SOUTER, J., dissenting

vertising seems to reflect a conclusion that could reasonably be drawn after examining some of the "branded" advertising in the record before us. A consumer galvanized by respondents' depiction of "Mr. Plum," App. 542, might turn down a plum by any other name, but I doubt it.15

I acknowledge that in implementing a credit program for individual advertising in an otherwise valid compulsory program, the Government would need substantial leeway in determining whether such expenditures do in fact further the goal of expanding markets generally. But where, as here, no particular evaluation has been made, and the statute dealing with other fruit apparently assumes that some private advertising does serve the common good, and everything else is left to assertion, there could be no finding that a program completely denying credits for all individual advertis

15 The Secretary also maintains that credit programs are appropriate for market conditions specific to the almond industry, where a single producer cooperative has a 92% share of the market for direct sales to consumers, see Cal-Almond, Inc. v. United States Dept. of Agriculture, 14 F. 3d 429, 438, n. 9 (CA9 1993), because in such circumstances "certain types of individual and brand advertising may accomplish the government's goals of market stability and increased consumption without creating a significant free-rider problem." Brief for Petitioner 47. As with the Secretary's other proffered justifications for the seemingly arbitrary choices made in the AMAA provisions concerning advertising, this explanation rests on nothing more than an unsubstantiated assertion, here about the effects of brand advertising. Moreover, the legislative and regulatory history provides no indication that this was the reason for permitting credits for almonds, but not plums, nectarines, or California-grown peaches. To the extent the record says anything, it seems to say quite the contrary of what the Secretary claims. See S. Rep. No. 91-1204, p. 2 (1970) (incorporating letter from Almond Growers Council noting that credit provision for almonds "will be model legislation for other commodities"); 37 Fed. Reg. 3983 (1972). The Secretary's explanation only leads one to wonder about filberts, for example; is their production, too, under the domination of a large cooperative? Is the grapefruit market structured in a way that renders virtually generic the brand-specific advertising for the Indian River crop?

THOMAS, J., dissenting

ing expenditures is narrowly tailored to an interest in the stability or expansion of overall markets for a commodity.

Although the government's obligation is not a heavy one in Central Hudson and the cases that follow it, we have understood it to call for some showing beyond plausibility, and there has been none here. I would accordingly affirm the judgment of the Ninth Circuit.

JUSTICE THOMAS, with whom JUSTICE SCALIA joins as to Part II, dissenting.

I

I join JUSTICE SOUTER's dissent, with the exception of Part II. My join is thus limited because I continue to disagree with the use of the Central Hudson balancing test and the discounted weight given to commercial speech generally. See 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484, 518– 528 (1996) (THOMAS, J., concurring in part and concurring in judgment) (criticizing Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557 (1980)). Because the regulation at issue here fails even the more lenient Central Hudson test, however, it, a fortiori, would fail the higher standard that should be applied to all speech, whether commercial or not.

II

I write separately to note my disagreement with the majority's conclusion that coerced funding of advertising by others does not involve "speech" at all and does not even raise a First Amendment "issue." See ante, at 469-474. It is one thing to differ about whether a particular regulation involves an "abridgment" of the freedom of speech, but it is entirely another matter-and a complete repudiation of our precedent for the majority to deny that "speech" is even at issue in this case.

THOMAS, J., dissenting

In numerous cases, this Court has recognized that paying money for the purposes of advertising involves speech.1 The Court also has recognized that compelling speech raises a First Amendment issue just as much as restricting speech.2 Given these two elemental principles of our First Amendment jurisprudence, it is incongruous to suggest that forcing fruitgrowers to contribute to a collective advertising campaign does not even involve speech, while at the same time effectively conceding that forbidding a fruitgrower to make those same contributions voluntarily would violate the First Amendment. Compare ante, at 470 (promotional regulations should be scrutinized under the same standard as other anticompetitive aspects of the marketing orders), with ante, at 469, and n. 12 (distinguishing this case as not involving a “restraint” on any producer's freedom to communicate with any audience). Yet, that is precisely what the majority opinion does.3

1See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557 (1980) (advertising to promote the use of electricity is speech); First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978) (corporate advertising regarding referendum); Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977) (per curiam) (payment of dues used to engage in speech); Buckley v. Valeo, 424 U. S. 1 (1976) (contributions for political advertising). 2 See Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180 (1997) (coerced carriage of broadcast signals over cable television facilities); Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal., 475 U. S. 1 (1986) (coerced inclusion of private messages in utility bill envelopes); Prune Yard Shopping Center v. Robins, 447 U. S. 74 (1980) (coerced creation of a speaker's forum on private property); Abood v. Detroit Bd. of Ed., supra (coerced payment of dues used to engage in speech); Wooley v. Maynard, 430 U. S. 705 (1977) (coerced display of state license plate); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974) (coerced right of reply to newspaper editorials); West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943) (coerced Pledge of Allegiance).

3 The majority's grounds for distinguishing certain of our precedents are, to say the least, unpersuasive and contradictory, as JUSTICE SOUTER'S dissent amply demonstrates. Moreover, the majority's excessive emphasis on the supposed collectivization of the fruit industry, ante, at 469, 474477, likewise fails to support its conclusion. Although the Constitution

THOMAS, J., dissenting

What we are now left with, if we are to take the majority opinion at face value, is one of two disturbing consequences: Either (1) paying for advertising is not speech at all, while such activities as draft card burning, flag burning, armband wearing, public sleeping, and nude dancing are, or (2) compelling payment for third-party communication does not implicate speech, and thus the Government would be free to force payment for a whole variety of expressive conduct that it could not restrict. In either case, surely we have lost our way.

may not "enact Mr. Herbert Spencer's Social Statics," Lochner v. New York, 198 U. S. 45, 75 (1905) (Holmes, J., dissenting), and thus the Government has a considerable range of authority in regulating the Nation's economic structure, part of the Constitution-the First Amendment-does enact a distinctly individualistic notion of "the freedom of speech," and Congress may not simply collectivize that aspect of our society, regardless of what it may do elsewhere.

4 See United States v. O'Brien, 391 U. S. 367 (1968) (draft card burning); Texas v. Johnson, 491 U. S. 397 (1989) (flag burning); Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 (1969) (armbands); Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984) (prohibition on sleeping in park raises First Amendment issues); Schad v. Mount Ephraim, 452 U. S. 61 (1981) (nude dancing).

Syllabus

CITY OF BOERNE v. FLORES, ARCHBISHOP OF SAN ANTONIO, ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 95-2074. Argued February 19, 1997-Decided June 25, 1997 Respondent, the Catholic Archbishop of San Antonio, applied for a building permit to enlarge a church in Boerne, Texas. When local zoning authorities denied the permit, relying on an ordinance governing historic preservation in a district which, they argued, included the church, the Archbishop brought this suit challenging the permit denial under, inter alia, the Religious Freedom Restoration Act of 1993 (RFRA). The District Court concluded that by enacting RFRA Congress exceeded the scope of its enforcement power under §5 of the Fourteenth Amendment. The court certified its order for interlocutory appeal, and the Fifth Circuit reversed, finding RFRA to be constitutional. Held: RFRA exceeds Congress' power. Pp. 512-536.

(a) Congress enacted RFRA in direct response to Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, in which the Court upheld against a free exercise challenge a state law of general applicability criminalizing peyote use, as applied to deny unemployment benefits to Native American Church members who lost their jobs because of such use. In so ruling, the Court declined to apply the balancing test of Sherbert v. Verner, 374 U. S. 398, which asks whether the law at issue substantially burdens a religious practice and, if so, whether the burden is justified by a compelling government interest. RFRA prohibits "[g]overnment" from "substantially burden[ing]" a person's exercise of religion even if the burden results from a rule of general applicability unless the government can demonstrate the burden “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that . . . interest." interest." 42 U. S. C. § 2000bb-1. RFRA's mandate applies to any branch of Federal or State Government, to all officials, and to other persons acting under color of law. §2000bb-2(1). Its universal coverage includes "all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after [RFRA's enactment]." § 2000bb-3(a). Pp. 512-516.

(b) In imposing RFRA's requirements on the States, Congress relied on the Fourteenth Amendment, which, inter alia, guarantees that no State shall make or enforce any law depriving any person of "life, lib