISION 
     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]. 
     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: 
          (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. 
     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. 
     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.   
     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