80 Wis. 523
50 N.W. 403

VOSBURG
v.
PUTNEY.

Supreme Court of Wisconsin.

Nov. 17, 1891.

Appeal from circuit court, Waukesha county; A. SCOTT SLOAN, Judge. Reversed.

Action by Andrew Vosburg against George Putney for personal injuries. From a judgment for plaintiff, defendant appeals.

The other facts fully appear in the following statement by LYON, J.:

The action was brought to recover damages for an assault and battery, alleged to have been committed by the defendant upon the plaintiff on February 20, 1889. The answer is a general denial. At the date of the alleged assault the plaintiff was a little more than 14 years of age, and the defendant a little less than 12 years of age. The injury complained of was caused by a kick inflicted by defendant upon the leg of the plaintiff, a little below the knee. The transaction occurred in a school-room in Waukesha, during school hours, both parties being pupils in the school. A former trial of the cause resulted in a verdict and judgment for the plaintiff for $2,800. The defendant appealed from such judgment to this court, and the same was reversed for error, and a new trial awarded. 78 Wis. 84, 47 N. W. Rep. 99. The case has been again tried in the circuit court, and the trial resulted in a verdict for plaintiff for $2,500. The facts of the case, as they appeared on both trials, are sufficiently stated in the opinion by Mr. Justice ORTON on the former appeal, and require no repetition. On the last trial the jury found a special verdict, as follows: “(1) Had the plaintiff during the month of January, 1889, received an injury just above the knee, which became inflamed, and produced pus? Answer. Yes. (2) Had such injury on the 20th day of February, 1889, nearly healed at the point of the injury? A. Yes. (3) Was the plaintiff, before said 20th of February, lame, as the result of such injury? A. No. (4) Had the tibia in the plaintiff's right leg become inflamed or diseased to some extent before he received the blow or kick from the defendant? A. No. (5) What was the exciting cause of the injury to the plaintiff's leg? A. Kick. (6) Did the defendant, in touching the plaintiff with his foot, intend to do him any harm? A. No. (7) At what sum do you assess the damages of the plaintiff? A. Twenty-five hundred dollars.” The defendant moved for judgment in his favor on the verdict, and also for a new trial. The plaintiff moved for judgment on the verdict in his favor. The motions of defendant were overruled, and that of the plaintiff granted. Thereupon judgment for plaintiff, for $2,500 damages and costs of suit, was duly entered. The defendant appeals from the judgment. [50 N.W. 403] M. S. Griswold and T. W. Haight, ( J. V. Quarles, of counsel,) for appellant, to sustain the proposition that where there is no evil intent there can be no recovery, cited: 2 Greenl. Ev. §§ 82-85; 2 Add. Torts, § 790; Cooley, Torts, p. 162; Coward v. Baddeley, 4 Hurl. & N. 478; Christopherson v. Bare, 11 Q. B. 473; Hoffman v. Eppers, 41 Wis. 251;Krall v. Lull, 49 Wis. 405, 5 N. W. Rep. 874; Crandall v. Transportation Co., 16 Fed. Rep. 75; Brown v. Kendall, 6 Cush. 292.

Ryan & Merton, for respondent.

LYON, J., (after stating the facts.)

Several errors are assigned, only three of which will be considered.

I. The jury having found that the defendant, in touching the plaintiff with his foot, did not intend to do him any harm, counsel for defendant maintain that the plaintiff has no cause of action, and that defendant's motion for judgment on the special verdict should have been granted. In support of this proposition counsel quote from 2 Greenl. Ev. § 83, the rule that “the intention to do harm is of the essence of an assault.” Such is the rule, no doubt, in actions or prosecutions for mere assaults. But this is an action to recover damages for an alleged assault and battery. In such case the rule is correctly stated, in many of the authorities cited by counsel, that plaintiff must show either that the intention was unlawful, or that the defendant is in fault. If the intended act is unlawful, the intention to commit it must necessarily be unlawful. Hence, as applied to this case, if the kicking of the plaintiff by the defendant was an unlawful act, the intention of defendant to kick him was also unlawful. Had the parties been upon the play-grounds of the school, engaged in the usual boyish sports, the defendant being free from malice, wantonness, or negligence, and intending no harm to plaintiff in what he did, we should hesitate to hold the act of [50 N.W. 404] the defendant unlawful, or that he could be held liable in this action. Some consideration is due to the implied license of the play-grounds. But it appears that the injury was inflicted in the school, after it had been called to order by the teacher, and after the regular exercises of the school had commenced. Under these circumstances, no implied license to do the act complained of existed, and such act was a violation of the order and decorum of the school, and necessarily unlawful. Hence we are of the opinion that, under the evidence and verdict, the action may be sustained.

II. The plaintiff testified, as a witness in his own behalf, as to the circumstances of the alleged injury inflicted upon him by the defendant, and also in regard to the wound he received in January, near the same knee, mentioned in the special verdict. The defendant claimed that such wound was the proximate cause of the injury to plaintiff's leg, in that it produced a diseased condition of the bone, which disease was in active progress when he received the kick, and that such kick did nothing more than to change the location, and perhaps somewhat hasten the progress, of the disease. The testimony of Dr. Bacon, a witness for plaintiff, (who was plaintiff's attending physician,) elicited on cross-examination, tends to some extent to establish such claim. Dr. Bacon first saw the injured leg on February 25th, and Dr. Philler, also one of plaintiff's witnesses, first saw it March 8th. Dr. Philler was called as a witness after the examination of the plaintiff and Dr. Bacon. On his direct examination he testified as follows: “I heard the testimony of Andrew Vosburg in regard to how he received the kick, February 20th, from his playmate. I heard read the testimony of Miss More, and heard where he said he received this kick on that day.” (Miss More had already testified that she was the teacher of the school, and saw defendant standing in the aisle by his seat, and kicking across the aisle, hitting the plaintiff.) The following question was then propounded to Dr. Philler: “After hearing that testimony, and what you know of the case of the boy, seeing it on the 8th day of March, what, in your opinion, was the exciting cause that produced the inflammation that you saw in that boy's leg on that day?” An objection to this question was overruled, and the witness answered: “The exciting cause was the injury received at that day by the kick on the shin-bone.” It will be observed that the above question to Dr. Philler calls for his opinion as a medical expert, based in part upon the testimony of the plaintiff, as to what was the proximate cause of the injury to plaintiff's leg. The plaintiff testified to two wounds upon his leg, either of which might have been such proximate cause. Without taking both of these wounds into consideration, the expert could give no intelligent or reliable opinion as to which of them caused the injury complained of; yet, in the hypothetical question propounded to him, one of these probable causes was excluded from the consideration of the witness, and he was required to give his opinion upon an imperfect and insufficient hypothesis,--one which excluded from his consideration a material fact essential to an intelligent opinion. A consideration by the witness of the wound received by the plaintiff in January being thus prevented, the witness had but one fact upon which to base his opinion, to-wit, the fact that defendant kicked plaintiff on the shin-bone. Based, as it necessarily was, on that fact alone, the opinion of Dr. Philler that the kick caused the injury was inevitable, when, had the proper hypothesis been submitted to him, his opinion might have been different. The answer of Dr. Philler to the hypothetical question put to him may have had, probably did have, a controlling influence with the jury, for they found by their verdict that his opinion was correct. Surely there can be no rule of evidence which will tolerate a hypothetical question to an expert, calling for his opinion in a matter vital to the case, which excludes from his consideration facts already proved by a witness upon whose testimony such hypothetical question is based, when a consideration of such facts by the expert is absolutely essential to enable him to form an intelligent opinion concerning such matter. The objection to the question put to Dr. Philler should have been sustained. The error in permitting the witness to answer the question is material, and necessarily fatal to the judgment.

III. Certain questions were proposed on behalf of defendant to be submitted to the jury, founded upon the theory that only such damages could be recovered as the defendant might reasonably be supposed to have contemplated as likely to result from his kicking the plaintiff. The court refused to submit such questions to the jury. The ruling was correct. The rule of damages in actions for torts was held in Brown v. Railway Co., 54 Wis. 342, 11 N. W. Rep. 356, 911, to be that the wrongdoer is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him. The chief justice and the writer of this opinion dissented from the judgment in that case, chiefly because we were of the opinion that the complaint stated a cause of action ex contractu, and not ex delicto, and hence that a different rule of damages--the rule here contended for -- was applicable. We did not question that the rule in actions for tort was correctly stated. That case rules this on the question of damages. The remaining errors assigned are upon the rulings of the court on objections to testimony. These rulings are not very likely to be repeated on another trial, and are not of sufficient importance to require a review of them on this appeal. The judgment of the circuit court must be reversed, and the cause will be remanded for a new trial.

654 A.2d 690

Victorie A. PICARD
v.
BARRY PONTIAC-BUICK, INC. et al.

93-221-A.

Supreme Court of Rhode Island.

Feb. 9, 1995.

[691] Peter M. Cosel, Donato D'Andrea, Newport, for plaintiff.

Lauren E. Jones, Jones Associates, Brenda Coville Harrigan, Gunning, LaFazia & Gnys, Robert S. Thurston, Jones Associates, Providence, for defendant.

OPINION

LEDERBERG, Justice.

This case came before the Supreme Court on the appeal of Jesse Silvia (defendant) from a judgment against him for assault and battery, for compensatory damages in the amount of $60,346, and for punitive damages in the amount of $6,350, plus interest and costs. We affirm the judgment in respect to the assault and battery but sustain the defendant's appeal in respect to damages. We vacate the award of damages and remand the case to the Superior Court for a new trial on damages.

FACTS AND PROCEDURAL HISTORY

This case began eight years ago with a broken signal light. The plaintiff, Victorie A. Picard, brought her mother's car to Barry Pontiac-Buick, Inc. (Barry Pontiac)^[1] in Newport, Rhode Island, where the car had been purchased, to have the light repaired. While the car was being repaired, plaintiff decided to have its annual inspection performed as well. The car failed this inspection because, according to a Barry Pontiac representative, the brakes needed to be replaced. The plaintiff brought the car to Kent's Alignment Service (Kent's Alignment), also located in Newport, where the car passed inspection.

The plaintiff then contacted a local television news "troubleshooter" reporter, presumably to report her experience at the two inspection sites. Shortly after Kent's Alignment had inspected plaintiff's car, Barry Pontiac phoned Kent's Alignment to ask that the car be checked again and the sticker removed because the brakes "were bad." Accordingly Edward Kent (Kent), the owner of Kent's Alignment, set January 27, 1987, as the date that plaintiff, accompanied by her goddaughter Kristen Ann Seyster (Seyster), returned with the car to Kent's garage.

Kent's Alignment was divided into a garage area separated by a glass partition from an office area. At the time of the incident at issue in this case, Seyster was in the office, while plaintiff was in the garage. After Kent inspected the car, he told plaintiff that he had been asked to call Barry Pontiac which also wished to inspect the brakes. Ray Stevens (Stevens), the service manager at Barry Pontiac arrived at Kent's Alignment, accompanied by defendant, who was employed by Barry Pontiac.

[692] The defendant began to inspect the brakes. He and plaintiff gave vastly different descriptions of what next happened. The plaintiff said she began to take a picture of defendant as he was facing away from her, presumably as evidence for the troubleshooter report. The plaintiff testified that she did intend to photograph defendant although the photograph was not intended to identify defendant. The photograph did, however, clearly show defendant fully facing the camera, standing upright while pointing his index finger at plaintiff. After the camera snapped, the events that gave rise to this case occurred.

The plaintiff testified that defendant "lunged" at her and "grabbed [her] around around [sic] the shoulders,"^[2] although plaintiff did not experience any pain. The plaintiff then testified on cross-examination that after defendant grabbed her by both her shoulders, she and defendant "spun around wrestling." According to plaintiff, defendant released her after someone said, "let her go." The plaintiff then left the garage with her goddaughter.

Seyster and Stevens also testified at trial, and Kent's deposition was admitted into evidence. Seyster, who had remained in the office area, testified that she saw defendant "grab her [plaintiff's] left shoulder and try to get the picture with his other hand," but defendant did not touch either the photograph or the camera. Seyster further testified that defendant had reached for plaintiff with only one arm, not two, and that plaintiff was not spun around, shaken, picked up or thrown against a wall. Stevens testified that he did not see what transpired because his back was turned. He did, however, remember defendant "hollering" that he did not want his picture taken. Kent stated that after plaintiff came out of the office and attempted to photograph defendant, he heard defendant say something such as "don't take my picture." Kent then saw defendant reach for the camera and touch it, but saw no contact between plaintiff and defendant, nor did he see defendant lift plaintiff.

The defendant testified that as he was looking at the car, plaintiff had come up behind him and aimed the camera toward him. He then pointed at plaintiff and said, "who gave you permission to take my picture?" then walked around the car to plaintiff, placed his index finger on the camera and again asked, "who gave you permission to take my picture?" The defendant denied grabbing plaintiff, touching her body, threatening her or making any threatening gestures, scuffling with her or reaching for the photograph. He also testified that he did not intend to cause plaintiff any bodily harm.

The plaintiff testified that although she did not experience any pain immediately after the incident, she did experience numbness in her hips and legs. However, about a week after the incident, plaintiff visited William E. Kenney, M.D. (Kenney) because of "pain radiating down my right leg * * *," pain that reportedly continued periodically up to the time of trial. Kenney examined plaintiff and advised a CAT scan. W.R. Courey, M.D., of St. Anne's Hospital in Fall River, Massachusetts, prepared a radiology report on April 17, 1987, that described "[g]eneralized degenerative bulging of the annulus at [L-3-L-4, L-4-L-5 and L-5-S-1]." Kenney himself saw plaintiff five times in his office between January 30, 1987, and May 26, 1987, each time with a $30 charge.

On April 28, 1987, Kenney wrote a "To Whom it May Concern" letter, in which he stated:

"This patient had had a ruptured intervertebra disc on the left which was apparent in October or earlier of 1985. She had not complained of her right lower extremity, however, on 1/30/87 she was seen with a history that she had been assaulted on 1/22/87 and had pain in the right lower extremity. The CAT scan taken at St. Anne's Hospital on 4/17/87 reveals nerve root pressure on the right at L5-S1 level. [693]Therefore, this change is probably causally related with the assault."

On June 1, 1987, Kenney wrote a second "To Whom it May Concern" letter, stating: "The question has been raised as to whether or not the pain in the right leg is permanent. The answer is that it is probably not permanent, but there is no way that I have of knowing for sure whether it is permanent or not." (Emphasis added.) But, twenty-four days later, with no evidence of an intervening examination of plaintiff, Kenney, on June 25, 1987, wrote to plaintiff's attorney:

"It is apparent that the patient sustained a ruptured disc on the right at L5-S1 found by CAT scan on 4/17/87, following an assault on 1/22/87. The ruptured disc at L5-S1 on the right is a permanent injury." (Emphasis added.)

The injured area identified by Kenney was the right L5-S1 region of the spinal column. The defendant introduced into evidence a Newport Hospital Report dated March 26, 1985, which showed a left-sided disc herniation at the L5-S1 locus. The plaintiff confirmed at trial that she had had a history of back problems for at least ten years prior to her encounter with defendant.

On January 6, 1993, some five and one-half years after he last examined plaintiff, Kenney again wrote to plaintiff's counsel and stated:

"To a reasonable degree of medical certainty, in my opinion, the ruptured disc Victorie Picard sustained at L5-S1 was proximately caused by the assault of January 22, 1987. The injury sustained on January 22, 1987, in my opinion, stated with a reasonable degree of medical certainty is permanent in nature."

On January 11, 1993, Kenney swore an affidavit entitled: "Amended Affidavit Under Section 9-17-27 [sic] of the Rhode Island General Laws Entitled 'Evidence of Charges for Medical and Hospital Services' " that amended his affidavit of 1987. Attached to the amended affidavit were Kenney's letter of January 6, 1993, the radiology report from St. Anne's Hospital dated April 17, 1987, and the receipts from plaintiff's five visits to Kenney's office. The original affidavit had contained receipts of the office visits, Kenney's letters of June 25, 1987, June 1, 1987, and April 28, 1987, the radiology report and a letter of May 5, 1987, describing the radiology report.

The amended affidavit stated in part:

"Now comes William E. Kenney, M.D. and makes affidavit under oath and says as follows: * * *

(3) That the attached record of examination of the person examined reflects my true opinion with respect to the diagnosis, prognosis, and proximate cause of the conditions diagnosed.

(4) That to a reasonable degree of medical certainty, the condition detailed in the attached record, related in the history provided by the patient, was the proximate result of the incident which occurred on January 22, 1987."

Other than plaintiff's testimony, these affidavits and their appended records and letters, admitted into evidence by the trial judge, constituted the only medical evidence that documented plaintiff's alleged injury. Kenney was not deposed, nor did he testify at trial.

The plaintiff prevailed at trial and was awarded compensatory damages in the amount of $60,346. Because the trial justice found that defendant's conduct was "sufficiently egrigious [sic]," punitive damages in the amount of $6,350 were imposed, for a total judgment of $66,696, plus interest and costs. The defendant appealed the judgment, arguing (1) that plaintiff failed to prove an assault and battery; (2) that plaintiff failed to prove that defendant's actions in fact caused the alleged harm to her; and (3) that the damage awards were grossly excessive and inappropriate as a matter of law.

STANDARD OF REVIEW

The findings made by a trial justice, sitting without a jury, are accorded great weight. Raheb v. Lemenski, 115 R.I. 576, 579, 350 A.2d 397, 399 (1976). These findings will not be disturbed on appeal absent a determination that the trial justice misconceived or overlooked relevant evidence or was otherwise clearly wrong. Rego Displays, [694] Inc. v. Fournier, 119 R.I. 469, 473, 379 A.2d 1098, 1100-01 (1977); Barattini v. McGovern, 110 R.I. 360, 362, 292 A.2d 860, 861 (1972).

ASSAULT AND BATTERY

The defendant contended that plaintiff failed to prove the occurrence of an assault because plaintiff was not placed in reasonable fear of imminent bodily harm. Further, defendant argued that plaintiff failed to prove a battery because the evidence failed to establish that defendant intended to inflict an unconsented touching of plaintiff. We disagree with both contentions.

Assault and battery are separate acts, usually arising from the same transaction, each having independent significance. Proffitt v. Ricci, 463 A.2d 514, 517 (R.I.1983). "An assault is a physical act of a threatening nature or an offer of corporal injury which puts an individual in reasonable fear of imminent bodily harm." Id. It is a plaintiff's apprehension of injury which renders a defendant's act compensable. Id.; see also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 10, at 43 (5th ed. 1984) ("[t]he damages recoverable for [assault] are those for the plaintiff's mental disturbance, including fright, humiliation and the like, as well as any physical illness which may result from them"). This apprehension must be the type of fear normally aroused in the mind of a reasonable person. Keeton et al., supra, at 44.

The plaintiff testified that she was frightened by defendant's actions. A review of the attendant circumstances attests that such a reaction was reasonable. The defendant admitted approaching plaintiff, and the photograph taken that day clearly showed defendant pointing his finger at plaintiff as defendant approached her. Because plaintiff's apprehension of imminent bodily harm was reasonable at that point, plaintiff has established a prima facie case of assault.

We have defined battery as an act that was intended to cause, and in fact did cause, "an offensive contact with or unconsented touching of or trauma upon the body of another, thereby generally resulting in the consummation of the assault. * * * An intent to injure plaintiff, however, is unnecessary in a situation in which a defendant willfully sets in motion a force that in its ordinary course causes the injury." Proffitt, 463 A.2d at 517.

In the instant case, defendant contended that a battery did not occur because defendant did not intend to touch or injure plaintiff. Rather, defendant argued, the evidence showed that he intended to touch plaintiff's camera, not plaintiff's person, and therefore the contact was insufficient to prove battery. With this contention we must disagree. Even if this court were to accept defendant's characterization of the incident, a battery had nonetheless occurred. The defendant failed to prove that his actions on January 22, 1987, were accidental or involuntary. Therefore, defendant's offensive contact with an object attached to or identified with plaintiff's body was sufficient to constitute a battery. As noted in the comments to the Restatement (Second) Torts § 18, comment c at 31 (1965):

"Unpermitted and intentional contacts with anything so connected with the body as to be customarily regarded as part of the other's person and therefore as partaking of its inviolability is actionable as an offensive contact with his person. There are some things such as clothing or a cane or, indeed, anything directly grasped by the hand which are so intimately connected with one's body as to be universally regarded as part of the person." (Emphasis added.)

The defendant's contact with the camera clutched in plaintiff's hand was thus sufficient to constitute a battery. We conclude, therefore, that plaintiff has proven the elements of assault and battery.

PROOF OF CAUSATION

The defendant next asserted that evidence was insufficient to prove that his actions caused plaintiff's condition because the medical evidence submitted by plaintiff was [695] not competent.^[3] We agree.

At the start of trial, defendant objected to the admission of Kenney's January 11, 1993 affidavit which refers to Kenney's opinions to the permanency of plaintiff's condition. The record disclosed that Kenney last examined plaintiff on May 26, 1987, but included no evidence that Kenney examined plaintiff at any time during the ensuing five and one-half year period before executing the affidavit. At the time of trial Kenney had been retired for six years and resided in Massachusetts. It is an impermissible affront to reason to uphold Kenney's affidavit which attested to the cause and permanency of injury in a patient whom he had not treated in five and one-half years and whose medical file he apparently did not consult at the time he signed the affidavit.^[4] Furthermore, the material which supported the affidavit was substantively inconsistent. Kenney's 1993 letter stated that the injury to plaintiff was "permanent in nature." However, in support of the 1987 affidavit, shortly after his last examination of plaintiff, he wrote on June 1, 1987, that the injury was "probably not permanent." Yet, twenty-four days later, without reexamining plaintiff, he stated in a letter to plaintiff's attorney, that the injury was permanent, a position which he maintained until 1993, though he never reexamined plaintiff in the intervening five and one-half years.

In Parrillo v. F.W. Woolworth Co., 518 A.2d 354, 355 (R.I.1986), this court stated that, "The substitution of a written affidavit for live medical testimony * * * in no way relaxes the minimum requirements for the admission of competent medical testimony." Further, we have noted that, "Although all litigants have the right to take advantage of the provisions of § 9-19-27, they run the risk of a failure of proof unless the medical picture is sufficiently clear and unambiguous to lend itself to this simplified manner of proof." Id. at 356. In the instant case, the conflicting descriptions by Kenney concerning the permanency of plaintiff's injury and the length of time between his examinations and the production of the amended affidavit conclusively demonstrate that the proof was not "clear and unambiguous." Id. Our careful review of the record failed to disclose conclusive evidence that plaintiff's alleged injuries were caused by defendant's assault and battery and that such alleged injury was permanent. Indeed, the trial justice stated that "the disability that she [plaintiff] suffers under is per the medical opinion permanent, or at least was at the time of the opinion." The trial justice's apparent doubt as to whether the injury was permanent at the time of trial illustrated further plaintiff's failure to present sufficient medical evidence under this simplified manner of proof. See Parrillo, 518 A.2d at 356. We therefore conclude that the medical evidence presented by plaintiff was incompetent to establish that the assault and battery by defendant was the proximate cause of plaintiff's alleged injury.

DAMAGES

A. Compensatory Damages

The defendant next argued that the trial justice's award of compensatory damages in the amount of $60,346 was grossly excessive. We agree.

The trial justice based the award of compensatory damages in part on the pain and suffering alleged by plaintiff, whom the trial justice found credible and candid. The trial justice found that the inconsistencies in the testimony of the witnesses presented by plaintiff were "not significant in [the] Court's [696] mind." Such a conclusion, however, ignored the contradictions between the witnesses' testimony and the internal inconsistencies of plaintiff's own testimony. Indeed, our review of the record revealed that plaintiff's testimony was remarkably malleable.^[5] The plaintiff transformed a slight touching (as it was characterized by all witnesses except plaintiff) into a major assault and battery.

In addition to the inconsistencies in plaintiff's testimony concerning the event, plaintiff's testimony in respect to her pain and suffering was not credible, given her medical disabilities that predated the alleged additional injury that she claimed to have sustained as a result of the assault and battery. The trial justice was clearly wrong in relying on plaintiff's testimony concerning her pain and suffering absent additional evidence to establish the specific pain and suffering that developed from this contact with defendant.

This court will not disturb an award for pain and suffering unless the award " 'shocks the conscience' or is grossly excessive." Proffitt, 463 A.2d at 519 (citing Bruno v. Caianiello, 121 R.I. 913, 917, 404 A.2d 62, 65 (1979)). Given the absence of competent medical evidence of causation and given that plaintiff's testimony concerning the assault and her subsequent injuries was not credible, the award of $60,346 in compensatory damages was clearly excessive and out of all proportion to the alleged injury. Consequently, we vacate the award.

B. Punitive Damages

The defendant also argued that punitive damages should not have been awarded because the trial justice did not find that defendant acted with malice or in bad faith as directed by Palmisano v. Toth, 624 A.2d 314, 318 (R.I.1993). Disfavored in the law, an award of punitive damages is an extraordinary sanction permitted only with great caution and within narrow limits. Id. In the instant case there was no proof of malice or bad faith nor was there a finding that defendant acted with malice. Consequently, the award of punitive damages in this case was not consistent with the purpose of such damages, namely, the deterrence of a defendant's "willfulness, recklessness or wickedness," because evidence of these factors was not presented. Id. (quoting Sherman v. McDermott, 114 R.I. 107, 109, 329 A.2d 195, 196 (1974)).

In conclusion, we deny in part and sustain in part the defendant's appeal. We affirm the judgment of the Superior Court in respect to the defendant's commission of assault and battery, but we vacate the awards of compensatory and punitive damages. We remand the case to the Superior Court for a new trial on the damages sustained by the plaintiff.

[1] After plaintiff rested, Barry Pontiac moved to dismiss the suit against it pursuant to Rule 41(b)(2) of the Superior Court Rules of Civil Procedure. The trial justice granted the motion, and therefore, Barry Pontiac is not a party to this appeal.

[2] In a statement describing the incident to the Newport Police, plaintiff stated, "HE GRABBED MY COAT[.] I LUNGED BACKWARD HURTING MY BACK[.]" In a Social Security Administration "Reconsideration Disability Report" dated March 20, 1987, plaintiff stated that she had been "attack [sic] by a merchanic [sic] from Barry Pontiac" and that she had been "[t]hrown against a wall at Kents [sic] garage [.]" The plaintiff testified at trial that, notwithstanding the Disability Report, she had not been thrown against a wall.

[3] The affidavit was admitted under G.L.1956 (1985 Reenactment) § 9-19-27, which states in pertinent part:

"(a) [I]n any proceeding commenced in any court * * *, an itemized bill and reports, including hospital medical records, relating to medical * * * services * * * and/or any report of any examination of said injured person, including, but not limited to, hospital medical records subscribed and sworn to * * * by the physician * * * shall be admissible as evidence of * * * the necessity of such services or treatment, the diagnosis of said physician * * *, the prognosis of such physician * * * the opinion of such physician * * * as to proximate cause of the condition so diagnosed, the opinion of such physician * * * as to disability or incapacity, if any, proximately resulting from the condition so diagnosed * * *."

[4] Counsel for Barry Pontiac reported at trial that Kenney had retired six years earlier and had sent his medical records to "dead files."

[5] The following exchanges between plaintiff and defense counsel illustrate the nature of plaintiff's testimony:

"Q So it's possible that you told Dr. Kenney that you were shaken by the assailant?

"A Well, I was shaken, but maybe not in the terms--but I was shook up. That's it. You know what I mean. I was shook up mentally. I was ascared [sic]."

and again,

"Q Are you claiming that he [Silvia] physically picked you up and swung you around?

"A Well, my feet wasn't hitting the floor. * * *.

"Q So in addition to Mr. Silvia grabbing you by the shoulders he physically lifted you off the ground, is that correct?

"A I can't say for sure because I felt dizzy. The room was spinning. So I felt like I was off the floor, but I don't know because I was just moving around fast."

63 Ill. 553
1872 WL 8247 (Ill.)

WILLIAM E. ALCORN
v.
ANDREW J. MITCHELL.

Supreme Court of Illinois.

June Term, 1872.

APPEAL from the Circuit Court of Marion county; the Hon. SILAS L. BRYAN, Judge, presiding.

Messrs. SHAW, HAYWARD & SMITH, for the appellant.

Messrs. WILSON & HUTCHINSON, and Mr. JONATHAN PALMER, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

The ground mainly relied on for the reversal of the judgment in this case is, that the damages are excessive, being $1000.

The case presented is this: There was a trial of an action of trespass between the parties, wherein the appellee was defendant, in the circuit court of Jasper county. At the close of the trial the court adjourned, and, immediately upon the adjournment, in the court room, in the presence of a large number of persons, the appellant deliberately spat in the face of the appellee.

So long as damages are allowable in any civil case, by way of punishment or for the sake of example, the present, of all cases, would seem to be a most fit one for the award of such damages. [63 Ill. 554] The act in question was one of the greatest indignity, highly provocative of retaliation by force, and the law, as far as it may, should afford substantial protection against such outrages, in the way of liberal damages, that the public tranquillity may be preserved by saving the necessity of resort to personal violence as the only means of redress.

Suitors, in the assertion of their rights, should be allowed approach to the temple of justice without incurring there exposure to such disgraceful indignities, in the very presence of its ministers.

It is customary to instruct juries that they may give vindictive damages where there are circumstances of malice, wilfulness, wantonness, outrage and indignity attending the wrong complained of. The act in question was wholly made up of such qualities. It was one of pure malignity, done for the mere purpose of insult and indignity.

An exasperated suitor has indulged the gratification of his malignant feelings in this despicable mode. The act was the very refinement of malice. The defendant appears to be a man of wealth; we can not say that he has been made to pay too dearly for the indulgence.

We have carefully looked into the instructions given and refused, and do not perceive any substantial error in respect to them.

The judgment must be affirmed.

Judgment affirmed.

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 16–402

There are 396 million cell phone service accounts in the United States—for a Nation of 326 million people. Cell phones perform their wide and growing variety of functions by connecting to a set of radio antennas called “cell sites.” Although cell sites are usually mounted on a tower, they can also be found on light posts, flagpoles, church steeples, or the sides of buildings. Cell sites typically have several directional antennas that divide the covered area into sectors.

Cell phones continuously scan their environment looking for the best signal, which generally comes from the closest cell site. Most modern devices, such as smartphones, tap into the wireless network several times a minute whenever their signal is on, even if the owner is not using one of the phone’s features. Each time the phone connects to a cell site, it generates a time-stamped record known as cell-site location information (CSLI). The precision of this information depends on the size of the geographic area covered by the cell site. The greater the concentration of cell sites, the smaller the coverage area. As data usage from cell phones has increased, wireless carriers have installed more cell sites to handle the traffic. That has led to increasingly compact coverage areas, especially in urban areas.

Wireless carriers collect and store CSLI for their own business purposes, including finding weak spots in their network and applying “roaming” charges when another carrier routes data through their cell sites. In addition, wireless carriers often sell aggregated location records to data brokers, without individual identifying information of the sort at issue here. While carriers have long retained CSLI for the start and end of incoming calls, in recent years phone companies have also collected location information from the transmission of text messages and routine data connections. Accordingly, modern cell phones generate increasingly vast amounts of increasingly precise CSLI.

B

In 2011, police officers arrested four men suspected of robbing a series of Radio Shack and (ironically enough) T-Mobile stores in Detroit. One of the men confessed that, over the previous four months, the group (along with a rotating cast of getaway drivers and lookouts) had robbed nine different stores in Michigan and Ohio. The suspect identified 15 accomplices who had participated in the heists and gave the FBI some of their cell phone numbers; the FBI then reviewed his call records to identify additional numbers that he had called around the time of the robberies.

Brown et al. v. Board of Education of Topeka, Shawnee County, KN., et al. Briggs et al. v. Elliott et al. Davis et al. v. County School Board of Prince Edward County, VA., et al. Gebhart et al. v. Belton et al.

Reargued Dec. 7, 8, 9, 1953.

Decided May 17, 1954.

[Syllabus from pages 483-484 intentionally omitted]*484 No. 1:

Mr. Robert L. Carter, New York City, for appellants Brown and others.

Mr. Paul E. Wilson, Topeka, Kan., for appellees Board of Education of Topeka and others.

Nos. 2, 4:

Messrs. Spottswood Robinson III, Thurgood Marshall, New York City, for appellants Briggs and Davis and others.

Messrs. John W. Davis,*485 T. Justin Moore, J. Lindsay Almond, Jr., Richmond, Va., for appellees Elliott and County School Board of Prince Edward County and others.

Asst. Atty. Gen. J. Lee Rankin for United States amicus curiae by special leave of Court.

No. 10:

Mr. H. Albert Young, Wilmington, Del., for petitioners Gebhart et al.

Mr. Jack Greenberg, Thurgood Marshall, New York City, for respondents Belton et al.

*486Mr. Chief Justice WARREN delivered the opinion of the Court.

These cases come to us from the States of Kansas, South Carolina, Virginia, and Delaware. They are premised on different facts and different local conditions, but a common legal question justifies their consideration together in this consolidated opinion.1*487 In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance,*488 they have been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment. In each of the cases other than the Delaware case, a three-judge federal district court denied relief to the plaintiffs on the so-called 'separate but equal' doctrine announced by this Court in Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256. Under that doctrine, equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities be separate. In the Delaware case, the Supreme Court of Delaware adhered to that doctrine, but ordered that the plaintiffs be admitted to the white schools because of their superiority to the Negro schools.

The plaintiffs contend that segregated public schools are not 'equal' and cannot be made 'equal,' and that hence they are deprived of the equal protection of the laws. Because of the obvious importance of the question presented, the Court took jurisdiction.2 Argument was heard in the 1952 Term, and reargument was heard this Term on certain questions propounded by the Court.3*489 Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth Amendment in 1868. It covered exhaustively consideration of the Amendment in Congress, ratification by the states, then existing practices in racial segregation, and the views of proponents and opponents of the Amendment. This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among 'all persons born or naturalized in the United States.' Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty.

An additional reason for the inconclusive nature of the Amendment's history, with respect to segregated schools, is the status of public education at that time.4 In the South, the movement toward free common schools, sup*490ported by general taxation, had not yet taken hold. Education of white children was largely in the hands of private groups. Education of Negroes was almost nonexistent, and practically all of the race were illiterate. In fact, any education of Negroes was forbidden by law in some states. Today, in contrast, many Negroes have achieved outstanding success in the arts and sciences as well as in the business and professional world. It is true that public school education at the time of the Amendment had advanced further in the North, but the effect of the Amendment on Northern States was generally ignored in the congressional debates. Even in the North, the conditions of public education did not approximate those existing today. The curriculum was usually rudimentary; ungraded schools were common in rural areas; the school term was but three months a year in many states; and compulsory school attendance was virtually unknown. As a consequence, it is not surprising that there should be so little in the history of the Fourteenth Amendment relating to its intended effect on public education.

In the first cases in this Court construing the Fourteenth Amendment, decided shortly after its adoption, the Court interpreted it as proscribing all state-imposed discriminations against the Negro race.5 The doctrine of*491   "separate but equal" did not make its appearance in this court until 1896 in the case of Plessy v. Ferguson, supra, involving not education but transportation.6 American courts have since labored with the doctrine for over half a century. In this Court, there have been six cases involving the 'separate but equal' doctrine in the field of public education.7 In Cumming v. Board of Education of Richmond County, 175 U.S. 528, 20 S.Ct. 197, 44 L.Ed. 262, and Gong Lum v. Rice, 275 U.S. 78, 48 S.Ct. 91, 72 L.Ed. 172, the validity of the doctrine itself was not challenged. 8 In more recent cases, all on the graduate school*492 level, inequality was found in that specific benefits enjoyed by white students were denied to Negro students of the same educational qualifications. State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208; Sipuel v. Board of Regents of University of Oklahoma, 332 U.S. 631, 68 S.Ct. 299, 92 L.Ed. 247; Sweatt v. Painter, 339 U.S. 629, 70 s.Ct. 848, 94 L.Ed. 1114; McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149. In none of these cases was it necessary to re-examine the doctrine to grant relief to the Negro plaintiff. And in Sweatt v. Painter, supra, the Court expressly reserved decision on the question whether Plessy v. Ferguson should be held inapplicable to public education.

In the instant cases, that question is directly presented. Here, unlike Sweatt v. Painter, there are findings below that the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other 'tangible' factors. 9 Our decision, therefore, cannot turn on merely a comparison of these tangible factors in the Negro and white schools involved in each of the cases. We must look instead to the effect of segregation itself on public education.

In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout*493 the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other 'tangible' factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.

In Sweatt v. Painter, supra (339 U.S. 629, 70 S.Ct. 850), in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on 'those qualities which are incapable of objective measurement but which make for greatness in a law school.' In McLaurin v. Oklahoma State Regents, supra (339 U.S. 637, 70 S.Ct. 853), the Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: '* * * his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.'*494 Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs:

'Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to (retard) the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racial(ly) integrated school system.' 10

Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority.11 Any lan*495guage in Plessy v. Ferguson contrary to this finding is rejected.

We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment. 12

Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. On reargument, the consideration of appropriate relief was necessarily subordinated to the primary question—the constitutionality of segregation in public education. We have now announced that such segregation is a denial of the equal protection of the laws. In order that we may have the full assistance of the parties in formulating decrees, the cases will be restored to the docket, and the parties are requested to present further argument on Questions 4 and 5 previously propounded by the Court for the reargument this Term.13 The Attorney General*496 of the United States is again invited to participate. The Attorneys General of the states requiring or permitting segregation in public education will also be permitted to appear as amici curiae upon request to do so by September 15, 1954, and submission of briefs by October 1, 1954.14

It is so ordered.

Cases ordered restored to docket for further argument on question of appropriate decrees.

1

In the Kansas case, Brown v. Board of Education, the plaintiffs are Negro children of elementary school age residing in Topeka. They brought this action in the United States District Court for the District of Kansas to enjoin enforcement of a Kansas statute which permits, but does not require, cities of more than 15,000 population to maintain separate school facilities for Negro and white students. Kan.Gen.Stat.1949, § 72—1724. Pursuant to that authority, the Topeka Board of Education elected to establish segregated elementary schools. Other public schools in the community, however, are operated on a nonsegregated basis. The three-judge District Court, convened under 28 U.S.C. §§ 2281 and 2284, 28 U.S.C.A. §§ 2281, 2284, found that segregation in public education has a detrimental effect upon Negro children, but denied relief on the ground that the Negro and white schools were substantially equal with respect to buildings, transportation, curricula, and educational qualifications of teachers. 98 F.Supp. 797. The case is here on direct appeal under 28 U.S.C. § 1253, 28 U.S.C.A. § 1253.

In the South Carolina case, Briggs v. Elliott, the plaintiffs are Negro children of both elementary and high school age residing in Clarendon County. They brought this action in the United States District Court for the Eastern District of South Carolina to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. S.C.Const. Art. XI, § 7; S.C.Code 1942, § 5377. The three-judge District Court, convened under 28 U.S.C. §§ 2281 and 2284, 28 U.S.C.A. §§ 2281, 2284, denied the requested relief. The court found that the Negro schools were inferior to the white schools and ordered the defendants to begin immediately to equalize the facilities. But the court sustained the validity of the contested provisions and denied the plaintiffs admis-

sion to the white schools during the equalization program. 98 F.Supp. 529. This Court vacated the District Court's judgment and remanded the case for the purpose of obtaining the court's views on a report filed by the defendants concerning the progress made in the equalization program. 342 U.S. 350, 72 S.Ct. 327, 96 L.Ed. 392. On remand, the District Court found that substantial equality had been achieved except for buildings and that the defendants were proceeding to rectify this inequality as well. 103 F.Supp. 920. The case is again here on direct appeal under 28 U.S.C. § 1253, 28 U.S.C.A. § 1253.

In the Virginia case, Davis v. County School Board, the plaintiffs are Negro children of high school age residing in Prince Edward County. They brought this action in the United States District Court for the Eastern District of Virginia to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. Va.Const. § 140; Va.Code 1950, § 22—221. The three-judge District Court, convened under 28 U.S.C. §§ 2281 and 2284, 28 U.S.C.A. §§ 2281, 2284, denied the requested relief. The court found the Negro school inferior in physical plant, curricula, and transportation, and ordered the defendants forthwith to provide substantially equal curricula and transportation and to 'proceed with all reasonable diligence and dispatch to remove' the inequality in physical plant. But, as in the South Carolina case, the court sustained the validity of the contested provisions and denied the plaintiffs admission to the white schools during the equalization program. 103 F.Supp. 337. The case is here on direct appeal under 28 U.S.C. § 1253, 28 U.S.C.A. § 1253.

In the Delaware case, Gebhart v. Belton, the plaintiffs are Negro children of both elementary and high school age residing in New Castle County. They brought this action in the Delaware Court of Chancery to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. Del.Const. Art. X, § 2; Del.Rev.Code, 1935, § 2631, 14 Del.C. § 141. The Chancellor gave judgment for the plaintiffs and ordered their immediate admission to schools previously attended only by white children, on the ground that the Negro schools were inferior with respect to teacher training, pupil-teacher ratio, extracurricular activities, physical plant, and time and distance involved in travel. Del.Ch., 87 A.2d 862. The Chancellor also found that segregation itself results in an inferior education for Negro children (see note 10, infra), but did not rest his decision on that ground. 87 A.2d at page 865. The Chancellor's decree was affirmed by the Supreme Court of Delaware, which intimated, however, that the defendants might be able to obtain a modification of the decree after equalization of the Negro and white schools had been accomplished. 91 A.2d 137, 152. The defendants, contending only that the Delaware courts had erred in ordering the immediate admission of the Negro plaintiffs to the white schools, applied to this Court for certiorari. The writ was granted, 344 U.S. 891, 73 S.Ct. 213, 97 L.Ed. 689. The plaintiffs, who were successful below, did not submit a cross-petition.

2

344 U.S. 1, 73 S.Ct. 1, 97 L.Ed. 3, Id., 344 U.S. 141, 73 S.Ct. 124, 97 L.Ed. 152, Gebhart v. Belton, 344 U.S. 891, 73 S.Ct. 213, 97 L.Ed. 689.

3

345 U.S. 972, 73 S.Ct. 1118, 97 L.Ed. 1388. The Attorney General of the United States participated both Terms as amicus curiae.

4

For a general study of the development of public education prior to the Amendment, see Butts and Cremin, A History of Education in American Culture (1953), Pts. I, II: Cubberley, Public Education in the United States (1934 ed.), cc. II—XII. School practices current at the time of the adoption of the Fourteenth Amendment are described in Butts and Cremin, supra, at 269—275; Cubberley, supra, at 288—339, 408—431; Knight, Public Education in the South (1922), cc. VIII, IX. See also H. Ex. Doc. No. 315, 41st Cong., 2d Sess. (1871). Although the demand for free public schools followed substantially the same pattern in both the North and the South, the development in the South did not begin to gain momentum until about 1850, some twenty years after that in the North. The reasons for the somewhat slower development in the South (e.g., the rural character of the South and the different regional attitudes toward state assistance) are well explained in Cubberley, supra, at 408—423. In the country as a whole, but particularly in the South, the War virtually stopped all progress in public education. Id., at 427—428. The low status of Negro education in all sections of the country, both before and immediately after the War, is described in Beale, A History of Freedom of Teaching in American Schools (1941), 112—132, 175—195. Compulsory school attendance laws were not generally adopted until after the ratification of the Fourteenth Amendment, and it was not until 1918 that such laws were in force in all the states. Cubberley, supra, at 563—565.

5

In re Slaughter-House Cases, 1873, 16 Wall. 36, 67—72, 21 L.Ed. 394; Strauder v. West Virginia, 1880, 100 U.S. 303, 307—308, 25 L.Ed. 664.

'It ordains that no State shall deprive any person of life, liberty, or property, without due process of law, or deny to any person within its jurisdiction the equal protection of the laws. What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color? The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race,—the right to exemption from unfriendly legislation against them distinctively as colored, exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.'

See also State of Virginia v. Rives, 1879, 100 U.S. 313, 318, 25 L.Ed. 667; Ex parte Virginia, 1879, 100 U.S. 339, 344—345, 25 L.Ed. 676.

6

The doctrine apparently originated in Roberts v. City of Boston, 1850, 5 Cush. 198, 59 Mass. 198, 206, upholding school segregation against attack as being violative of a state constitutional guarantee of equality. Segregation in Boston public schools was eliminated in 1855. Mass. Acts 1855, c. 256. But elsewhere in the North segregation in public education has persisted in some communities until recent years. It is apparent that such segregation has long been a nationwide problem, not merely one of sectional concern.

7

See also Berea College v. Kentucky, 1908, 211 U.S. 45, 29 S.Ct. 33, 53 L.Ed. 81.

8

In the Cumming case, Negro taxpayers sought an injunction requiring the defendant school board to discontinue the operation of a high school for white children until the board resumed operation of a high school for Negro children. Similarly, in the Gong Lum case, the plaintiff, a child of Chinese descent, contended only that state authorities had misapplied the doctrine by classifying him with Negro children and requiring him to attend a Negro school.

9

In the Kansas case, the court below found substantial equality as to all such factors. 98 F.Supp. 797, 798. In the South Carolina case, the court below found that the defendants were proceeding 'promptly and in good faith to comply with the court's decree.' 103 F.Supp. 920, 921. In the Virginia case, the court below noted that the equalization program was already 'afoot and progressing,' 103 F.Supp. 337, 341; since then, we have been advised, in the Virginia Attorney General's brief on reargument, that the program has now been completed. In the Delaware case, the court below similarly noted that the state's equalization program was well under way. 91 A.2d 137, 139.

10

A similar finding was made in the Delaware case: 'I conclude from the testimony that in our Delaware society, State-imposed segregation in education itself results in the Negro children, as a class, receiving educational opportunities which are substantially inferior to those available to white children otherwise similarly situated.' 87 A.2d 862, 865.

11

K. B. Clark, Effect of Prejudice and Discrimination on Personality Development (Midcentury White House Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI; Deutscher and Chein, The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, 26 J.Psychol. 259 (1948); Chein, What are the Psychological Effects of Segregation Under Conditions of Equal Facilities?, 3 Int. J. Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination and National Welfare (MacIver, ed., 1949), 44—48; Frazier, The Negro in the United States (1949), 674—681. And see generally Myrdal, An American Dilemma (1944).

12

See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, concerning the Due Process Clause of the Fifth Amendment.

13

'4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment

'(a) would a decree necessarily follow providing that, within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice, or

'(b) may this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions?

'5. On the assumption on which questions 4(a) and (b) are based, and assuming further that this Court will exercise its equity powers to the end described in question 4(b),

'(a) should this Court formulate detailed decrees in these cases;

'(b) if so, what specific issues should the decrees reach;

'(c) should this Court appoint a special master to hear evidence with a view to recommending specific terms for such decrees;

'(d) should this Court remand to the courts of first instance with directions to frame decrees in these cases, and if so what general directions should the decrees of this Court include and what procedures should the courts of first instance follow in arriving at the specific terms of more detailed decrees?'

14

See Rule 42, Revised Rules of this Court, effective July 1, 1954, 28 U.S.C.A.

In the Matter of Anonymous.

Civil Court of the City of New York, New York County,

July 31,1970.

Ira Vcm Leer for petitioner.

Martin Evans, J.

On this petition by a “ transsexual ’ ’ to change petitioner’s obviously male name to a female name, it appears that the petitioner, a member of the male sex, has undergone a series of medical treatments and operations which were designed to, and had the effect of changing the physical appearance of petitioner so that petitioner has, in general, the outward physical aspects usually attributed to a female. It is also shown in the affidavits supporting the application and the court is satisfied that petitioner, as a result of the surgical intervention, is and will continue to be unable to engage in male procreative activities.

What the true sex of a person is, commonly is easy of determination by the application of accepted tests based on visual inspection. Occasionally refinements of these tests are required, as has been reported to have occurred during the Olympic games when chromosome testing was applied to contestants' whose sex was disputed in contests reserved for women.

Hormone imbalance, psychiatric disturbances, and physical misdevelopment are among the factors which give rise to the cases of uncertainty of sexual definition in particular individuals. At the present stage of knowledge there appears to be no universally accepted test which may be applied to some of these uncertain cases but so long as society recognizes only the two disparate sexes, this condition will continue. (See Matter of Anonymous, 57 Misc 2d 813.)

The given name of a person is usually determined by the sex of a person, although there are exceptions to this such as the names Shirley, and Vivian which, although seemingly used to denote a female, are accepted as: occasionally applied to males.

In the instant application, petitioner appears to wish to use a female name, in part for the psychological gratification to be obtained by petitioner and also for the purpose of being accepted by society as a female.

The results1 which may be gained by societal acceptance, if such were to occur, are manifest. Among these are retirement at the age of 62 instead of age 65 under the rules and regulations of the Social Security Administration, improved ratings for life insurance purposes, the automatic right of exclusion from jury duty, possible marital benefits and rights of inheritance which differ, in some States- and1 nations1, according to the sex of the person. Penal violations, such as those set forth in the Penal Law (§§ 130:20,130:38) may be involved.

Whether petitioner has the right to acquire such privileges are matters not within the jurisdiction of this court and therefore may not be determined on this application.

Ordinarily, one has the right at common law to adopt or use any name, so long as fraud or prejudice to others is nonexistent.

It does not appear to the court that, so far as this applicant is concerned, any fraud or prejudice to' others will result.

Theref ore, the application is granted. However the order to be entered hereon will provide that the order shall not be used or relied upon by petitioner as any evidence or judicial determination that the sex of the petitioner has in fact been changed.

In the Matter of Anonymous for Leave to Change His Name.

Civil Court of the City of New York, Queens County,

August 27, 1992

APPEARANCES OF COUNSEL

Anonymous, petitioner pro se.

OPINION OF THE COURT

Nathan L. Berke, J.

This is an application for a change of name made under article 6 of the New York State Civil Rights Law. The petitioner was born a male, is 39 years old and is single. He seeks to change his first name from William, an obvious male name, to Veronica, an obvious female name.

A person may change his or her name with or without court approval. Under common law, a person may use any name at will as long as there is no fraud, misrepresentation or interference with the rights of others. No judicial proceeding is necessary and the change of name is accomplished merely by using the new name. (Matter of Halligan, 46 AD2d 170.)

A person also has the option of seeking court approval of a change of name under article 6 of the Civil Rights Law. The advantages of obtaining court approval of a change of name are that the court order sets a definite date on which the new name is to be assumed, it gives the name change an "aura of propriety and official sanction” and makes it a matter of public record. (Matter of Linda Ann A., 126 Misc 2d 43, 44.)

In considering whether the court should grant the within application for a change of name, the court has the responsibility to determine whether the proposed change will lead to fraud, misrepresentation, confusion, deception or otherwise interfere with the rights of the public. (Matter of "Shipley”, 26 Misc 2d 204.) The petitioner has failed to set forth sufficient facts upon which the court can make such a determination. He merely states in his petition that the purpose of changing his name is "to avoid embarrassing situations due to my sexual preference and physical well being”. The petitioner does not corroborate this claim by competent medical and psychiatric evaluation, including whether he is a transvestite or a transsexual and, if a transsexual, whether he has undergone a sex change operation and is now anatomically and psychologically a woman. (Matter of Anonymous, NYLJ, Apr. 16, 1992, at 28, col 6.) In Matter of Anonymous (57 Misc 2d 813), the court granted a change of name from a "male” name to a "female” name because the petitioner was a male transsexual who had a sex change operation and was anatomically and psychologically a female in fact.

The within application is, therefore, denied because, without such supportive evidence, the change of name from a "male” name to a "female” name would be fraught with danger of deception and confusion and contrary to the public interest. (Matter of Jevens, NYLJ, Oct. 18, 1976, at 15, col 4.)

South Dakota, Petitioner, v. Elizabeth H. Dole, Secretary, United States Department of Transportation.

Argued April 28, 1987.

Decided June 23, 1987.

Syllabus

Title 23 U.S.C. § 158 (1982 ed., Supp. III) directs the Secretary of Transportation to withhold a percentage of otherwise allocable federal highway funds from States "in which the purchase or public possession . . . of any alcoholic beverage by a person who is less than twenty-one years of age is lawful." South Dakota, which permits persons 19 years old or older to purchase beer containing up to 3.2% alcohol, sued in Federal District Court for a declaratory judgment that § 158 violates the constitutional limitations on congressional exercise of the spending power under Art. I, § 8, cl. 1, of the Constitution and violates the Twenty-first Amendment. The District Court rejected the State's claims, and the Court of Appeals affirmed.

Held: Even if Congress, in view of the Twenty-first Amendment, might lack the power to impose directly a national minimum drinking age (a question not decided here), § 158's indirect encouragement of state action to obtain uniformity in the States' drinking ages is a valid use of the spending power. Pp. 206-212.

(a) Incident to the spending power, Congress may attach conditions on the receipt of federal funds. However, exercise of the power is subject to certain restrictions, including that it must be in pursuit of "the general welfare." Section 158 is consistent with such restriction, since the means chosen by Congress to address a dangerous situation—the interstate problem resulting from the incentive, created by differing state drinking ages, for young persons to combine drinking and driving—were reasonably calculated to advance the general welfare. Section 158 also is consistent with the spending power restrictions that, if Congress desires to condition the States' receipt of federal funds, it must do so unambiguously, enabling the States to exercise their choice knowingly, cognizant of the consequences of their participation; and that conditions on federal grants must be related to a national concern (safe interstate travel here). Pp. 206-209.

(b) Nor is § 158 invalidated by the spending power limitation that the conditional grant of federal funds must not be independently barred by other constitutional provisions (the Twenty-first Amendment here). Such limitation is not a prohibition on the indirect achievement of objec*204tives which Congress is not empowered to achieve directly, but, instead, means that the power may not be used to induce the States to engage in activities that would themselves be unconstitutional. Here, if South Dakota were to succumb to Congress' blandishments and raise its drinking age to 21, its action would not violate anyone's constitutional rights. Moreover, the relatively small financial inducement offered by Congress here—resulting from the State's loss of only 5% of federal funds otherwise obtainable under certain highway grant programs—is not so coercive as to pass the point at which pressure turns into compulsion. Pp. 209-212.

791 F.2d 628 (CA 8 1986), affirmed.

REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, POWELL, STEVENS, and SCALIA, JJ., joined. BRENNAN, J., post, p. ----, and O'CONNOR, J., post, p. ----, filed dissenting opinions.

Roger A. Tellinghuisen, Pierre, S.D., for petitioner.

Louis R. Cohen, Washington, D.C., for respondent.

*205Chief Justice REHNQUIST delivered the opinion of the Court.

Petitioner South Dakota permits persons 19 years of age or older to purchase beer containing up to 3.2% alcohol. S.D.Codified Laws § 35-6-27 (1986). In 1984 Congress enacted 23 U.S.C. § 158 (1982 ed., Supp. III), which directs the Secretary of Transportation to withhold a percentage of federal highway funds otherwise allocable from States "in which the purchase or public possession . . . of any alcoholic beverage by a person who is less than twenty-one years of age is lawful." The State sued in United States District Court seeking a declaratory judgment that § 158 violates the constitutional limitations on congressional exercise of the spending power and violates the Twenty-first Amendment to the United States Constitution. The District Court rejected the State's claims, and the Court of Appeals for the Eighth Circuit affirmed. 791 F.2d 628 (1986).

In this Court, the parties direct most of their efforts to defining the proper scope of the Twenty-first Amendment. Relying on our statement in California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97, 110, 100 S.Ct. 937, 946, 63 L.Ed.2d 233 (1980), that the "Twenty-first Amendment grants the States virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system," South Dakota asserts that the setting of minimum drinking ages is clearly within the "core powers" reserved to the States under § 2 of the Amendment.1 Brief for Petitioner 43-44. Section 158, petitioner claims, usurps*206 that core power. The Secretary in response asserts that the Twenty-first Amendment is simply not implicated by § 158; the plain language of § 2 confirms the States' broad power to impose restrictions on the sale and distribution of alcoholic beverages but does not confer on them any power to permit sales that Congress seeks to prohibit. Brief for Respondent 25-26. That Amendment, under this reasoning, would not prevent Congress from affirmatively enacting a national minimum drinking age more restrictive than that provided by the various state laws; and it would follow a fortiori that the indirect inducement involved here is compatible with the Twenty-first Amendment.

These arguments present questions of the meaning of the Twenty-first Amendment, the bounds of which have escaped precise definition. Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 274-276, 104 S.Ct. 3049, 3056-3058, 82 L.Ed.2d 200 (1984); Craig v. Boren, 429 U.S. 190, 206, 97 S.Ct. 451, 461, 50 L.Ed.2d 397 (1976). Despite the extended treatment of the question by the parties, however, we need not decide in this case whether that Amendment would prohibit an attempt by Congress to legislate directly a national minimum drinking age. Here, Congress has acted indirectly under its spending power to encourage uniformity in the States' drinking ages. As we explain below, we find this legislative effort within constitutional bounds even if Congress may not regulate drinking ages directly.

The Constitution empowers Congress to "lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States." Art. I, § 8, cl. 1. Incident to this power, Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power "to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives." Fullilove v. Klutznick, 448 U.S. 448, 474, 100 S.Ct. 2758, 2772, 65 L.Ed.2d 902 (1980) (opinion of Burger, C.J.). See Lau v. Nichols, 414 U.S. 563, 569, 94 S.Ct. 786, 789, 39 L.Ed.2d 1 (1974); Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 295, 78 S.Ct. 1174, 1185, 2 L.Ed.2d 1313 (1958); Oklahoma*207 v. Civil Service Comm'n, 330 U.S. 127, 143-144, 67 S.Ct. 544, 553-554, 91 L.Ed. 794 (1947); Steward Machine Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279 (1937). The breadth of this power was made clear in United States v. Butler, 297 U.S. 1, 66, 56 S.Ct. 312, 319, 80 L.Ed. 477 (1936), where the Court, resolving a longstanding debate over the scope of the Spending Clause, determined that "the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution." Thus, objectives not thought to be within Article I's "enumerated legislative fields," id., at 65, 56 S.Ct., at 319, may nevertheless be attained through the use of the spending power and the conditional grant of federal funds.

The spending power is of course not unlimited, Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17, and n. 13, 101 S.Ct. 1531, 1540 n. 13, 67 L.Ed.2d 694 (1981), but is instead subject to several general restrictions articulated in our cases. The first of these limitations is derived from the language of the Constitution itself: the exercise of the spending power must be in pursuit of "the general welfare." See Helvering v. Davis, 301 U.S. 619, 640-641, 57 S.Ct. 904, 908-909, 81 L.Ed. 1307 (1937); United States v. Butler, supra, at 65, 56 S.Ct., at 319. In considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Congress. Helvering v. Davis, supra, at 640, 645, 57 S.Ct., at 908-909.2 Second, we have required that if Congress desires to condition the States' receipt of federal funds, it "must do so unambiguously . . ., enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation." Pennhurst State School and Hospital v. Halderman, supra, at 17, 101 S.Ct., at 1540. Third, our cases have suggested (without significant elaboration) that conditions on federal grants might be illegitimate if they are unrelated "to the federal interest in particular national projects or programs." Massachusetts v. United States, 435 U.S. 444, 461, 98 S.Ct. 1153, 1164, 55 L.Ed.2d 403*208 (1978) (plurality opinion). See also Ivanhoe Irrigation Dist. v. McCracken, supra, 357 U.S., at 295, 78 S.Ct., at 1185, ("[T]he Federal Government may establish and impose reasonable conditions relevant to federal interest in the project and to the over-all objectives thereof"). Finally, we have noted that other constitutional provisions may provide an independent bar to the conditional grant of federal funds. Lawrence County v. Lead-Deadwood School Dist., 469 U.S. 256, 269-270, 105 S.Ct. 695, 703-704, 83 L.Ed.2d 635 (1985); Buckley v. Valeo, 424 U.S. 1, 91, 96 S.Ct. 612, 669, 46 L.Ed.2d 659 (1976) (per curiam); King v. Smith, 392 U.S. 309, 333, n. 34, 88 S.Ct. 2128, 2141, n. 34, 20 L.Ed.2d 1118 (1968).

South Dakota does not seriously claim that § 158 is inconsistent with any of the first three restrictions mentioned above. We can readily conclude that the provision is designed to serve the general welfare, especially in light of the fact that "the concept of welfare or the opposite is shaped by Congress. . . ." Helvering v. Davis, supra, at 645, 57 S.Ct., at 910. Congress found that the differing drinking ages in the States created particular incentives for young persons to combine their desire to drink with their ability to drive, and that this interstate problem required a national solution. The means it chose to address this dangerous situation were reasonably calculated to advance the general welfare. The conditions upon which States receive the funds, moreover, could not be more clearly stated by Congress. See 23 U.S.C. § 158 (1982 ed., Supp. III). And the State itself, rather than challenging the germaneness of the condition to federal purposes, admits that it "has never contended that the congressional action was . . . unrelated to a national concern in the absence of the Twenty-first Amendment." Brief for Petitioner 52. Indeed, the condition imposed by Congress is directly related to one of the main purposes for which highway funds are expended—safe interstate travel. See 23 U.S.C. § 101(b).3*209 This goal of the interstate highway system had been frustrated by varying drinking ages among the States. A Presidential commission appointed to study alcohol-related accidents and fatalities on the Nation's highways concluded that the lack of uniformity in the States' drinking ages created "an incentive to drink and drive" because "young persons commut[e] to border States where the drinking age is lower." Presidential Commission on Drunk Driving, Final Report 11 (1983). By enacting § 158, Congress conditioned the receipt of federal funds in a way reasonably calculated to address this particular impediment to a purpose for which the funds are expended.

The remaining question about the validity of § 158—and the basic point of disagreement between the parties—is whether the Twenty-first Amendment constitutes an "independent constitutional bar" to the conditional grant of federal funds. Lawrence County v. Lead-Deadwood School Dist., supra, at 269-270, 105 S.Ct., at 702-703. Petitioner, relying on its view that the Twenty-first Amendment prohibits direct regulation of drinking ages by Congress, asserts that "Congress may not use the spending power to regulate that which it is prohibited from regulating directly under the Twenty-first Amendment." Brief for Petitioner 52-53. But our cases show that this "independent constitutional bar" limitation on the spending power is not of the kind petitioner suggests. United States v. Butler, supra, 297 U.S., at 66, 56 S.Ct., at 319, for example, established that the constitutional limitations on Congress when exercising its spending power are less exacting than those on its authority to regulate directly.

*210We have also held that a perceived Tenth Amendment limitation on congressional regulation of state affairs did not concomitantly limit the range of conditions legitimately placed on federal grants. In Oklahoma v. Civil Service Comm'n, 330 U.S. 127, 67 S.Ct. 544, 91 L.Ed. 794 (1947), the Court considered the validity of the Hatch Act insofar as it was applied to political activities of state officials whose employment was financed in whole or in part with federal funds. The State contended that an order under this provision to withhold certain federal funds unless a state official was removed invaded its sovereignty in violation of the Tenth Amendment. Though finding that "the United States is not concerned with, and has no power to regulate, local political activities as such of state officials," the Court nevertheless held that the Federal Government "does have power to fix the terms upon which its money allotments to states shall be disbursed." Id., at 143, 67 S.Ct., at 553. The Court found no violation of the State's sovereignty because the State could, and did, adopt "the 'simple expedient' of not yielding to what she urges is federal coercion. The offer of benefits to a state by the United States dependent upon cooperation by the state with federal plans, assumedly for the general welfare, is not unusual." Id., at 143-144, 67 S.Ct., at 553-554 (citation omitted). See also Steward Machine Co. v. Davis, 301 U.S., at 595, 57 S.Ct., at 894 ("There is only a condition which the state is free at pleasure to disregard or to fulfill"); Massachusetts v. Mellon, 262 U.S. 447, 482, 43 S.Ct. 597, 599, 67 L.Ed. 1078 (1923).

These cases establish that the "independent constitutional bar" limitation on the spending power is not, as petitioner suggests, a prohibition on the indirect achievement of objectives which Congress is not empowered to achieve directly. Instead, we think that the language in our earlier opinions stands for the unexceptionable proposition that the power may not be used to induce the States to engage in activities that would themselves be unconstitutional. Thus, for example, a grant of federal funds conditioned on invidiously discriminatory state action or the infliction of cruel and unusual punishment would be an illegitimate exercise of the Con*211gress' broad spending power. But no such claim can be or is made here. Were South Dakota to succumb to the blandishments offered by Congress and raise its drinking age to 21, the State's action in so doing would not violate the constitutional rights of anyone.

Our decisions have recognized that in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which "pressure turns into compulsion." Steward Machine Co. v. Davis, supra, 301 U.S., at 590, 57 S.Ct., at 892. Here, however, Congress has directed only that a State desiring to establish a minimum drinking age lower than 21 lose a relatively small percentage of certain federal highway funds. Petitioner contends that the coercive nature of this program is evident from the degree of success it has achieved. We cannot conclude, however, that a conditional grant of federal money of this sort is unconstitutional simply by reason of its success in achieving the congressional objective.

When we consider, for a moment, that all South Dakota would lose if she adheres to her chosen course as to a suitable minimum drinking age is 5% of the funds otherwise obtainable under specified highway grant programs, the argument as to coercion is shown to be more rhetoric than fact. As we said a half century ago in Steward Machine Co. v. Davis:

"[E]very rebate from a tax when conditioned upon conduct is in some measure a temptation. But to hold that motive or temptation is equivalent to coercion is to plunge the law in endless difficulties. The outcome of such a doctrine is the acceptance of a philosophical determinism by which choice becomes impossible. Till now the law has been guided by a robust common sense which assumes the freedom of the will as a working hypothesis in the solution of its problems." 301 U.S., at 589-590, 57 S.Ct., at 891-892.

Here Congress has offered relatively mild encouragement to the States to enact higher minimum drinking ages than they would otherwise choose. But the enactment of such laws remains the prerogative of the States not merely in the*212ory but in fact. Even if Congress might lack the power to impose a national minimum drinking age directly, we conclude that encouragement to state action found in § 158 is a valid use of the spending power. Accordingly, the judgment of the Court of Appeals is

Affirmed.

1

Section 2 of the Twenty-first Amendment provides: "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."

2

The level of deference to the congressional decision is such that the Court has more recently questioned whether "general welfare" is a judicially enforceable restriction at all. See Buckley v. Valeo, 424 U.S. 1, 90-91, 96 S.Ct. 612, 668-669, 46 L.Ed.2d 659 (1976) (per curiam).

3

Our cases have not required that we define the outer bounds of the "germaneness" or "relatedness" limitation on the imposition of conditions under the spending power. Amici urge that we take this occasion to establish that a condition on federal funds is legitimate only if it relates directly to the purpose of the expenditure to which it is attached. See Brief for National Conference of State Legislatures et al. as Amici Curiae 10. Because petitioner has not sought such a restriction, see Tr. of Oral Arg. 19-21, and because we find any such limitation on conditional federal grants satisfied in this case in any event, we do not address whether conditions less directly related to the particular purpose of the expenditure might be outside the bounds of the spending power.

Justice BRENNAN, dissenting.

I agree with Justice O'CONNOR that regulation of the minimum age of purchasers of liquor falls squarely within the ambit of those powers reserved to the States by the Twenty-first Amendment. See post, at 218. Since States possess this constitutional power, Congress cannot condition a federal grant in a manner that abridges this right. The Amendment, itself, strikes the proper balance between federal and state authority. I therefore dissent.

Justice O'CONNOR, dissenting.

The Court today upholds the National Minimum Drinking Age Amendment, 23 U.S.C. § 158 (1982 ed., Supp. III), as a valid exercise of the spending power conferred by Article I, § 8. But § 158 is not a condition on spending reasonably related to the expenditure of federal funds and cannot be justified on that ground. Rather, it is an attempt to regulate the sale of liquor, an attempt that lies outside Congress' power to regulate commerce because it falls within the ambit of § 2 of the Twenty-first Amendment.

My disagreement with the Court is relatively narrow on the spending power issue: it is a disagreement about the application of a principle rather than a disagreement on the principle itself. I agree with the Court that Congress may attach conditions on the receipt of federal funds to further "the federal interest in particular national projects or programs." Massachusetts v. United States, 435 U.S. 444, 461, 98 S.Ct. 1153, 1164, 55 L.Ed.2d 403 (1978); see Oklahoma v. Civil Service Comm'n, 330 U.S. 127, 143-144, 67 S.Ct. 544, 553-554, 91 L.Ed. 794 (1947); Steward Machine Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279 (1937). I also subscribe to the established proposition*213 that the reach of the spending power "is not limited by the direct grants of legislative power found in the Constitution." United States v. Butler, 297 U.S. 1, 66, 56 S.Ct. 312, 319, 80 L.Ed. 477 (1936). Finally, I agree that there are four separate types of limitations on the spending power: the expenditure must be for the general welfare, Helvering v. Davis, 301 U.S. 619, 640-641, 57 S.Ct. 904, 908-909, 81 L.Ed. 1307 (1937), the conditions imposed must be unambiguous, Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531 (1981), they must be reasonably related to the purpose of the expenditure, Massachusetts v. United States, supra, 435 U.S., at 461, 98 S.Ct., at 1164, and the legislation may not violate any independent constitutional prohibition, Lawrence County v. Lead-Deadwood School Dist., 469 U.S. 256, 269-270, 105 S.Ct. 695, 703-704, 83 L.Ed.2d 635 (1985). Ante, at 207-208. Insofar as two of those limitations are concerned, the Court is clearly correct that § 158 is wholly unobjectionable. Establishment of a national minimum drinking age certainly fits within the broad concept of the general welfare and the statute is entirely unambiguous. I am also willing to assume, arguendo, that the Twenty-first Amendment does not constitute an "independent constitutional bar" to a spending condition. See ante, at 209-211.

But the Court's application of the requirement that the condition imposed be reasonably related to the purpose for which the funds are expended is cursory and unconvincing. We have repeatedly said that Congress may condition grants under the spending power only in ways reasonably related to the purpose of the federal program. Massachusetts v. United States, supra, 435 U.S., at 461, 98 S.Ct., at 1164; Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 295, 78 S.Ct. 1174, 1185, 2 L.Ed.2d 313 (1958) (the United States may impose "reasonable conditions relevant to federal interest in the project and to the over-all objectives thereof"); Steward Machine Co. v. Davis, supra, 301 U.S. at 590, 57 S.Ct., at 892 ("We do not say that a tax is valid, when imposed by act of Congress, if it is laid upon the condition that a state may escape its operation through the adoption of a statute unrelated in subject matter to activities fairly within the scope of national policy and power"). In my view, establishment of a minimum drinking*214 age of 21 is not sufficiently related to interstate highway construction to justify so conditioning funds appropriated for that purpose.

In support of its contrary conclusion, the Court relies on a supposed concession by counsel for South Dakota that the State "has never contended that the congressional action was . . . unrelated to a national concern in the absence of the Twenty-first Amendment." Brief for Petitioner 52. In the absence of the Twenty-first Amendment, however, there is a strong argument that the Congress might regulate the conditions under which liquor is sold under the commerce power, just as it regulates the sale of many other commodities that are in or affect interstate commerce. The fact that the Twenty-first Amendment is crucial to the State's argument does not, therefore, amount to a concession that the condition imposed by § 158 is reasonably related to highway construction. The Court also relies on a portion of the argument transcript in support of its claim that South Dakota conceded the reasonable relationship point. Ante, at 208—209, n. 3, citing Tr. of Oral Arg. 19-21. But counsel's statements there are at best ambiguous. Counsel essentially said no more than that he was not prepared to argue the reasonable relationship question discussed at length in the Brief for the National Conference of State Legislatures et al. as Amici Curiae.

Aside from these "concessions" by counsel, the Court asserts the reasonableness of the relationship between the supposed purpose of the expenditure—"safe interstate travel"—and the drinking age condition. Ante, at 208. The Court reasons that Congress wishes that the roads it builds may be used safely, that drunken drivers threaten highway safety, and that young people are more likely to drive while under the influence of alcohol under existing law than would be the case if there were a uniform national drinking age of 21. It hardly needs saying, however, that if the purpose of § 158 is to deter drunken driving, it is far too over and under-inclusive. It is over-inclusive because it stops teenagers from drinking even when they are not about to drive on in*215terstate highways. It is under-inclusive because teenagers pose only a small part of the drunken driving problem in this Nation. See, e.g., 130 Cong.Rec. 18648 (1984) (remarks of Sen. Humphrey) ("Eighty-four percent of all highway fatalities involving alcohol occur among those whose ages exceed 21"); id., at 18651 (remarks of Sen. McClure) ("Certainly, statistically, if you use that one set of statistics, then the mandatory drinking age ought to be raised at least to 30"); ibid. (remarks of Sen. Symms) ("[M]ost of the studies point out that the drivers of age 21-24 are the worst offenders").

When Congress appropriates money to build a highway, it is entitled to insist that the highway be a safe one. But it is not entitled to insist as a condition of the use of highway funds that the State impose or change regulations in other areas of the State's social and economic life because of an attenuated or tangential relationship to highway use or safety. Indeed, if the rule were otherwise, the Congress could effectively regulate almost any area of a State's social, political, or economic life on the theory that use of the interstate transportation system is somehow enhanced. If, for example, the United States were to condition highway moneys upon moving the state capital, I suppose it might argue that interstate transportation is facilitated by locating local governments in places easily accessible to interstate highways—or, conversely, that highways might become overburdened if they had to carry traffic to and from the state capital. In my mind, such a relationship is hardly more attenuated than the one which the Court finds supports § 158. Cf. Tr. of Oral Arg. 39 (counsel for the United States conceding that to condition a grant upon adoption of a unicameral legislature would violate the "germaneness" requirement).

There is a clear place at which the Court can draw the line between permissible and impermissible conditions on federal grants. It is the line identified in the Brief for the National Conference of State Legislatures et al. as Amici Curiae:

*216 "Congress has the power to spend for the general welfare, it has the power to legislate only for delegated purposes. . . .

"The appropriate inquiry, then, is whether the spending requirement or prohibition is a condition on a grant or whether it is regulation. The difference turns on whether the requirement specifies in some way how the money should be spent, so that Congress' intent in making the grant will be effectuated. Congress has no power under the Spending Clause to impose requirements on a grant that go beyond specifying how the money should be spent. A requirement that is not such a specification is not a condition, but a regulation, which is valid only if it falls within one of Congress' delegated regulatory powers." Id., at 19-20.

This approach harks back to United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477 (1936), the last case in which this Court struck down an Act of Congress as beyond the authority granted by the Spending Clause. There the Court wrote that "[t]here is an obvious difference between a statute stating the conditions upon which moneys shall be expended and one effective only upon assumption of a contractual obligation to submit to a regulation which otherwise could not be enforced." Id., at 73, 56 S.Ct., at 322. The Butler Court saw the Agricultural Adjustment Act for what it was—an exercise of regulatory, not spending, power. The error in Butler was not the Court's conclusion that the Act was essentially regulatory, but rather its crabbed view of the extent of Congress' regulatory power under the Commerce Clause. The Agricultural Adjustment Act was regulatory but it was regulation that today would likely be considered within Congress' commerce power. See, e.g., Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964); Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942).

While Butler's authority is questionable insofar as it assumes that Congress has no regulatory power over farm pro*217duction, its discussion of the spending power and its description of both the power's breadth and its limitations remain sound. The Court's decision in Butler also properly recognizes the gravity of the task of appropriately limiting the spending power. If the spending power is to be limited only by Congress' notion of the general welfare, the reality, given the vast financial resources of the Federal Government, is that the Spending Clause gives "power to the Congress to tear down the barriers, to invade the states' jurisdiction, and to become a parliament of the whole people, subject to no restrictions save such as are self-imposed." United States v. Butler, supra, 297 U.S., at 78, 56 S.Ct., at 324. This, of course, as Butler held, was not the Framers' plan and it is not the meaning of the Spending Clause.

Our later cases are consistent with the notion that, under the spending power, the Congress may only condition grants in ways that can fairly be said to be related to the expenditure of federal funds. For example, in Oklahoma v. CSC, 330 U.S. 127, 67 S.Ct. 544, 91 L.Ed. 794 (1947), the Court upheld application of the Hatch Act to a member of the Oklahoma State Highway Commission who was employed in connection with an activity financed in part by loans and grants from a federal agency. This condition is appropriately viewed as a condition relating to how federal moneys were to be expended. Other conditions that have been upheld by the Court may be viewed as independently justified under some regulatory power of the Congress. Thus, in Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980), the Court upheld a condition on federal grants that 10% of the money be "set aside" for contracts with minority business enterprises. But the Court found that the condition could be justified as a valid regulation under the commerce power and § 5 of the Fourteenth Amendment. Id., at 476, 478, 100 S.Ct., at 2775. See also Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 787, 39 L.Ed.2d 1 (1974) (upholding nondiscrimination provisions applied to local schools receiving federal funds).

*218This case, however, falls into neither class. As discussed above, a condition that a State will raise its drinking age to 21 cannot fairly be said to be reasonably related to the expenditure of funds for highway construction. The only possible connection, highway safety, has nothing to do with how the funds Congress has appropriated are expended. Rather than a condition determining how federal highway money shall be expended, it is a regulation determining who shall be able to drink liquor. As such it is not justified by the spending power.

Of the other possible sources of congressional authority for regulating the sale of liquor only the commerce power comes to mind. But in my view, the regulation of the age of the purchasers of liquor, just as the regulation of the price at which liquor may be sold, falls squarely within the scope of those powers reserved to the States by the Twenty-first Amendment. Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 716, 104 S.Ct. 2694, 2709, 81 L.Ed.2d 580 (1984). As I emphasized in 324 Liquor Corp. v. Duffy, 479 U.S. 335, 356, 107 S.Ct. 720, 732, 93 L.Ed.2d 667 (1987) (dissenting opinion):

"The history of the Amendment strongly supports Justice Black's view that the Twenty-first Amendment was intended to return absolute control of the liquor trade to the States, and that the Federal Government could not use its Commerce Clause powers to interfere in any manner with the States' exercise of the power conferred by the Amendment."

Accordingly, Congress simply lacks power under the Commerce Clause to displace state regulation of this kind. Ibid.

The immense size and power of the Government of the United States ought not obscure its fundamental character. It remains a Government of enumerated powers. McCulloch v. Maryland, 4 Wheat. 316, 405, 4 L.Ed. 579 (1819). Because 23 U.S.C. § 158 (1982 ed., Supp. III) cannot be justified as an exercise of any power delegated to the Congress, it is not authorized by the Constitution. The Court errs in holding it to be the law of the land, and I respectfully dissent.

[46 Wn.2d 198] [279 P.2d 1092] Kennett, McCutcheon & Soderland, Seattle, James P. Healy, Tacoma, for appellant.

Frederick J. Orth, Rode, Cook, Watkins & Orth, Seattle, for respondent.

HILL, Justice.

The liability of an infant for an alleged battery is presented to this court for the first time. Brian [46 Wn.2d 199] Dailey (age five years, nine months) was visiting with Naomi Garratt, an adult and a sister of the plaintiff, Ruth Garratt, likewise an adult, in the back yard of the plaintiff's home, on July 16, 1951. It is plaintiff's contention that she came out into the back yard to talk with Naomi and that, as she started to sit down in a wood and canvas lawn chair, Brian deliberately pulled it out from under her. The only one of the three persons present so testifying was Naomi Garratt. (Ruth Garratt, the plaintiff, did not testify as to how or why she fell.) The trial court, unwilling to accept this testimony, adopted instead Brian Dailey's version of what happened, and made the following findings:

'III. * * * that while Naomi Garratt and Brian Dailey were in the back yard the plaintiff, Ruth Garratt, came out of her house into the back yard. Some time subsequent thereto defendant, Brian Dailey, picked up a lightly built wood and canvas lawn chair which was then and there located in the back yard of the above described premises, moved it sideways a few feet and seated himself therein, at which time he discovered the plaintiff, Ruth Garratt, about to sit down at the place where the lawn chair had formerly been, at which time he hurriedly got up from the chair and attempted to move it toward Ruth Garratt to aid her in sitting down in the chair; that due to the defendant's small size and lack of dexterity he was unable to get the lawn chair under the plaintiff in time to prevent her from falling to the ground. That plaintiff fell to the ground and sustained a fracture of her hip, and other injuries and damages as hereinafter set forth.

'IV. That the preponderance of the evidence in this case establishes that when the defendant, Brian Dailey, moved the chair in question he did not have any wilful or unlawful purpose in doing so; that he did not have any intent to injure the plaintiff, or any intent to bring about any unauthorized or offensive contact with her person or any objects appurtenant thereto; that the circumstances which immediately preceded the fall of the plaintiff established that the defendant, Brian Dailey, did not have purpose, intent or design to perform a prank or to effect an assault and battery upon the person of the plaintiff.' (Italics ours, for a purpose hereinafter indicated.)

It is conceded that Ruth Garratt's fall resulted in a fractured hip and other painful and serious injuries. To obviate [46 Wn.2d 200] the necessity of a retrial in the event this court determines that she was entitled to a judgment against Brian Dailey, the amount of [279 P.2d 1093] her damage was found to be $11,000. Plaintiff appeals from a judgment dismissing the action and asks for the entry of a judgment in that amount or a new trial.

The authorities generally, but with certain notable exceptions, see Bohlen, 'Liability in Tort of Infants and Insane Persons,' 23 Mich.L.Rev. 9, state that when a minor has committed a tort with force he is liable to be proceeded against as any other person would be. Paul v. Hummel, 1868, 43 Mo. 119, 97 Am.Dec. 381; Huchting v. Engel, 1863, 17 Wis. 230, 84 Am.Dec. 741; Briese v. Maechtle, 1911, 146 Wis. 89, 130 N.W. 893, 35 L.R.A.,N.S., 574; 1 Cooley on Torts (4th ed.) 194, § 66; Prosser on Torts 1085, § 108; 2 Kent's Commentaries 241; 27 Am.Jur. 812, Infants, § 90.

In our analysis of the applicable law, we start with the basis premise that Brian, whether five or fifty-five, must have committed some wrongful act before he could be liable for appellant's injuries.

The trial court's finding that Brian was a visitor in the Garratt back yard is supported by the evidence and negatives appellant's assertion that Brian was a trespasser and had no right to touch, move, or sit in any chair in that yard, and that contention will not receive further consideration.

It is urged that Brian's action in moving the chair constituted a battery. A definition (not all-inclusive but sufficient for out purpose) of a battery is the intentional infliction of a harmful bodily contact upon another. The rule that determines liability for battery is given in 1 Restatement, Torts, 29, § 13, as:

'An act which, directly or indirectly, is the legal cause of a harmful contact with another's person makes the actor liable to the other, if

'(a) the act is done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to the other or a third person, and

'(b) the contact is not consented to by the other or the [46 Wn.2d 201] other's consent thereto is procured by fraud or duress, and

'(c) the contact is not otherwise privileged.'

We have in this case no question of consent or privilege. We therefore proceed to an immediate consideration of intent and its place in the law of battery. In the comment on clause (a), the Restatement says:

'Character of actor's intention. In order that an act may be done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to a particular person, either the other or a third person, the act must be done for the purpose of causing the contact or apprehension or with knowledge on the part of the actor that such contact or apprehension is substantially certain to be produced.' See, also, Prosser on Torts 41, § 8.

We have here the conceded volitional act of Brian, i. e., the moving of a chair. Had the plaintiff proved to the satisfaction of the trial court that Brian moved the chair while she was in the act of sitting down, Brian's action would patently have been for the purpose or with the intent of causing the plaintiff's bodily contact with the ground, and she would be entitled to a judgment against him for the resulting damages. Vosburg v. Putney, 1891, 80 Wis. 523, 50 N.W. 403, 14 L.R.A. 226; Briese v. Maechtle, supra.

The plaintiff based her case on that theory, and the trial court held that she failed in her proof and accepted Brian's version of the facts rather than that given by the eyewitness who testified for the plaintiff. After the trial court determined that the plaintiff had not established her theory of a battery (i. e., that Brian had pulled the chair out from under the plaintiff while she was in the act of sitting down), it then became concerned with whether a battery was established under the facts as it found them to be.

In this connection, we quote another portion of the comment on the 'Character of actor's intention,' relating to clause (a) of the rule from the Restatement heretofore set forth:

'It is not enough that the act itself is intentionally done and this, even [279 P.2d 1094] though the actor realizes or should realize [46 Wn.2d 202] that it contains a very grave risk of bringing about the contact or apprehension. Such realization may make the actor's conduct negligent or even reckless but unless he realizes that to a substantial certainty, the contact or apprehension will result, the actor has not that intention which is necessary to make him liable under the rule stated in this section.'

A battery would be established if, in addition to plaintiff's fall, it was proved that, when Brian moved the chair, he knew with substantial certainty that the plaintiff would attempt to sit down where the chair had been. If Brian had any of the intents which the trial court found, in the italicized portions of the findings of fact quoted above, that he did not have, he would of course have had the knowledge to which we have referred. The mere absence of any intent to injure the plaintiff or to play a prank on her or to embarrass her, or to commit an assault and battery on her would not absolve him from liability if in fact he had such knowledge. Mercer v. Corbin, 1889, 117 Ind. 450, 20 N.E. 132, 3 L.R.A. 221. Without such knowledge, there would be nothing wrongful about Brian's act in moving the chair and, there being no wrongful act, there would be no liability.

While a finding that Brian had no such knowledge can be inferred from the findings made, we believe that before the plaintiff's action in such a case should be dismissed there should be no question but that the trial court had passed upon that issue; hence, the case should be remanded for clarification of the findings to specifically cover the question of Brian's knowledge, because intent could be inferred therefrom. If the court finds that he had such knowledge the necessary intent will be established and the plaintiff will be entitled to recover, even though there was no purpose to injure or embarrass the plaintiff. Vosburg v. Putney, supra. If Brian did not have such knowledge, there was no wrongful act by him and the basic premise of liability on the theory of a battery was not established.

It will be noted that the law of battery as we have [46 Wn.2d 203] discussed it is the law applicable to adults, and no significance has been attached to the fact that Brian was a child less than six years of age when the alleged battery occurred. The only circumstance where Brian's age is of any consequence is in determining what he knew, and there his experience, capacity, and understanding are of course material.

From what has been said, it is clear that we find no merit in plaintiff's contention that we can direct the entry of a judgment for $11,000 in her favor on the record now before us.

Nor do we find any error in the record that warrants a new trial.

What we have said concerning intent in relation to batteries caused by the physical contact of a plaintiff with the ground or floor as the result of the removal of a chair by a defendant furnishes the basis for the answer to the contention of the plaintiff that the trial court changed its theory of the applicable law after the trial, and that she was prejudiced thereby.

It is clear to us that there was no change in theory so far as the plaintiff's case was concerned. The trial court consistently from beginning to end recognized that if the plaintiff proved what she alleged and her eyewitness testified, namely, that Brian pulled the chair out from under the plaintiff while she was in the act of sitting down and she fell to the ground in consequence thereof, a battery was established. Had she proved that state of facts, then the trial court's comments about inability to find any intent (from the connotation of motivation) to injure or embarrass the plaintiff, and the italicized portions of his findings as above set forth could have indicated a change of theory. But what must be recognized is that the trial court was trying in those comments and in the italicized findings to express the law applicable, not to the facts as the plaintiff contended they were, but to the facts as the trial court found them to be. The remand for clarification gives the plaintiff an opportunity to secure a judgment even though the trial court did not accept her version of the facts, if from all [279 P.2d 1095] the evidence, the trial court can find that Brian knew with substantial [46 Wn.2d 204] certainty that the plaintiff intended to sit down where the chair had been before he moved it, and still without reference to motivation.

The plaintiff-appellant urges as another ground for a new trial that she was refused the right to cross-examine Brian. Some twenty pages of cross-examination indicate that there was no refusal of the right of cross-examination. The only occasion that impressed us as being a restriction on the right of cross-examination occurred when plaintiff was attempting to develop the fact that Brian had had chairs pulled out from under him at kindergarten and had complained about it. Plaintiff's counsel sought to do this by asking questions concerning statements made at Brian's home and in a court reporter's office. When objections were sustained, counsel for plaintiff stated that he was asking about the conversations to refresh the recollection of the child, and made an offer of proof. The fact that plaintiff was seeking to develop came into the record by the very simple method of asking Brian what had happened at kindergarten. Consequently what plaintiff offered to prove by the cross-examination is in the record, and the restriction imposed by the trial court was not prejudicial.

It is argued that some courts predicate an infant's liability for tort upon the basis of the existence of an estate in the infant; hence it was error for the trial court to refuse to admit as an exhibit a policy of liability insurance as evidence that there was a source from which a judgment might be satisfied. In our opinion the liability of an infant for his tort does not depend upon the size of his estate or even upon the existence of one. That is a matter of concern only to the plaintiff who seeks to enforce a judgment against the infant.

The motion for a new trial was also based on newly discovered evidence. The case having been tried to the court, the trial judge was certainly in a position to know whether that evidence would change the result on a new trial. It was not of a character that would make the denial of the motion an abuse of discretion.

[46 Wn.2d 205] The plaintiff complains, and with some justice, that she was not permitted to take a pretrial deposition of the defendant Brian Dailey. While Rule of Pleading, Practice, and Procedure 30(b), 34A Wash.2d 91, gives the trial court the right 'for good cause shown' to prevent the taking of a deposition, it seems to us that though it might well have been taken under the supervision of the court to protect the child from leading, misleading and confusing questions, the deposition should have been allowed, if the child was to be permitted to testify at the trial. If, however, the refusal to allow the taking of the deposition was an abuse of discretion, and that we are not prepared to hold, it has not been established that the refusal constituted prejudicial error. (Parenthetically we would add that the right to a review of the rulings on pretrial procedure or with respect to depositions or discovery or incidental procedural motions preceding the trial seems to be limited to an appeal from a final judgment, 2 Barron and Holtzoff, Federal Practice and Procedure (Rules Ed.) § 803; 3 Id. § 1552, and realistically such a review is illusory for the reasons given by Prof. David W. Louisell. See 36 Minn.L.Rev. 654.)

The cause is remanded for clarification, with instructions to make definite findings on the issue of whether Brian Dailey knew with substantial certainty that the plaintiff would attempt to sit down where the chair which he moved had been, and to change the judgment if the findings warrant it.

Costs on this appeal will abide the ultimate decision of the superior court. If a judgment is entered for the plaintiff, Ruth Garratt, appellant here, she shall be entitled to her costs on this appeal. If, however, the judgment of dismissal remains unchanged, the respondent will be entitled to recover his costs on this appeal.

Remanded for clarification.

SCHWELLENBACH, DONWORTH, and WEAVER, JJ., concur.

Board of the Trustees of University of Alabama et al., Petitioners, v. Patricia Garrett et al.

Argued October 11, 2000.

Decided February 21, 2001.

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

*358 Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, and Thomas, JJ., joined. Kennedy, J., filed a concurring opinion, in which O'Connor, J., joined, post, p. 374. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined, post, p. 376.

Jeffrey S. Sutton argued the cause for petitioners. With him on the briefs were Bill Pryor, Attorney General of Alabama, Alice Ann Byrne and Margaret L. Fleming,Assistant Attorneys General, Gregory G. Katsas, and Lisa Huggins.

Michael H. Gottesman argued the cause for respondents. With him on the brief were Arlene Mayerson, Laurence Gold, Deborah Mattison, Sandra Reiss, Ira Burnim, and Jennifer Mathis.

Solicitor General Waxman argued the cause for the United States as amicus curiae urging affirmance. With *359 him on the brief were Assistant Attorney General Lee, Deputy Solicitor General Underwood, Patricia A. Millett, Jessica Dunsay Silver, and Seth M. Galanter.*

*

 Briefs of amici curiae urging reversal were filed for the State of Hawaii et al. by Audrey J. Anderson, Earl I. Anzai, Attorney General of Hawaii, Charles F. Fell, Senior Deputy Attorney General, and Nancy Albano, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Mark Pryor of Arkansas, Alan G. Lance of Idaho, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Betty D. Montgomery of Ohio, and Paul G. Summers of Tennessee; for the Criminal Justice Legal Foundation by Kent S. Scheidegger; and for the Pacific Legal Foundation by Anne M. Hayes and M. Reed Hopper.

Briefs of amici curiae urging affirmance were filed for the State of Minnesota et al. by Mike Hatch,Attorney General of Minnesota, Alan I. Gilbert, Chief Deputy Attorney General, and W. Karl Hansen,Assistant Attorney General, and by the Attorneys General for their respective States as follows: Janet Napolitano of Arizona, Richard Blumenthal of Connecticut, James E. Ryan of Illinois, Thomas J. Miller of Iowa, A. B. "Ben" Chandler III of Kentucky, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Jeremiah W. (Jay) Nixon of Missouri, Patricia A. Madrid of New Mexico, Eliot Spitzer of New York, Heidi Heitkamp of North Dakota, William H. Sorrell of Vermont, and Christine O. Gregoire of Washington; for the American Association on Mental Retardation et al. by James W. Ellis, Michael B. Browde, and Christian G. Fritz; for the American Association of People with Disabilities et al. by John Townsend Rich; for the American Bar Association by Robert Lewin, James A. Shifren, and Claude G. Szyfer; for the American Cancer Society by Daniel G. Jarcho, Michael J. Haungs, William J. Dalton,and Mary P. Rouvelas; for the Lambda Legal Defense & Education Fund, Inc., et al. by Catherine A. Hanssens and David S. Buckel; for the National Association of Protection and Advocacy Systems et al. by Mark E. Haddad, Jacqueline G. Cooper, and Sharon Masling; for the National Council on Disability by Robert L. Burgdorf, Jr.; for Self-Advocates Becoming Empowered et al. by Thomas K. Gilhool, Michael Churchill, Barbara Ransom, and Max Lapertosa; for the Voice of the Retarded et al. by William J. Burke and Tamie Hopp; for Senator Robert Dole et al. by Chai R. Feldblum; and for Law Professors by Leo G. Rydzewski.

Briefs of amici curiae were filed for the Association of State Correctional Administrators by Marci A. Hamilton; for the Coalition for Local Sovereignty by Kenneth B. Clark; for the National Employment Lawyers Association et al. by Daniel F. Goldstein, C. Christopher Brown, and Merl H. Wayman; for Paralyzed Veterans of America et al. by Ted G. Dane and Eve Hill; for the Southern Poverty Law Center by Pamela L. Sumners and Elizabeth J. Hubertz; and for Morton Horwitz et al. by Kenneth W. Brothers, Elizabeth B. McCallum, and Claudia Center. A. Stephen Hut, Jr., filed a statement by former President George H. W. Bush as amicus curiae.

*360 Chief Justice Rehnquist delivered the opinion of the Court.

We decide here whether employees of the State of Alabama may recover money damages by reason of the State's failure to comply with the provisions of Title I of the Americans with Disabilities Act of 1990 (ADA or Act), 104 Stat. 330, 42 U. S. C. §§ 12111-12117.1 We hold that such suits are barred by the Eleventh Amendment.

The ADA prohibits certain employers, including the States, from "discriminat[ing] against a qualified individual *361 with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." §§ 12112(a), 12111(2), (5), (7). To this end, the Act requires employers to "mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the [employer's] business." § 12112(b)(5)(A).

"`[R]easonable accommodation' may include— "(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities." § 12111(9).

The Act also prohibits employers from "utilizing standards, criteria, or methods of administration . . . that have the effect of discrimination on the basis of disability." § 12112(b)(3)(A).

The Act defines "disability" to include "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." § 12102(2). A disabled individual is otherwise "qualified" if he or she, "with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." § 12111(8).

*362 Respondent Patricia Garrett, a registered nurse, was employed as the Director of Nursing, OB/Gyn/Neonatal Services, for the University of Alabama in Birmingham Hospital. See App. 31, 38. In 1994, Garrett was diagnosed with breast cancer and subsequently underwent a lumpectomy, radiation treatment, and chemotherapy. See id., at 38. Garrett's treatments required her to take substantial leave from work. Upon returning to work in July 1995, Garrett's supervisor informed Garrett that she would have to give up her Director position. See id., at 39. Garrett then applied for and received a transfer to another, lower paying position as a nurse manager. See ibid.

Respondent Milton Ash worked as a security officer for the Alabama Department of Youth Services (Department). See id., at 8. Upon commencing this employment, Ash informed the Department that he suffered from chronic asthma and that his doctor recommended he avoid carbon monoxide and cigarette smoke, and Ash requested that the Department modify his duties to minimize his exposure to these substances. See ibid. Ash was later diagnosed with sleep apnea and requested, again pursuant to his doctor's recommendation, that he be reassigned to daytime shifts to accommodate his condition. See id., at 9. Ultimately, the Department granted none of the requested relief. See id., at 8-9. Shortly after Ash filed a discrimination claim with the Equal Employment Opportunity Commission, he noticed that his performance evaluations were lower than those he had received on previous occasions. See id., at 9.

Garrett and Ash filed separate lawsuits in the District Court, both seeking money damages under the ADA.2 Petitioners moved for summary judgment, claiming that the ADA exceeds Congress' authority to abrogate the State's Eleventh Amendment immunity. See 989 F. Supp. 1409, 1410 (ND Ala. 1998). In a single opinion disposing of both *363 cases, the District Court agreed with petitioners' position and granted their motions for summary judgment. See id., at 1410, 1412. The cases were consolidated on appeal to the Eleventh Circuit. The Court of Appeals reversed, 193 F. 3d 1214 (1999), adhering to its intervening decision in Kimel v. State Bd. of Regents, 139 F. 3d 1426, 1433 (CA11 1998), aff'd, 528 U. S. 62 (2000), that the ADA validly abrogates the States' Eleventh Amendment immunity.

We granted certiorari, 529 U. S. 1065 (2000), to resolve a split among the Courts of Appeals on the question whether an individual may sue a State for money damages in federal court under the ADA.

I

The Eleventh Amendment provides:

"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."

Although by its terms the Amendment applies only to suits against a State by citizens of another State, our cases have extended the Amendment's applicability to suits by citizens against their own States. See Kimel v. Florida Bd. of Regents,528 U. S. 62, 72-73 (2000); College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 669-670 (1999); Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 54 (1996); Hans v. Louisiana, 134 U. S. 1, 15 (1890). The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court. See Kimel, supra, at 73.

We have recognized, however, that Congress may abrogate the States' Eleventh Amendment immunity when it both unequivocally intends to do so and "act[s] pursuant to a valid grant of constitutional authority." 528 U. S., at 73. The *364 first of these requirements is not in dispute here. See 42 U. S. C. § 12202 ("A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in [a] Federal or State court of competent jurisdiction for a violation of this chapter"). The question, then, is whether Congress acted within its constitutional authority by subjecting the States to suits in federal court for money damages under the ADA.

Congress may not, of course, base its abrogation of the States' Eleventh Amendment immunity upon the powers enumerated in Article I. See Kimel, supra,at 79 ("Under our firmly established precedent then, if the [Age Discrimination in Employment Act of 1967] rests solely on Congress' Article I commerce power, the private petitioners in today's cases cannot maintain their suits against their state employers"); Seminole Tribe, supra, at 72-73 ("The Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction"); College Savings Bank, supra, at 672; Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, 636 (1999); Alden v. Maine, 527 U. S. 706, 730-733 (1999). In Fitzpatrick v. Bitzer, 427 U. S. 445 (1976), however, we held that "the Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment." Id., at 456 (citation omitted). As a result, we concluded, Congress may subject nonconsenting States to suit in federal court when it does so pursuant to a valid exercise of its § 5 power. See ibid. Our cases have adhered to this proposition. See, e. g., Kimel, supra, at 80. Accordingly, the ADA can apply to the States only to the extent that the statute is appropriate § 5 legislation.3

*365 Section 1 of the Fourteenth Amendment provides, in relevant part:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Section 5 of the Fourteenth Amendment grants Congress the power to enforce the substantive guarantees contained in § 1 by enacting "appropriate legislation." See City of Boerne v. Flores, 521 U. S. 507, 536 (1997). Congress is not limited to mere legislative repetition of this Court's constitutional jurisprudence. "Rather, Congress' power `to enforce' the Amendment includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text." Kimel, supra, at 81; City of Boerne, supra, at 536.

City of Boerne also confirmed, however, the long-settled principle that it is the responsibility of this Court, not Congress, to define the substance of constitutional guarantees. 521 U. S., at 519-524. Accordingly, § 5 legislation reaching beyond the scope of § 1's actual guarantees must exhibit "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Id., at 520.

II

The first step in applying these now familiar principles is to identify with some precision the scope of the constitutional right at issue. Here, that inquiry requires us to examine the limitations § 1 of the Fourteenth Amendment places upon States' treatment of the disabled. As we did last Term in Kimel, see 528 U. S., at 83, we look to our prior decisions under the Equal Protection Clause dealing with this issue.

*366 In Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 (1985), we considered an equal protection challenge to a city ordinance requiring a special use permit for the operation of a group home for the mentally retarded. The specific question before us was whether the Court of Appeals had erred by holding that mental retardation qualified as a "quasi-suspect" classification under our equal protection jurisprudence. Id., at 435. We answered that question in the affirmative, concluding instead that such legislation incurs only the minimum "rational-basis" review applicable to general social and economic legislation.4 Id., at 446. In a statement that today seems quite prescient, we explained that

"if the large and amorphous class of the mentally retarded were deemed quasi-suspect for the reasons given by the Court of Appeals, it would be difficult to find a principled way to distinguish a variety of other groups who have perhaps immutable disabilities setting them off from others, who cannot themselves mandate the desired legislative responses, and who can claim some degree of prejudice from at least part of the public at large. One need mention in this respect only the aging, the disabled, the mentally ill, and the infirm. We are reluctant to set out on that course, and we decline to do so." Id., at 445-446.

Under rational-basis review, where a group possesses "distinguishing characteristics relevant to interests the State has the authority to implement," a State's decision *367 to act on the basis of those differences does not give rise to a constitutional violation. Id., at 441. "Such a classification cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose." Heller v. Doe, 509 U. S. 312, 320 (1993) (citing Nordlinger v. Hahn, 505 U. S. 1 (1992); New Orleans v. Dukes, 427 U. S. 297, 303 (1976) (per curiam) ). Moreover, the State need not articulate its reasoning at the moment a particular decision is made. Rather, the burden is upon the challenging party to negative "`any reasonably conceivable state of facts that could provide a rational basis for the classification.' " Heller, supra, at 320 (quoting FCC v. Beach Communications, Inc., 508 U. S. 307, 313 (1993)).

Justice Breyer suggests that Cleburne stands for the broad proposition that state decisionmaking reflecting "negative attitudes" or "fear" necessarily runs afoul of the Fourteenth Amendment. See post, at 382 (dissenting opinion) (quoting Cleburne,473 U. S., at 448). Although such biases may often accompany irrational (and therefore unconstitutional) discrimination, their presence alone does not a constitutional violation make. As we noted in Cleburne: "[M]ere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating a home for the mentally retarded differently . . . ." Id., at 448 (emphases added). This language, read in context, simply states the unremarkable and widely acknowledged tenet of this Court's equal protection jurisprudence that state action subject to rational-basis scrutiny does not violate the Fourteenth Amendment when it "rationally furthers the purpose identified by the State." Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307, 314 (1976) (per curiam).

Thus, the result of Cleburne is that States are not required by the Fourteenth Amendment to make special accommodations for the disabled, so long as their actions toward such individuals are rational. They could quite hardheadedly— *368and perhaps hardheartedly—hold to job-qualification requirements which do not make allowance for the disabled. If special accommodations for the disabled are to be required, they have to come from positive law and not through the Equal Protection Clause.5

III

Once we have determined the metes and bounds of the constitutional right in question, we examine whether Congress identified a history and pattern of unconstitutional employment discrimination by the States against the disabled. Just as § 1 of the Fourteenth Amendment applies only to actions committed "under color of state law," Congress' § 5 authority is appropriately exercised only in response to state transgressions. See Florida Prepaid, 527 U. S., at 640 ("It is this conduct then—unremedied patent infringement by the States—that must give rise to the Fourteenth Amendment violation that Congress sought to redress in the Patent Remedy Act"); Kimel, 528 U. S., at 89 ("Congress never identified any pattern of age discrimination by the States, much less any discrimination whatsoever that rose to the level of constitutional violation"). The legislative record of the ADA, however, simply fails to show that Congress did in fact identify a pattern of irrational state discrimination in employment against the disabled.

Respondents contend that the inquiry as to unconstitutional discrimination should extend not only to States themselves, but to units of local governments, such as cities and counties. All of these, they say, are "state actors" for *369 purposes of the Fourteenth Amendment. Brief for Respondents 8. This is quite true, but the Eleventh Amendment does not extend its immunity to units of local government. See Lincoln County v. Luning, 133 U. S. 529, 530 (1890). These entities are subject to private claims for damages under the ADA without Congress' ever having to rely on § 5 of the Fourteenth Amendment to render them so. It would make no sense to consider constitutional violations on their part, as well as by the States themselves, when only the States are the beneficiaries of the Eleventh Amendment.

Congress made a general finding in the ADA that "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem." 42 U. S. C. § 12101(a)(2). The record assembled by Congress includes many instances to support such a finding. But the great majority of these incidents do not deal with the activities of States.

Respondents in their brief cite half a dozen examples from the record that did involve States. A department head at the University of North Carolina refused to hire an applicant for the position of health administrator because he was blind; similarly, a student at a state university in South Dakota was denied an opportunity to practice teach because the dean at that time was convinced that blind people could not teach in public schools. A microfilmer at the Kansas Department of Transportation was fired because he had epilepsy; deaf workers at the University of Oklahoma were paid a lower salary than those who could hear. The Indiana State Personnel Office informed a woman with a concealed disability that she should not disclose it if she wished to obtain employment.6

*370 Several of these incidents undoubtedly evidence an unwillingness on the part of state officials to make the sort of accommodations for the disabled required by the ADA. Whether they were irrational under our decision in Cleburne is more debatable, particularly when the incident is described out of context. But even if it were to be determined that each incident upon fuller examination showed unconstitutional action on the part of the State, these incidents taken together fall far short of even suggesting the pattern of unconstitutional discrimination on which § 5 legislation must be based. See Kimel, supra, at 89-91; City of Boerne, 521 U. S., at 530-531. Congress, in enacting the ADA, found that "some 43,000,000 Americans have one or more physical or mental disabilities." 42 U. S. C. § 12101(a)(1). In 1990, the States alone employed more than 4.5 million people. U. S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States 338 (119th ed. 1999) (Table 534). It is telling, we think, that given these large numbers, Congress assembled only such minimal evidence of unconstitutional state discrimination in employment against the disabled.

Justice Breyer maintains that Congress applied Title I of the ADA to the States in response to a host of incidents representing unconstitutional state discrimination in employment against persons with disabilities. A close review of the relevant materials, however, undercuts that conclusion. Justice Breyer's Appendix C consists not of legislative findings, but of unexamined, anecdotal accounts of "adverse, disparate treatment by state officials." Post, at 379. Of course, as we have already explained, "adverse, disparate treatment" often does not amount to a constitutional violation where rational-basis scrutiny applies. These accounts, moreover, were submitted not directly to Congress but to the Task Force on the Rights and Empowerment of *371 Americans with Disabilities, which made no findings on the subject of state discrimination in employment.7 See the Task Force's Report entitled From ADA to Empowerment (Oct. 12, 1990). And, had Congress truly understood this information as reflecting a pattern of unconstitutional behavior by the States, one would expect some mention of that conclusion in the Act's legislative findings. There is none. See 42 U. S. C. § 12101. Although Justice Breyer would infer from Congress' general conclusions regarding societal discrimination against the disabled that the States had likewise participated in such action, post, at 378, the House and Senate committee reports on the ADA flatly contradict this assertion. After describing the evidence presented to the Senate Committee on Labor and Human Resources and its subcommittee (including the Task Force Report upon which the dissent relies), the Committee's Report reached, among others, the following conclusion: "Discrimination still persists in such critical areas as employment in the private sector, public accommodations, public services, transportation, and telecommunications." S. Rep. No. 101-116, p. 6 (1989) (emphasis added). The House Committee on Education and Labor, addressing the ADA's employment provisions, reached the same conclusion: "[A]fter extensive review and analysis over a number of Congressional sessions, . . . there exists a compelling need to establish a clear and comprehensive Federal prohibition of discrimination on the basis of disability in the areas of employment in the private sector, public accommodations, public services, transportation, *372 and telecommunications." H. R. Rep. No. 101-485, pt. 2, p. 28 (1990) (emphasis added). Thus, not only is the inference Justice Breyer draws unwarranted, but there is also strong evidence that Congress' failure to mention States in its legislative findings addressing discrimination in employment reflects that body's judgment that no pattern of unconstitutional state action had been documented.

Even were it possible to squeeze out of these examples a pattern of unconstitutional discrimination by the States, the rights and remedies created by the ADA against the States would raise the same sort of concerns as to congruence and proportionality as were found in City of Boerne, supra. For example, whereas it would be entirely rational (and therefore constitutional) for a state employer to conserve scarce financial resources by hiring employees who are able to use existing facilities, the ADA requires employers to "mak[e] existing facilities used by employees readily accessible to and usable by individuals with disabilities." 42 U. S. C. §§ 12112(5)(B), 12111(9). The ADA does except employers from the "reasonable accommodatio[n]" requirement where the employer "can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." § 12112(b)(5)(A). However, even with this exception, the accommodation duty far exceeds what is constitutionally required in that it makes unlawful a range of alternative responses that would be reasonable but would fall short of imposing an "undue burden" upon the employer. The Act also makes it the employer's duty to prove that it would suffer such a burden, instead of requiring (as the Constitution does) that the complaining party negate reasonable bases for the employer's decision. See ibid.

The ADA also forbids "utilizing standards, criteria, or methods of administration" that disparately impact the disabled, without regard to whether such conduct has a rational basis. § 12112(b)(3)(A). Although disparate impact may be *373 relevant evidence of racial discrimination, see Washington v. Davis, 426 U. S. 229, 239 (1976), such evidence alone is insufficient even where the Fourteenth Amendment subjects state action to strict scrutiny. See, e. g., ibid. ("[O]ur cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact").

The ADA's constitutional shortcomings are apparent when the Act is compared to Congress' efforts in the Voting Rights Act of 1965 to respond to a serious pattern of constitutional violations. In South Carolina v. Katzenbach, 383 U. S. 301 (1966),we considered whether the Voting Rights Act was "appropriate" legislation to enforce the Fifteenth Amendment's protection against racial discrimination in voting. Concluding that it was a valid exercise of Congress' enforcement power under § 2 of the Fifteenth Amendment,8 we noted that "[b]efore enacting the measure, Congress explored with great care the problem of racial discrimination in voting." Id., at 308.

In that Act, Congress documented a marked pattern of unconstitutional action by the States. State officials, Congress found, routinely applied voting tests in order to exclude African-American citizens from registering to vote. See id., at 312. Congress also determined that litigation had proved ineffective and that there persisted an otherwise inexplicable 50-percentage-point gap in the registration of white and African-American voters in some States. See id., at 313. Congress' response was to promulgate in the Voting Rights Act a detailed but limited remedial scheme designed to guarantee meaningful enforcement of the Fifteenth Amendment in those areas of the Nation where abundant evidence of States' systematic denial of those rights was identified.

*374 The contrast between this kind of evidence, and the evidence that Congress considered in the present case, is stark. Congressional enactment of the ADA represents its judgment that there should be a "comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U. S. C. § 12101(b)(1). Congress is the final authority as to desirable public policy, but in order to authorize private individuals to recover money damages against the States, there must be a pattern of discrimination by the States which violates the Fourteenth Amendment, and the remedy imposed by Congress must be congruent and proportional to the targeted violation. Those requirements are not met here, and to uphold the Act's application to the States would allow Congress to rewrite the Fourteenth Amendment law laid down by this Court in Cleburne.9 Section 5 does not so broadly enlarge congressional authority. The judgment of the Court of Appeals is therefore

Reversed.

1

 Respondents' complaints in the United States District Court alleged violations of both Title I and Title II of the ADA, and petitioners' "Question Presented" can be read to apply to both sections. See Brief for Petitioners i; Brief for United States I. Though the briefs of the parties discuss both sections in their constitutional arguments, no party has briefed the question whether Title II of the ADA, dealing with the "services, programs, or activities of a public entity," 42 U. S. C. § 12132, is available for claims of employment discrimination when Title I of the ADA expressly deals with that subject. See, e. g., Russello v. United States, 464 U. S. 16, 23 (1983) ("[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion" (internal quotation marks omitted)). The Courts of Appeals are divided on this issue, compare Zimmerman v. Oregon Dept. of Justice, 170 F. 3d 1169 (CA9 1999), with Bledsoe v. Palm Beach Cty. Soil & Water Conservation Dist., 133 F. 3d 816 (CA11 1998). We are not disposed to decide the constitutional issue whether Title II, which has somewhat different remedial provisions from Title I, is appropriate legislation under § 5 of the Fourteenth Amendment when the parties have not favored us with briefing on the statutory question. To the extent the Court granted certiorari on the question whether respondents may sue their state employers for damages under Title II of the ADA, see this Court's Rule 24.1(a), that portion of the writ is dismissed as improvidently granted. See The Monrosa v. Carbon Black Export, Inc., 359 U. S. 180, 184 (1959).

2

 Garrett raised other claims, but those are not presently before the Court.

3

 It is clear that Congress intended to invoke § 5 as one of its bases for enacting the ADA. See 42 U. S. C. § 12101(b)(4).

4

 Applying the basic principles of rationality review, Cleburne struck down the city ordinance in question. 473 U. S., at 447-450. The Court's reasoning was that the city's purported justifications for the ordinance made no sense in light of how the city treated other groups similarly situated in relevant respects. Although the group home for the mentally retarded was required to obtain a special use permit, apartment houses, other multiple-family dwellings, retirement homes, nursing homes, sanitariums, hospitals, boarding houses, fraternity and sorority houses, and dormitories were not subject to the ordinance. See ibid.

5

 It is worth noting that by the time that Congress enacted the ADA in 1990, every State in the Union had enacted such measures. At least one Member of Congress remarked that "this is probably one of the few times where the States are so far out in front of the Federal Government, it's not funny." Hearing on Discrimination Against Cancer Victims and the Handicapped before the Subcommittee on Employment Opportunities of the House Committee on Education and Labor, 100th Cong., 1st Sess., 5 (1987). A number of these provisions, however, did not go as far as the ADA did in requiring accommodation.

6

 The record does show that some States, adopting the tenets of the eugenics movement of the early part of this century, required extreme measures such as sterilization of persons suffering from hereditary mental disease. These laws were upheld against constitutional attack 70 years ago in Buck v. Bell, 274 U. S. 200 (1927). But there is no indication that any State had persisted in requiring such harsh measures as of 1990 when the ADA was adopted.

7

 Only a small fraction of the anecdotes Justice Breyer identifies in his Appendix C relate to state discrimination against the disabled in employment. At most, somewhere around 50 of these allegations describe conduct that could conceivably amount to constitutional violations by the States, and most of them are so general and brief that no firm conclusion can be drawn. The overwhelming majority of these accounts pertain to alleged discrimination by the States in the provision of public services and public accommodations, which areas are addressed in Titles II and III of the ADA.

8

 Section 2 of the Fifteenth Amendment is virtually identical to § 5 of the Fourteenth Amendment.

9

 Our holding here that Congress did not validly abrogate the States' sovereign immunity from suit by private individuals for money damages under Title I does not mean that persons with disabilities have no federal recourse against discrimination. Title I of the ADA still prescribes standards applicable to the States. Those standards can be enforced by the United States in actions for money damages, as well as by private individuals in actions for injunctive relief under Ex parte Young, 209 U. S. 123 (1908). In addition, state laws protecting the rights of persons with disabilities in employment and other aspects of life provide independent avenues of redress. See n. 5, supra.

Justice Kennedy, with whom Justice O'Connor joins, concurring.

Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves. Quite apart from any historical documentation, *375 knowledge of our own human instincts teaches that persons who find it difficult to perform routine functions by reason of some mental or physical impairment might at first seem unsettling to us, unless we are guided by the better angels of our nature. There can be little doubt, then, that persons with mental or physical impairments are confronted with prejudice which can stem from indifference or insecurity as well as from malicious ill will.

One of the undoubted achievements of statutes designed to assist those with impairments is that citizens have an incentive, flowing from a legal duty, to develop a better understanding, a more decent perspective, for accepting persons with impairments or disabilities into the larger society. The law works this way because the law can be a teacher. So I do not doubt that the Americans with Disabilities Act of 1990 will be a milestone on the path to a more decent, tolerant, progressive society.

It is a question of quite a different order, however, to say that the States in their official capacities, the States as governmental entities, must be held in violation of the Constitution on the assumption that they embody the misconceived or malicious perceptions of some of their citizens. It is a most serious charge to say a State has engaged in a pattern or practice designed to deny its citizens the equal protection of the laws, particularly where the accusation is based not on hostility but instead on the failure to act or the omission to remedy. States can, and do, stand apart from the citizenry. States act as neutral entities, ready to take instruction and to enact laws when their citizens so demand. The failure of a State to revise policies now seen as incorrect under a new understanding of proper policy does not always constitute the purposeful and intentional action required to make out a violation of the Equal Protection Clause. See Washington v. Davis, 426 U. S. 229 (1976).

For the reasons explained by the Court, an equal protection violation has not been shown with respect to the several States in this case. If the States had been transgressing *376 the Fourteenth Amendment by their mistreatment or lack of concern for those with impairments, one would have expected to find in decisions of the courts of the States and also the courts of the United States extensive litigation and discussion of the constitutional violations. This confirming judicial documentation does not exist. That there is a new awareness, a new consciousness, a new commitment to better treatment of those disadvantaged by mental or physical impairments does not establish that an absence of state statutory correctives was a constitutional violation.

It must be noted, moreover, that what is in question is not whether the Congress, acting pursuant to a power granted to it by the Constitution, can compel the States to act. What is involved is only the question whether the States can be subjected to liability in suits brought not by the Federal Government (to which the States have consented, see Alden v. Maine, 527 U. S. 706, 755 (1999)), but by private persons seeking to collect moneys from the state treasury without the consent of the State. The predicate for money damages against an unconsenting State in suits brought by private persons must be a federal statute enacted upon the documentation of patterns of constitutional violations committed by the State in its official capacity. That predicate, for reasons discussed here and in the decision of the Court, has not been established. With these observations, I join the Court's opinion.

Justice Breyer, with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting.

Reviewing the congressional record as if it were an administrative agency record, the Court holds the statutory provision before us, 42 U. S. C. § 12202, unconstitutional. The Court concludes that Congress assembled insufficient evidence of unconstitutional discrimination, ante, at 370, that Congress improperly attempted to "rewrite" the law we established in Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 (1985), ante, at 374, and that the law is not sufficiently *377 tailored to address unconstitutional discrimination, ante, at 372-373.

Section 5, however, grants Congress the "power to enforce, by appropriate legislation," the Fourteenth Amendment's equal protection guarantee. U. S. Const., Amdt. 14, § 5. As the Court recognizes, state discrimination in employment against persons with disabilities might "`run afoul of the Equal Protection Clause' " where there is no "`rational relationship between the disparity of treatment and some legitimate governmental purpose.' " Ante, at 367 (quoting Heller v. Doe, 509 U. S. 312, 320 (1993)). See also Cleburne v. Cleburne Living Center, Inc., supra, at 440(stating that the Court will sustain a classification if it is "rationally related to a legitimate state interest"). In my view, Congress reasonably could have concluded that the remedy before us constitutes an "appropriate" way to enforce this basic equal protection requirement. And that is all the Constitution requires.

I

The Court says that its primary problem with this statutory provision is one of legislative evidence. It says that "Congress assembled only . . . minimal evidence of unconstitutional state discrimination in employment." Ante, at 370. In fact, Congress compiled a vast legislative record documenting "`massive, society-wide discrimination' " against persons with disabilities. S. Rep. No. 101-116, pp. 8-9 (1989) (quoting testimony of Justin Dart, chairperson of the Task Force on the Rights and Empowerment of Americans with Disabilities). In addition to the information presented at 13 congressional hearings (see Appendix A, infra ), and its own prior experience gathered over 40 years during which it contemplated and enacted considerable similar legislation (see Appendix B, infra ), Congress created a special task force to assess the need for comprehensive legislation. That task force held hearings in every State, attended by more than 30,000 people, including thousands who had experienced discrimination first hand. See From ADA to Empowerment, *378 Task Force on the Rights and Empowerment of Americans with Disabilities 16 (Oct. 12, 1990) (hereinafter Task Force Report). The task force hearings, Congress' own hearings, and an analysis of "census data, national polls, and other studies" led Congress to conclude that "people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally." 42 U. S. C. § 12101(a)(6). As to employment, Congress found that "[t]wo-thirds of all disabled Americans between the age of 16 and 64 [were] not working at all," even though a large majority wanted to, and were able to, work productively. S. Rep. No. 101-116, at 9. And Congress found that this discrimination flowed in significant part from "stereotypic assumptions" as well as "purposeful unequal treatment." 42 U. S. C. § 12101(a)(7).

The powerful evidence of discriminatory treatment throughout society in general, including discrimination by private persons and local governments, implicates state governments as well, for state agencies form part of that same larger society. There is no particular reason to believe that they are immune from the "stereotypic assumptions" and pattern of "purposeful unequal treatment" that Congress found prevalent. The Court claims that it "make[s] no sense" to take into consideration constitutional violations committed by local governments. Ante, at 369. But the substantive obligation that the Equal Protection Clause creates applies to state and local governmental entities alike. E. g., Richmond v. J. A. Croson Co., 488 U. S. 469 (1989). Local governments often work closely with, and under the supervision of, state officials, and in general, state and local government employers are similarly situated. Nor is determining whether an apparently "local" entity is entitled to Eleventh Amendment immunity as simple as the majority suggests—it often requires a "`detailed examination of the relevant provisions of [state] law.' " Regents of Univ. of Cal. *379 v. Doe, 519 U. S. 425, 430, n. 6 (1997)(quoting Moor v. County of Alameda, 411 U. S. 693, 719-721 (1973)).

In any event, there is no need to rest solely upon evidence of discrimination by local governments or general societal discrimination. There are roughly 300 examples of discrimination by state governments themselves in the legislative record. See, e. g., Appendix C, infra. I fail to see how this evidence "fall[s] far short of even suggesting the pattern of unconstitutional discrimination on which § 5 legislation must be based." Ante, at 370.

The congressionally appointed task force collected numerous specific examples, provided by persons with disabilities themselves, of adverse, disparate treatment by state officials. They reveal, not what the Court describes as "half a dozen" instances of discrimination, ante, at 369, but hundreds of instances of adverse treatment at the hands of state officials— instances in which a person with a disability found it impossible to obtain a state job, to retain state employment, to use the public transportation that was readily available to others in order to get to work, or to obtain a public education, which is often a prerequisite to obtaining employment. State-imposed barriers also frequently made it difficult or impossible for people to vote, to enter a public building, to access important government services, such as calling for emergency assistance, and to find a place to live due to a pattern of irrational zoning decisions similar to the discrimination that we held unconstitutional in Cleburne, 473 U. S., at 448. See Appendix C, infra.

As the Court notes, those who presented instances of discrimination rarely provided additional, independent evidence sufficient to prove in court that, in each instance, the discrimination they suffered lacked justification from a judicial standpoint. Ante, at 370 (stating that instances of discrimination are "described out of context"). Perhaps this explains the Court's view that there is "minimal evidence of unconstitutional state discrimination." Ibid. But a legislature *380 is not a court of law. And Congress, unlike courts, must, and does, routinely draw general conclusions—for example, of likely motive or of likely relationship to legitimate need—from anecdotal and opinion-based evidence of this kind, particularly when the evidence lacks strong refutation. See Task Force Report 16, 20 (task force "met many times with significant representatives of groups opposed to [the] ADA," and as to the general public, although the task force received "about 2,000 letters" in support of the ADA, there was only "one letter in opposition"); S. Rep. No. 101-116, at 10 (summarizing testimony that many reasonable accommodations cost "less than $50," and the expense of others, such as hiring employees who can interpret for the deaf, is "frequently exaggerated"). In reviewing § 5 legislation, we have never required the sort of extensive investigation of each piece of evidence that the Court appears to contemplate. Compare ante, at 370-371, with Katzenbach v. Morgan, 384 U. S. 641, 652-656 (1966) (asking whether Congress' likely conclusions were reasonable, not whether there was adequate evidentiary support in the record). Nor has the Court traditionally required Congress to make findings as to state discrimination, or to break down the record evidence, category by category. Compare ante, at 371-372 (noting statements in two congressional Reports that mentioned state discrimination in public services and transportation but not in employment), with Morgan, supra, at 654 (considering what Congress "might" have concluded); 384 U. S., at 652 (holding that likely discrimination against Puerto Ricans in areas other than voting supported statute abolishing literacy test as qualification for voting).

Regardless, Congress expressly found substantial unjustified discrimination against persons with disabilities. 42 U. S. C. § 12101(9) (finding a pattern of "unnecessary discrimination and prejudice" that "costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity" (emphasis added)). See also 2 Legislative History of the Americans with Disabilities *381 Act (Leg. Hist.) (Committee Print compiled for the House Committee on Education and Labor), Ser. No. 102—B, p. 1620 (1990) (testimony of Arlene B. Mayerson) (describing "unjustifiable and discriminatory loss of job opportunities"); id., at 1623 (citing study showing "`strong evidence that employers' fears of low performance among disabled workers are unjustified' "). Moreover, it found that such discrimination typically reflects "stereotypic assumptions" or "purposeful unequal treatment." 42 U. S. C. § 12101(7). See also 2 Leg. Hist. 1622 (testimony of Arlene B. Mayerson) ("Outmoded stereotypes whether manifested in medical or other job `requirements' that are unrelated to the successful performance of the job, or in decisions based on the generalized perceptions of supervisors and hiring personnel, have excluded many disabled people from jobs for which they are qualified"). In making these findings, Congress followed our decision in Cleburne, which established that not only discrimination against persons with disabilities that rests upon "`a bare . . . desire to harm a politically unpopular group,' " 473 U. S., at 447 (quoting Department of Agriculture v. Moreno,413 U. S. 528, 534 (1973) (omission in Cleburne )), violates the Fourteenth Amendment, but also discrimination that rests solely upon "negative attitude[s]," "fea[r]," 473 U. S., at 448, or "irrational prejudice," id., at 450. Adverse treatment that rests upon such motives is unjustified discrimination in Cleburne' s terms.

The evidence in the legislative record bears out Congress' finding that the adverse treatment of persons with disabilities was often arbitrary or invidious in this sense, and thus unjustified. For example, one study that was before Congress revealed that "most . . . governmental agencies in [one State] discriminated in hiring against job applicants for an average period of five years after treatment for cancer," based in part on coworkers' misguided belief that "cancer is contagious." 2 Leg. Hist. 1619-1620 (testimony of Arlene B. Mayerson). A school inexplicably refused to exempt a deaf teacher, who taught at a school for the deaf, from a *382 "listening skills" requirement. Government's Lodging 1503. A State refused to hire a blind employee as director of an agency for the blind—even though he was the most qualified applicant. Id., at 974. Certain state agencies apparently had general policies against hiring or promoting persons with disabilities. Id., at 1159, 1577. A zoo turned away children with Downs Syndrome "because [the zookeeper] feared they would upset the chimpanzees." S. Rep. No. 101— 116, at 7. There were reports of numerous zoning decisions based upon "negative attitudes" or "fear," Cleburne, supra, at 448, such as a zoning board that denied a permit for an obviously pretextual reason after hearing arguments that a facility would house "`deviants' " who needed "`room to roam,' " Government's Lodging 1068. A complete listing of the hundreds of examples of discrimination by state and local governments that were submitted to the task force is set forth in Appendix C, infra.Congress could have reasonably believed that these examples represented signs of a widespread problem of unconstitutional discrimination.

II

The Court's failure to find sufficient evidentiary support may well rest upon its decision to hold Congress to a strict, judicially created evidentiary standard, particularly in respect to lack of justification. Justice Kennedy's empirical conclusion—which rejects that of Congress—rests heavily upon his failure to find "extensive litigation and discussion of the constitutional violations," in "the courts of the United States." Ante, at 376 (concurring opinion) (emphasis added). And the Court itself points out that, when economic or social legislation is challenged in court as irrational, hence unconstitutional, the "burden is upon the challenging party to negative any reasonably conceivable state of facts that could provide a rational basis for the classification." Ante, at 367 (internal quotation marks omitted). Or as Justice Brandeis, writing for the Court, put the matter many years ago, "`if any state of facts reasonably can be conceived that *383 would sustain' " challenged legislation, then "`there is a presumption of the existence of that state of facts, and one who assails the classification must carry the burden of showing . . . that the action is arbitrary.' " Pacific States Box & Basket Co. v. White, 296 U. S. 176, 185 (1935) (quoting Borden's Farm Products Co. v. Baldwin, 293 U. S. 194, 209 (1934)). Imposing this special "burden" upon Congress, the Court fails to find in the legislative record sufficient indication that Congress has "negative[d]" the presumption that state action is rationally related to a legitimate objective. Ante, at 367.

The problem with the Court's approach is that neither the "burden of proof" that favors States nor any other rule of restraint applicable to judges applies to Congress when it exercises its § 5 power. "Limitations stemming from the nature of the judicial process . . . have no application to Congress." Oregon v. Mitchell, 400 U. S. 112, 248 (1970) (Brennan, White, and Marshall, JJ., concurring in part and dissenting in part). Rational-basis review—with its presumptions favoring constitutionality—is "a paradigm of judicial restraint." FCC v. Beach Communications, Inc., 508 U. S. 307, 314 (1993) (emphasis added). And the Congress of the United States is not a lower court.

Indeed, the Court in Cleburne drew this very institutional distinction. We emphasized that "courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices." 473 U. S., at 441. Our invocation of judicial deference and respect for Congress was based on the fact that "[§ ]5 of the [Fourteenth] Amendment empowers Congress to enforce [the equal protection] mandate." Id.,at 439 (emphasis added). Indeed, we made clear that the absence of a contrary congressional finding was critical to our decision to apply mere rational-basis review to disability discrimination claims—a "congressional direction" to apply a more stringent standard would have been "controlling." Ibid. See also Washingtonv. Davis, 426 U. S. 229, 248 *384 (1976) (refusing to invalidate a law based on the Equal Protection Clause because a disparate-impact standard "should await legislative prescription"). Cf. Mitchell, supra, at 284 (Stewart, J., concurring in part and dissenting in part) ("Congress may paint with a much broader brush than may this Court, which must confine itself to the judicial function of deciding individual cases and controversies upon individual records"). In short, the Court's claim that "to uphold the Act's application to the States would allow Congress to rewrite the Fourteenth Amendment law laid down by this Court in Cleburne, " ante, at 374, is repudiated by Cleburne itself.

There is simply no reason to require Congress, seeking to determine facts relevant to the exercise of its § 5 authority, to adopt rules or presumptions that reflect a court's institutional limitations. Unlike courts, Congress can readily gather facts from across the Nation, assess the magnitude of a problem, and more easily find an appropriate remedy. Cf. Cleburne, supra, at 442-443 (addressing the problems of the "large and diversified group" of persons with disabilities "is a difficult and often a technical matter, very much a task for legislators guided by qualified professionals and not by the perhaps ill-informed opinions of the judiciary"). Unlike courts, Congress directly reflects public attitudes and beliefs, enabling Congress better to understand where, and to what extent, refusals to accommodate a disability amount to behavior that is callous or unreasonable to the point of lacking constitutional justification. Unlike judges, Members of Congress can directly obtain information from constituents who have firsthand experience with discrimination and related issues.

Moreover, unlike judges, Members of Congress are elected. When the Court has applied the majority's burden of proof rule, it has explained that we, i. e., the courts, do not "`sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations.' " Heller, 509 U. S., at 319 *385 (quoting New Orleans v. Dukes, 427 U. S. 297, 303 (1976) (per curiam) ). To apply a rule designed to restrict courts as if it restricted Congress' legislative power is to stand the underlying principle—a principle of judicial restraint— on its head. But without the use of this burden of proof rule or some other unusually stringent standard of review, it is difficult to see how the Court can find the legislative record here inadequate. Read with a reasonably favorable eye, the record indicates that state governments subjected those with disabilities to seriously adverse, disparate treatment. And Congress could have found, in a significant number of instances, that this treatment violated the substantive principles of justification—shorn of their judicial restraint-related presumptions—that this Court recognized in Cleburne.

III

The Court argues in the alternative that the statute's damages remedy is not "congruent" with and "proportional" to the equal protection problem that Congress found. Ante, at 374 (citing City of Boerne v. Flores, 521 U. S. 507, 520 (1997)). The Court suggests that the Act's "reasonable accommodation" requirement, 42 U. S. C. § 12112(b)(5)(A), and disparate-impact standard, § 12112(b)(3)(A), "far excee[d] what is constitutionally required." Ante, at 372. But we have upheld disparate-impact standards in contexts where they were not "constitutionally required." Compare Griggs v. Duke Power Co., 401 U. S. 424, 432 (1971), with Washington, supra, at 239, and City of Rome v. United States, 446 U. S. 156, 172-173 (1980), with Mobile v. Bolden, 446 U. S. 55, 62 (1980) (plurality opinion).

And what is wrong with a remedy that, in response to unreasonable employer behavior, requires an employer to make accommodations that are reasonable? Of course, what is "reasonable" in the statutory sense and what is "unreasonable" in the constitutional sense might differ. In other words, the requirement may exceed what is necessary to *386 avoid a constitutional violation. But it is just that power— the power to require more than the minimum—that § 5 grants to Congress, as this Court has repeatedly confirmed. As long ago as 1880, the Court wrote that § 5 "brought within the domain of congressional power" whatever "tends to enforce submission" to its "prohibitions" and "to secure to all persons . . . the equal protection of the laws." Ex parte Virginia, 100 U. S. 339, 346 (1880). More recently, the Court added that § 5's "draftsmen sought to grant to Congress, by a specific provision applicable to the Fourteenth Amendment, the same broad powers expressed in the Necessary and Proper Clause, Art. I, § 8, cl. 18." Morgan, 384 U. S., at 650 (citing McCulloch v. Maryland, 4 Wheat. 316, 421 (1819)).

In keeping with these principles, the Court has said that "[i]t is not for us to review the congressional resolution of . . . the various conflicting considerations—the risk or pervasiveness of the discrimination in governmental services . . . , the adequacy or availability of alternative remedies, and the nature and significance of the state interests that would be affected." 384 U. S., at 653. "It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did." Ibid.See also South Carolina v. Katzenbach, 383 U. S. 301, 324 (1966) (interpreting the similarly worded Enforcement Clause of the Fifteenth Amendment to permit Congress to use "any rational means to effectuate the constitutional prohibition"). Nothing in the words "reasonable accommodation" suggests that the requirement has no "tend[ency] to enforce" the Equal Protection Clause, Ex parte Virginia, supra, at 346, that it is an irrational way to achieve the objective, Katzenbach, supra, at 324, that it would fall outside the scope of the Necessary and Proper Clause, Morgan, supra, at 650, or that it somehow otherwise exceeds the bounds of the "appropriate," U. S. Const., Amdt. 14, § 5.

The Court's more recent cases have professed to follow the longstanding principle of deference to Congress. See Kimel *387 v. Florida Bd. of Regents, 528 U. S. 62, 81 (2000) ("Congress' § 5 power is not confined to the enactment of legislation that merely parrots the precise wording of the Fourteenth Amendment." Rather, Congress can prohibit a "somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text"); Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, 639 (1999) ("`Congress must have wide latitude' ") (quoting City of Boerne, supra, at 519-520); City of Boerne, supra, at 528 (reaffirming Morgan ); 521 U. S., at 536 (Congress' "conclusions are entitled to much deference"). And even today, the Court purports to apply, not to depart from, these standards. Ante, at 365. But the Court's analysis and ultimate conclusion deprive its declarations of practical significance. The Court `sounds the word of promise to the ear but breaks it to the hope.'

IV

The Court's harsh review of Congress' use of its § 5 power is reminiscent of the similar (now-discredited) limitation that it once imposed upon Congress' Commerce Clause power. Compare Carter v. Carter Coal Co., 298 U. S. 238 (1936), with United States v. Darby, 312 U. S. 100, 123 (1941) (rejecting Carter Coal' s rationale). I could understand the legal basis for such review were we judging a statute that discriminated against those of a particular race or gender, see United States v. Virginia, 518 U. S. 515 (1996), or a statute that threatened a basic constitutionally protected liberty such as free speech, see Reno v. American Civil Liberties Union, 521 U. S. 844 (1997); see also Post & Siegel, Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel,110 Yale L. J. 441, 477 (2000) (stating that the Court's recent review of § 5 legislation appears to approach strict scrutiny); 1 L. Tribe, American Constitutional Law § 5-16, p. 959 (3d ed. 2000) (same). The legislation before us, however, does not discriminate against anyone, nor does it pose any threat to basic liberty. And it is difficult *388 to understand why the Court, which applies "minimum `rational-basis' review" to statutes that burden persons with disabilities, ante, at 366, subjects to far stricter scrutiny a statute that seeks to help those same individuals.

I recognize nonetheless that this statute imposes a burden upon States in that it removes their Eleventh Amendment protection from suit, thereby subjecting them to potential monetary liability. Rules for interpreting § 5 that would provide States with special protection, however, run counter to the very object of the Fourteenth Amendment. By its terms, that Amendment prohibits States from denying their citizens equal protection of the laws. U. S. Const., Amdt. 14, § 1. Hence "principles of federalism that might otherwise be an obstacle to congressional authority are necessarily overridden by the power to enforce the Civil War Amendments `by appropriate legislation.' Those Amendments were specifically designed as an expansion of federal power and an intrusion on state sovereignty." City of Rome,446 U. S., at 179. See also Fitzpatrick v. Bitzer, 427 U. S. 445, 456 (1976); Ex parte Virginia, supra, at 345. And, ironically, the greater the obstacle the Eleventh Amendment poses to the creation by Congress of the kind of remedy at issue here—the decentralized remedy of private damages actions—the more Congress, seeking to cure important national problems, such as the problem of disability discrimination before us, will have to rely on more uniform remedies, such as federal standards and court injunctions, 42 U. S. C. § 12188(a)(2), which are sometimes draconian and typically more intrusive. See College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 704-705 (1999) (Breyer, J., dissenting). Cf. ante, at 374, n. 9. For these reasons, I doubt that today's decision serves any constitutionally based federalism interest.

The Court, through its evidentiary demands, its nondeferential review, and its failure to distinguish between judicial and legislative constitutional competencies, improperly invades a power that the Constitution assigns to Congress. *389Morgan, 384 U. S., at 648, n. 7 (The "sponsors and supporters of the [Fourteenth] Amendment were primarily interested in augmenting the power of Congress"). Its decision saps § 5 of independent force, effectively "confin[ing] the legislative power . . . to the insignificant role of abrogating only those state laws that the judicial branch [is] prepared to adjudge unconstitutional." Id., at 648-649. Whether the Commerce Clause does or does not enable Congress to enact this provision, see, e. g., Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 100-185 (1996) (Souter, J., joined by Ginsburg and Breyer, JJ., dissenting); College Savings Bank, supra, at 699-700 (Breyer, J., dissenting), in my view, § 5 gives Congress the necessary authority.

For the reasons stated, I respectfully dissent.

APPENDIX A TO OPINION OF BREYER, J.

Congressional hearings on the Americans with Disabilities Act

Americans with Disabilities Act of 1989: Hearings on H. R. 2273 before the House Committee on the Judiciary and the Subcommittee on Civil and Constitutional Rights, 101st Cong., 1st Sess. (1989).

Americans with Disabilities Act: Hearing on H. R. 2273 and S. 933 before the Subcommittee on Transportation and Hazardous Materials of the House Committee on Energy and Commerce, 101st Cong., 1st Sess. (1990). Americans with Disabilities Act: Hearings on H. R. 2273 before the Subcommittee on Surface Transportation of the House Committee on Public Works and Transportation, 101st Cong., 1st Sess. (1990).

Americans with Disabilities: Telecommunications Relay Services, Hearing on Title V of H. R. 2273 before the Subcommittee on Telecommunications and Finance of the House Committee on Energy and Commerce, 101st Cong., 1st Sess. (1990).

Americans with Disabilities Act of 1989: Hearing on H. R. 2273 before the Subcommittee on Select Education of the *390 House Committee on Education and Labor, 101st Cong., 1st Sess. (1989).

Field Hearing on Americans with Disabilities Act: Hearing before the Subcommittee on Select Education of the House Committee on Education and Labor, 101st Cong., 1st Sess. (1989).

Hearing on H. R. 2273, The Americans with Disabilities Act of 1989: Joint Hearing before the Subcommittee on Select Education and Employment Opportunities of the House Committee on Education and Labor, 101st Cong., 1st Sess. (July 18 & Sept. 13, 1989) (two hearings). Oversight Hearing on H. R. 4498, Americans with Disabilities Act of 1988: Hearing before the Subcommittee on Select Education of the House Committee on Education and Labor, 100th Cong., 2d Sess. (1989).

Americans with Disabilities Act: Hearing before the House Committee on Small Business, 101st Cong., 2d Sess. (1990); Americans with Disabilities Act of 1989: Hearings on S. 933 before the Senate Committee on Labor and Human Resources and the Subcommittee on the Handicapped, 101st Cong., 1st Sess. (1989) (May 1989 Hearings). Americans with Disabilities Act of 1988: Joint Hearing on S. 2345 before the Subcommittee on the Handicapped of the Senate Committee on Labor and Human Resources and the Subcommittee on Select Education of the House Committee on Education and Labor, 100th Cong., 2d Sess. (1989).

APPENDIX B TO OPINION OF BREYER, J.

Disability discrimination laws enacted by Congress prior to the Americans with Disabilities Act

Act of June 10, 1948, ch. 434, 62 Stat. 351 Architectural Barriers Act of 1968, 42 U. S. C. § 4151 et seq. Rehabilitation Act of 1973, 29 U. S. C. § 701 et seq. *391Education of the Handicapped Act, Pub. L. 91-230, Title VI, 84 Stat. 175 (reenacted in 1990 as the Individuals with Disabilities Education Act, 20 U. S. C. § 1400 et seq. ) Developmental Disabilities Assistance and Bill of Rights Act, 42 U. S. C. § 6000 et seq. Voting Accessibility for the Elderly and Handicapped Act, 42 U. S. C. § 1973ee et seq. Air Carrier Access Act of 1986, 49 U. S. C. § 41705 Protection and Advocacy for Mentally Ill Individuals Act of 1986, 42 U. S. C. § 10801 et seq. Fair Housing Amendments Act of 1988, 42 U. S. C. § 3604.

APPENDIX C TO OPINION OF BREYER, J.

Submissions made by individuals to the Task Force on Rights and Empowerment of Americans with Disabilities. See the Government's Lodging (available in Clerk of Court's case file).

ALABAMA

Page No.

00002    discrimination against the mentally ill in city zoning
         process

00003    inaccessible exercise equipment at University   of
         Alabama

00004    school failed to train teachers how to work with
         students with learning disabilities

00005    courts failed to provide interpretive services for
         deaf people

00006    lack of accessible police and court services for deaf
         people

00007    inaccessible public transportation

00008    child denied public education because of cerebral
         palsy

00009    inaccessible public transportation, which prevented
         persons with disabilities from getting to work

00010    inaccessible public buildings and services; 
inaccessible transportation
00011    inaccessible public schools; inaccessible public transportation
00013    inaccessible public schools; inaccessible public transportation
00014    failure to enforce building codes requiring access for          
persons with disabilities
00015    inaccessible courthouse
00017    lack of instructions for use of voting machine by          
blind people; inaccessible restrooms in newly renovated State House
00021    inaccessible public transportation
00023    inaccessible public transportation
00024    failure to enforce state and local laws protecting persons with disabilities
00025    schools failed to provide an adequate education for          
children with disabilities
00026    inaccessible public transportation
00027    man denied vocational rehabilitation services based on          
his cerebral palsy; inaccessible public transportation
00031    vocational rehabilitation agency failed to provide          
services for schizophrenics; zoning discrimination against group homes
00032    school failed to provide an adequate education
00033    school failed to provide an adequate education
ALASKA
Page No.
00038    school placed child with cerebral palsy in special education classes
00041    inaccessible restrooms in state legislature information office
00042    inaccessible areas at new Alaska Performing Arts Center

00044    inaccessible public transportation, which prevented
         persons with disabilities from getting to work

00046    lack of curb cuts in sidewalks near apartment building
for persons with disabilities

00048    child erroneously placed in special education classes

00049    inaccessible new performing arts center

00050    Alaska Psychiatric Institute failed to provide interpretive
services for deaf patients

00052    state and local agencies disregarded laws requiring
         accessibility

00055    jail failed to provide person with disability medical
         treatment

00056    inaccessible government buildings in Seward

00057    inaccessible public transportation

00058    city failed to train employees how to communicate
         with people with hearing impairments

00059    segregated seating and inaccessibility at new performing
arts center

00061    inaccessibility of State Ferry Columbia and Alaska
         Railroad; denial of job interview because person was
         in a wheelchair

00062    inaccessible new performing arts center

00063    person using a respirator denied access to Alaska
         State Division of Medical Assistance

00065    inaccessible city hall

00067    school district retaliated against teacher for asking
         to be assigned to an accessible classroom

00069    inaccessible public transportation

00070    lack of curb cuts; inaccessible public transportation

00071    state agencies failed to provide interpretive services
         for deaf people

00072    department of motor vehicles failed to provide interpretive
services

00073    inaccessibility of Seward City Hall and other state
         and local buildings

00075    state university failed to assist in covering expense of 
interpretive services for deaf graduate student
00076    inaccessible public buildings
00077    inaccessible public school
ARIZONA
Page No.
00090    survey showing inaccessibility problems in city of          
Phoenix's public services
00110    inaccessible public transportation
00112    inaccessible restrooms at state recreation areas
00116    department of motor vehicles failed to provide visual          
signs or other assistance for people with hearing impairments
00117    person with disability denied police officer job
00119    Arizona Department of Economic Security took 3          
to 4 years to fix unsafe van lift
00121    county paratransit refused to provide transportation          
to college
00124    department of motor vehicles placed restrictions on          
driver's license because of deafness
00125    teacher with hearing impairment denied numerous          
jobs
00127    department of motor vehicles failed to assist deaf          
people
00129    inaccessible entrance, restroom, water fountain, and          
office at building leased by State
00130    woman injured trying to use inaccessible restroom at          
roadside rest stop; lack of curb cuts
00131    inaccessible social service agencies
ARKANSAS
Page No.
00136    public school failed to enforce accommodations for student

00138    public school teacher refused to allow student with
         disability to use authorized calculator

00139    state university failed to inform student with hearing
         impairment about activities and rules

00140    lack of curb cuts

00141    inaccessible public transportation

00143    inaccessible office area at public housing for persons
         with disabilities

00144    inaccessible public transportation

00145    inaccessible state office of human services; state
         agencies failed to hire persons with disabilities

00146    failure to enforce handicapped parking law

00147    school erroneously placed child with mobility impairment
in special education classes

00149    public schools failed to provide interpretive services
         for deaf people

00150    inaccessible public transportation

00153    person with disability forced to resign employment
         because of architectural barriers

00154    public school held meetings and conferences at inaccessible
locations

00155    physical barriers prevented citizens from voting

00156    rehabilitation services failed to assist people with all
         kinds of disabilities

00159    inaccessible city and county buildings

00161    human services office relocated to inaccessible
         building

00163    lack of curb cuts

CALIFORNIA

Page No.

00166    inaccessible public recreation sites

00168    California Relay System failed to provide telephone
         access to other States for deaf people

00180    public transit failed to provide visual signs for deaf          
people
00181    inaccessible public transportation
00202    California Childrens Services refused to help with         
 cost of caring for child with head injury at home
00206    inaccessible county buildings
00208    deaf people denied access to state agencies that          
lacked TDD's
00210    deaf people denied access to state agencies that          
lacked TDD's
00211    public transit failed to provide visual signs for deaf people
00212    public transit failed to provide visual signs for deaf people
00213    limited out-of-state telephone relay services
00214    inaccessible public transportation limited access to community college
00215    inaccessible public transportation
00218    deaf people denied access to state agencies that lacked TDD's
00219    state mental health services failed to provide access for deaf people
00220    government failed to provide interpretive services  for deaf people
00221    inaccessible public transportation; lack of curb cuts
00222    inaccessible public transportation
00223    inaccessible airport; inaccessible public transportation
00224    California Relay Service failed to enable deaf 
people to make interstate calls
00225    California Relay Service failed to enable deaf 
people to make interstate calls
00226    inaccessible public transportation; inaccessible 
restrooms in public buildings

00227    University of California attempted to terminate employees
with disabilities for taking medical leave

00231    state agencies failed to provide TDD's

00232    person denied opportunity to serve on jury because
         county failed to provide interpretive services for
         deaf people

00236    public school district failed to provide TTD for deaf
         parents

00237    California Relay Service failed to enable deaf people
         to make interstate calls

00240    lack of curb cuts; inaccessible public transportation

00241    inaccessible public transportation

00244    inaccessible public transportation

00245    California Civil Service Exam held at high school
         with inaccessible restrooms

00246    inaccessible restrooms in county administration
         building; lack of curb cuts

00247    inaccessible public transportation prevented persons
         with disabilities from getting to work; State failed to
         enforce laws requiring accessibility

00248    inaccessible public transportation

00249    California Relay Service failed to enable deaf people
         to make interstate calls

00250    inaccessible public transportation

00252    inaccessible public transportation

00253    inaccessible public transportation

00254    inaccessible county courthouse; street signals too fast
         for safe crossing by wheelchair

00255    public functions failed to provide interpretive services
for deaf people

00258    deaf people denied access to state agencies that
         lacked TDD's

00261    California Basic Educational Skills Test discriminated 
against deaf adults who wanted to become teachers of deaf students
00262    department of motor vehicles required doctors to report 
patients with seizure disorders and revoked such patients licenses, 
but did not require reporting of other conditions that could cause erratic driving
COLORADO
Page No.
00266    person in wheelchair passed by five bus drivers, all of 
whom claimed that lifts were broken
00267    lack of curb cuts and ramps; inaccessible public transportation
00268    inaccessible public transportation
00269    inaccessible public transportation
00270    persons with disabilities placed in segregated public housing
00271    inaccessible public transportation
00272    lack of curb cuts forced person in wheelchair to use street
00273    inaccessible county courthouse
00274    inaccessible public transportation
00275    inaccessible public transportation in small cities; public 
schools failed to assist students with disabilities
00276    inaccessible public transportation; inaccessible 
public facilities and recreation sites
00277    political parties held caucuses at inaccessible private home
00280    children with developmental disabilities required to attend 
segregated schools
00281    public school system refused to transfer student with          
disabilities from special to regular school until she brought suit

00283    vocational rehabilitation agency refused to take referrals
from psychiatric halfway house; person denied
drivers license in Virginia because of mental
         illness

CONNECTICUT

Page No.

00285    public school inaccessible to parent with disability

00289    state university denied renewal of contract for graduate
assistantship because of age and disability

DELAWARE

Page No.

00301    inaccessible public high school; inaccessible public
         transportation

00302    inaccessible public schools; inaccessible public
         transportation

00303    inaccessible voting machines; inadequate handicapped
parking

00308    man with physical disability spent 45 minutes crawling
into polling  place because it was inaccessible to
         wheelchairs

00310    inaccessible public transportation; public ceremony
         held at inaccessible building

00314    failure to enforce laws requiring handicapped parking
spaces, which were usually occupied by police cars

00315    high percentage of children with disabilities placed
         in segregated schools

00317    restrictive zoning limited reintegration of institutionalized
people into community

00319    inaccessible voting system

00323    inaccessible public transportation

00325    inaccessible public transportation made person with
         disability late for work; inaccessible library and other
         public buildings

00329    State refused to fund services for people with mental illness
00330    state transit system provided special vouchers for          
persons with physical disabilities, but not for mentally ill
00331    state criminal justice system failed to provide psychiatric treatment
00333    State kept child with schizophrenia in Delaware          
State Hospital because it lacked services for people who could be released
00335    state labor department's restrictive policies 
prevented persons with disabilities from applying for employment
00336    failure to enforce laws requiring handicapped parking spaces, which were usually occupied by police          cars
00337    public transportation refused to transport person carrying oxygen
00338    staff and patients at Delaware State Hospital 
sexually abused women patients
00343    inaccessible public transportation 
00345    state police interrogated deaf citizens without providing interpretive services
00347    vocational high school sought to transfer student back 
to special segregated school

GEORGIA
Page No.
00362    public colleges failed to provide assistance for students with learning disabilities
00365    University of Georgia students with disabilities faced 
architectural barriers, inaccessible public transportation, 
lack of housing, and failure to enforce handicapped parking laws

00366    inaccessible classrooms at University of Georgia

00367    University of Georgia located its office of handicapped
services in inaccessible second floor office

00370    University of Georgia charged students with learning
disabilities $600 per quarter for services that
         other students with disabilities received at no cost

00371    Learning Disability Adult Clinic at University of
         Georgia charged unreasonable fees

00372    inaccessible public transportation

00374    traffic court failed to provide interpretive services
         for deaf person

HAWAII

Page No.

00444    inaccessible public transportation

00446    inaccessible public transportation

00448    state university failed to enforce handicapped parking
laws

00451    state employee in wheelchair forced to resign job
         because frequently unable to get to office due to
         broken elevator in state building; State Commission
         on the Handicapped refused employees request for
         reasonable accommodation

00452    state university failed to provide blind student with
         timely or adequate books on tape for coursework;
         lack of signs or information for blind people using
         public transit

00455    person with disability denied opportunity to testify
         because department of labor held hearing in an inaccessible
room

00456    state employment agency refused to provide interpretive
services for deaf people

00457    public school put three-year-old deaf child in same
         class as fourth graders

00458    quadriplegic person who had California drivers license denied license by Hawaii
00460    state government office refused to interview 
persons with emotional disorder or history of alcoholism
00461    inaccessible state buildings
00462    person with mobility impairment denied serious consideration 
for state job due to unreliability of accessible public transportation
00463    inaccessible public transportation prevented person 
with disability from getting to work; inaccessible public buildings
00464    lack of curb cuts forced person in wheelchair to use street
00467    elevators in public buildings not marked for blind 
people; bus drivers failed to announce stops for blind people
00468    inaccessible public transportation; bus drivers 
harassed mentally retarded passengers
00469    inaccessible public transportation
00472    state mental health system had restrictive institutional policies
00473    state social service employees placed limits on opportunities 
for persons with disabilities based on stereotypical assumptions
00474    lack of curb cuts and ramps
00475    inaccessible public transportation
00476    inaccessible public transportation
00477    inaccessible public library
00479    denial of certain licenses to persons with mental disabilities
00480    inaccessible restroom in state park; lack of curb cuts
00484    state and local government meetings failed to 
provide interpretive services for deaf people
00485    students with disabilities unable to participate in          
school interscholastic sports

00486    blind people prevented from traveling outside State
         because quarantine laws permitted no exemption for
         their guide dogs

00487    state mental health services unavailable for deaf
         people due to failure to train staff

00488    inaccessible public transportation; inaccessible city
         and county buildings

00490    handi-van refused service to person paralyzed from
         waist down

00491    inaccessible public transportation

00492    state agencies failed to monitor conditions in community
residential facilities for persons with disabilities

00494    inaccessible public transportation

00495    inaccessible public transportation

00496    inadequate assistance for deaf person at court
         appearance

IDAHO

Page No.

00502    inaccessible public transportation

00505    inaccessible public transportation

00506    adult victims of abuse with developmental disabilities
denied equal rights to testify in court

00507    inaccessible public recreation activities

00508    inaccessible public transportation

00509    lack of curb cuts

00510    inaccessible public transportation

00511    city and county failed to provide assistance for deaf
         people at public meetings

00514    inaccessible public transportation

00515    public school failed to provide adequate assistance
         for students with disabilities

00516    inaccessible public transportation

00517    public defenders offices and public meetings failed to provide 
interpretive services for deaf people; police harassed persons with 
disabilities who appeared to be intoxicated
00518    vocational rehabilitation agency lacked TTY service
00521    government agencies lacked staff to assist people with head injuries
00522    inaccessible public transportation
00523    inaccessible public transportation
00524    inaccessible public transportation; inaccessible public buildings
00528    limited access at new county courthouse, library, and city hall
00531    school district refused to hire licensed teacher because of speech impediment
00533    public school failed to provide assistance for deaf student
00537    public school failed to provide interpretive services for deaf student
00540    Idaho lacked statewide telephone relay service for  deaf people
00541    department of employment and department of health          
and welfare lacked telephone access for deaf people
00543    inaccessible restrooms at public high school; student          
in wheelchair denied admission to regular classes

ILLINOIS
Page No.
00546    state system for providing ballots to people unable to enter 
polling place and special bus service caused long wait outside in cold weather 
00548    schools that mainstream deaf children refused to hire deaf teacher
00553    government failed to provide interpretive services          
for deaf people at public hearing on school budget

00554    lack of curb cuts; inaccessible public transportation

00559    department of rehabilitation limited services to persons
with disabilities by threatening placement in
         nursing home

00569    police stations lacked TTY service

00572    deaf people arrested and held in jail overnight without
explanation because of failure to provide interpretive
services

00573    inaccessible polling place

00574    inaccessible public schools prevented attendance at
         PTA meetings

00575    inaccessible public transportation

00576    inaccessible public transportation

00578    lack of curb cuts and ramps for wheelchairs

00579    most state housing agencies lacked telecommunications
devices or interpretive services for deaf people

00581    state and local government agencies lacked telecommunications
devices for deaf people

00583    emergency medical, police, and fire services lacked
         TDD's or personnel trained to receive TDD calls

00585    inaccessible public pools; inaccessible restrooms in
         municipal building

00586    inaccessible public transportation

00587    inaccessible polling place

00588    inaccessible polling place

00589    inaccessible public transportation

00590    inaccessible public transportation

00591    inaccessible library

00592    inaccessible voting system

00594    inaccessible polling place

00595    lack of curb cuts

00596    inaccessible public transportation

00597    inaccessible public transportation

00600    inaccessible public transportation

00603    inaccessible public transportation

00605    lack of curb cuts; inaccessible public buildings; 
inaccessible public transportation; inaccessible polling place

INDIANA
Page No.
00608    state vocational rehabilitation agency refused to help          
person it classified as severely disabled
00609    for five years, state vocational rehabilitation agency          
failed to provide assistance
00612    inadequate curb cuts
00613    inaccessible public transportation
00616    inaccessible public transportation
00618    inadequate curb cuts
00619    inaccessible public transportation; inaccessible public facilities
00621    inaccessible public transportation
00622    government agencies failed to provide interpretive          
services and TTY/TDD's for deaf people
00629    deaf counselors discouraged from applying for jobs          
as rehabilitation counselors for deaf people
00637    staff at state psychiatric facilities abused and physically dragged patients
00644    person with disability dismissed as director of deaf          
unit at Central State Hospital
00651    public meetings held at inaccessible locations
00653    inaccessible polling place
00655    state counselors failed to provide rehabilitation assistance to person with head injury

IOWA
Page No.
00659    person dismissed as city bus operator after seeking          
treatment for mental illness
00664    state commission failed to supply necessary equipment for deaf and blind employee

00665    high school limited opportunities for mentally retarded
student to be integrated

KANSAS

Page No.

00670    Kansas Commission of Civil Rights denied legally
         blind person job as investigator because of limited
ability to drive and refused to allow accommodation
that would have permitted use of public
         transportation

00673    police failed to provide interpretive services after
         arresting deaf man

00676    Kansas Department of Transportation fired person
         because she had epilepsy

00679    state investigator failed to examine employment discrimination
claims

00685    inaccessible public transportation

00695    county failed to assist mentally ill with housing and
         vocational opportunities

00696    damaged sidewalks and poor street lighting posed
         risk to persons with disabilities

00704    inaccessible city-owned arena

KENTUCKY

Page No.

00706    bus driver bypassed person standing at stop with
         guide dog

00709    inaccessible public transportation

00712    department of employment services failed to make
         reasonable accommodations for persons with disabilities


00717    lack of curb cuts; inaccessible public transportation

00720    inaccessible public transportation

00723    state employment service refused to place person in
         wheelchair

00724    inaccessible public buildings

00729    public library, police department, and state university 
library lacked personnel trained to use TTY          devices
00731    state university failed to provide assistance to 
part-time teacher with a disability
00732    State prevented deaf teachers from teaching deaf students 
by requiring courses such as music education
00733    inaccessible public transportation
00736    inaccessible public transportation
00740    Kentucky School for the Deaf preferred hiring hearing teachers rather than deaf teachers
LOUISIANA
Page No.
00743    inaccessible housing for graduate students at Louisiana State University
00745    inaccessible public transportation
00748    police assumed person with coordination problems was drunk
00751    inaccessible public transportation
00752    vocational rehabilitation program failed to provide          
services for person with head injury
00753    inaccessible public transportation prevented persons          
with disabilities from getting to work
00758    inaccessible voting machine
00759    Louisiana Sheriffs Pension and Relief Fund denied          
membership to person with disability
00773    inaccessible public transportation; lack of curb cuts
00776    inaccessible buildings at Louisiana State University

MAINE

Page No.
00778    inadequate sidewalk ramps; failure to enforce handicapped parking laws

00780    failure to enforce state regulations requiring accessibility
in public buildings

00782    town refused request for interpretive services for
         deaf people at town meeting

MARYLAND

Page No.

00785    public transportation unsafe for persons with disabilities


00787    public libraries, state prison, and other state offices
         lacked TDD's

00788    department of human relations failed to provide interpretive
services for deaf people and did not answer
TTY calls

00789    vocational rehabilitation counselors failed to help
         deaf people find jobs

00797    inaccessible public transportation

00798    state hospital refused to provide interpretive services
for deaf people

MASSACHUSETTS

Page No.

00808    Office for Children refused to license blind person as
         day-care assistant

00812    inaccessible courthouse

00813    inaccessible restrooms in state building and state
         armory

00816    state college threatened to terminate employee because
of blindness

00829    Massachusetts Adoption Exchange refused to let
         family with mother who had muscular dystrophy
         adopt child

00835    department of vocational rehabilitation hired able-bodied person 
instead of qualified person in  wheelchair

MICHIGAN
Page No.
00920    person denied admission to University of Michigan 
Medical School because of speech impediment
00921    inaccessible state university campuses
00922    65 percent of voting precincts in Detroit inaccessible
00923    buses with lifts often failed to stop for people in          
wheelchairs or their lifts did not work
00924    state employee threatened with discipline for serving          
on and attending meetings of Equal Employment Opportunity Commission advisory committee
00925    state university stadium lacked accessible restrooms,          
water fountains, and telephones
00926    inaccessible public transportation
00928    school system failed to hire teachers who could communicate with deaf students
00932    state university  denied interpretive services to          
part-time deaf student
00933    public transportation refused to serve persons in          
wheelchairs; public agency refused to provide interpretive services for deaf people
00939    state university had transportation system for students 
with disabilities but not for faculty and staff
00947    state university lacked adequate curb ramps
00950    State denied drivers license to person with epilepsy
00958    inaccessible public recreation facilities
00960    inaccessible government buildings
00961    state university denied sabbatical proposal of faculty          
member with disability
00963    Michigan Rehabilitation Services placed people in          
inappropriate positions

00964    Michigan Rehabilitation Services failed to accommodate
mentally ill persons

00968    inaccessible public transportation

00969    man with disability forced to use girls restroom at
         state job

00970    person with disability terminated from county job
         and banned from future county employment

MINNESOTA

Page No.

00974    person with disability and score of 100 was finalist
         for job as director of agency for the blind, but ablebodied
person with score of 70 was hired

00980    person with cerebral palsy humiliated at interview
         for job with state department of education

MISSISSIPPI

Page No.

00853    inaccessible public transportation

00855    inaccessible beaches, pools, and parks

00984    inaccessible classrooms and library at Mississippi
         School for the Deaf

00985    no state agency to provide or coordinate community
         service programs for deaf adults

00986    inaccessible classrooms at Mississippi School for the
         Deaf

00987    public programs failed to provide interpretive services
for deaf people; government failed to post caution
signs warning drivers of deaf children

00988    inaccessible polling places and voting booths

00989    inaccessible public buildings

00990    courts refused to pay for qualified interpretive services
for deaf people

00992    inaccessible state university building

00993    teacher denied position at public elementary school
         because of need for braces and a cane to walk

00994    lack of curb cuts; inaccessible public school rooms; inaccessible 
public transportation
00996    inaccessible department of motor vehicles
00997    inaccessible public transportation; inaccessible public facilities
00998    inaccessible courthouses
00999    state university instructor refused to teach blind person
01000    inaccessible public transportation
01001    inaccessible polling place; city employee required to          
go outside to get to restroom

MISSOURI
Page No.
01003    lack of curb cuts
01004    inaccessible restrooms in public buildings; lack of          
curb cuts
01006    public schools segregated children with disabilities;          
inaccessible school buildings
01009    inaccessible public transportation and public buildings 
such as post offices, libraries, schools, and polling places
01010    state university tried to discourage blind persons          
chosen field of study
01013    inaccessible public transportation
01015    courthouse failed to provide amplified sound system          
in courtrooms
MONTANA
Page No.
01017    inadequate curb cuts
01022    inadequate curb cuts in downtown area
01023    state agencies refused to make reasonable accommodations to paraplegics seeking employment
01024    inaccessible polling place

01026    person in wheelchair forced to vote in street

01027    inaccessible polling place

NEBRASKA

Page No.

01029    government failed to provide interpretive services
         for deaf people serving on juries, commissions, and
         committees

01031    local school district failed to provide interpretive
         services for deaf child

01034    inaccessible entrance at office of county assistance

NEVADA

Page No.

01038    local government failed to provide assistance for people
with head injuries

01043    inaccessible government buildings and public facilities

01044    person with disability denied access to public transportation
because it took too long to get on and off
         bus

01046    community college refused to provide interpretive
         services for deaf people

01050    city ordinance prevented mentally ill from living in
         residential areas

01051    inaccessible public transportation; inadequate curb
         cuts and ramps

01053    failure to enforce handicapped parking laws

01054    lack of sidewalk and crosswalk accommodations for
         persons in wheelchairs

NEW HAMPSHIRE

Page No.

01057    state agency failed to assist persons with head injuries
despite availability of state surplus funds

01061    vocational rehabilitation counselor tried to cut off          
funds and assistance to person with disability
NEW  JERSEY
Page No.
01067    commission for the blind and visually impaired demoted visually impaired person
01068    zoning commission denied permission to open home for persons with head injuries
01069    architectural barriers on Cumberland County College campus
01072    inadequate curb cuts
NEW  MEXICO
Page No.
01080    state university denied entry into school of social          
work to blind person but admitted partially sighted person with lower grades
01083    New Mexico lacked statewide TDD relay service
01091    prisoners with developmental disabilities subjected          
to longer terms and abused by other prisoners in state correctional system
01092    inaccessible public transportation
01095    University of New Mexico failed to provide assistance for blind student
01097    city and county government offices lacked TDD's
01098    University of New Mexico hospital failed to provide          
interpretive services for deaf patients
01099    University of New Mexico failed to provide interpretive services for deaf students
01100    inaccessible buildings on University of New Mexico campus

NEW YORK

Page No.

01109    state agencies failed to hire persons with disabilities

01114    custodian in public high school denied request of person
with disability to use locked elevator

01119    at state legislature, person in wheelchair had to wait
         45 minutes to use freight elevator

01129    public  village meetings held in second floor meeting
room with no elevator; many polling places
         inaccessible

01130    lack of curb cuts; failure to enforce handicapped parking
laws

01134    inaccessible state parks and public beaches

NORTH CAROLINA

Page No.

01144    public elementary school initially denied admission
         and then charged extra fee for child with Downs
         Syndrome to attend after-school day-care program

01155    blind people told not to participate in regular public
         parks and recreation programs

01158    state agencies, other than services for the blind and
         vocational rehabilitation, employed few persons
         with disabilities

01161    police arrested and jailed deaf person without providing
interpretive services

NORTH DAKOTA

Page No.

01170    person with disability denied access to driver's license
exam because held in inaccessible room

01172    inaccessible polling places

01175    lack of curb cuts; failure to enforce handicapped parking
laws; inaccessible polling places; inaccessible city
         government meetings

01178    failure to enforce handicapped parking laws
01183    inaccessible polling places; inaccessible state and          
local government buildings
01185    government agencies failed to enforce policies regarding hiring 
persons with disabilities; inaccessible polling places; inaccessible public buildings
01186    state and local government failed to hire persons          
with disabilities; inaccessible polling places
01187    failure to enforce handicapped parking laws
01196    person with head-injury disability denied consideration for position 
of election polls inspector

OHIO
Page No.
01215    city failed to trim trees regularly, which posed a          
hazard to blind people
01216    inaccessible state, county, and city buildings
01218    inaccessible social service agency offices; inaccessible          
public transportation
01221    vocational rehabilitation agency denied assistance to          
person with disability
01224    rehabilitation services agency failed to assist paranoid schizophrenic
01229    vocational rehabilitation agency discouraged person          
with disability from being a nurse
01230    persons with disabilities denied jobs because of inaccessible public transportation
01231    blind person denied drivers license though legally          
eligible
01234    inaccessible public transportation; lack of curb cuts
01235    public paratransit system often left passengers          
stranded
01236    vocational rehabilitation agency steered person with          
mental disability to menial job, despite his Ph.D. degree

01239    police failed to provide interpretive services for deaf
         person who was arrested

01241    Cleveland State University lacked wheelchair ramps

01242    inaccessible public transportation

OKLAHOMA

Page No.

01251    Tulsa Housing Authority failed to communicate with
         and provide information to tenants with disabilities

01258    state employment office lacked TDD or workers with
         interpretive skills; state university paid deaf employees
less than hearing employees; state agencies made
         no effort to hire deaf applicants

01265    police officer pointed gun at person with disability
         who could not get out of car quickly

01266    inaccessible public transportation

01269    person with speech impediment denied numerous
         state jobs

01271    inaccessible restrooms at city parks

01275    state government held meeting at hotel with inaccessible
restrooms

01278    person in wheelchair worked at polling  place with
         inaccessible restrooms

01280    inaccessible polling places

01286    qualified blind person who offered to provide own
         driver denied job as state social worker

OREGON

Page No.

01370    blind people unable to access printed material from
         state government

01375    school system barred child with cerebral palsy from
         physical education class and gave her cleaning job
         instead

01377    person with two college degrees and extensive professional 
experience turned down for appropriate state government jobs and 
advised to seek entry level jobs because of his disability
01378    commission for the handicapped lacked funds to enforce laws

PENNSYLVANIA
Page No.
01391    public library had restrictive policy regarding issuance 
of library cards to residents of group homes
01397    government failed to provide interpretive services          
for deaf people at school budget hearing
01399    inaccessible public transportation
01407    inaccessible polling places
01408    inaccessible public transportation
01409    inaccessible polling places
01410    inaccessible polling place
01413    inaccessible public transportation; lack of curb cuts
01421    inaccessible public library
01423    inaccessible automatic ticket dispensers on Pennsylvania Turnpike
01425    bus drivers refused to transport person in wheelchair
01427    inaccessible county offices
01429    lack of curb cuts
01430    GED programs offered at inaccessible public schools;          
bus drivers unwilling or unable to use wheelchair lifts
01432    child unable to enroll in first grade because of inaccessible classroom
01434    lack of curb cuts; inaccessible public transportation
01435    lack of curb cuts in rural areas
01436    inaccessible polling place

01439    unsafe curb cuts

01441    inaccessible state office building

SOUTH CAROLINA

Page No.

01454    government failed to provide 911 emergency service
         for deaf people

01457    state and local agencies, library, and police and fire
         departments lacked TDD's; government failed to provide
interpretive services for deaf people at meetings

SOUTH DAKOTA

Page No.

01466    school district failed to provide adequate services to
         child with disability

01467    traffic light and fire hydrant placed where they posed
         obstacle to blind pedestrians and those in wheelchairs
who needed to use curb cuts

01469    inaccessible polling places

01470    inaccessible public transportation

01472    State failed to hire persons with disabilities without
         giving a reason

01475    criminal court failed to provide interpretive services
         for deaf people

01476    state university denied blind student opportunity to
         practice teach as required for teaching certificate

TEXAS

Page No.

01483    poles obstructed sidewalks; lack of curb cuts; inaccessible
public transportation

01503    state teachers exam required deaf teachers who
         wanted to teach deaf children to pass section on
         speech assessment and listening

01514    medical examination required for renewal of drivers          
license despite unblemished 20-year driving record
01520    inadequate handicapped parking spaces
01521    state vocational rehabilitation agency refused to assist 
college student who chose to major in political science
01522    employee of county human services agency denied 
handicapped parking place
01526    failure to enforce handicapped parking laws
01527    inaccessible state university transportation system
01529    denial of drivers licenses or accommodations to take          
driver's test
01531    inaccessible buildings at state university
01536    state hospital sought to discharge mentally ill boy          
with HIV
01540    special transit system refused to transport man with          
mental retardation though he could not use regular bus
01542    deaf man not permitted to take state cosmetology 
exam with assistance from interpreter
01543    blind man not permitted to take state chiropractic 
exam because he could not read x-rays alone
01549    deaf instructors unable to pass state teachers exam          
for teachers of deaf students that assessed speech  and language skills
01551    inadequate handicapped parking and enforcement
UTAH
Page No.
01554    state rehabilitation service had never hired deaf          
counselor or administrator
01556    child denied admission to public school because first 
grade teacher refused to teach him
01563    public school failed to implement state review panel          
findings regarding accommodation for child with disability

01576    state office for persons with disabilities failed to hire
         such persons; inaccessible public transportation

01577    state government denied persons with disabilities
         upper level management jobs

01580    rehabilitation services agency discriminated against
         employee with reading disability

01581    qualified blind teacher denied job and told that school
         needed teacher who could also coach football, but
         school hired sighted person who was not a coach

01584    inaccessible public transportation

01586    inaccessible government office

01587    public school teacher refused to give child with learning
disability his grades and said he did not belong
         in public school

01592    Utah denied mainstream education to child with
         Down's Syndrome, though child had been mainstreamed
in another State

01595    person with disability involuntarily hospitalized and
         abused by state university hospital

01613    inaccessible public high school facilities

VERMONT

Page No.

01634    zoning board denied use permit for community mental
health center

VIRGINIA

Page No.

01642    student with learning disability misclassified as mentally
retarded and deemed ineligible to take drama
         class at public school

01646    inaccessible buildings at state school for blind and
         deaf youth

01647    failure to enforce handicapped parking laws

01654    inaccessible restrooms in government buildings; failure
to enforce handicapped parking laws

01656    state programs for persons with disabilities failed to          
communicate with deaf people
01660    lack of state institutional care to rehabilitate people          
with head injuries
01663    inaccessible traffic court
01664    inaccessible public transportation
01667    lack of curb cuts
01668    inaccessible public transportation prevented persons          
with disabilities from voting
01671    state and local government failed to provide interpretive 
services for deaf people at meetings
01674    lack of curb cuts outside county courthouse
01675    deaf people denied access to 911 emergency services
01676    inaccessible courthouse
01677    inaccessible public transportation
01678    lack of curb cuts and ramp for access to courthouse
01679    inaccessible county courthouse
01680    inaccessible courthouse and library
01682    inaccessible high school
01683    lack of curb cuts at citys main intersection
01684    person in wheelchair received ticket for obstructing          
street traffic even though sidewalks not accessible
01686    inaccessible transportation on state university          campus
WASHINGTON
Page No.
01690    deaf people required to pay for interpretive services          
in court
01692    state governments lack of TDD deterred deaf people          
from applying for employment
01694    government office lacked TDD and interpretive services for deaf people

01767    inaccessible polling places

01771    blind and deaf people denied equal access to jury
         service

WYOMING

Page No.

01773    State lacked telephone relay system for deaf people

01775    inaccessible state buildings

01777    department of motor vehicles denied drivers license
         to person with epilepsy

01780    inaccessible buildings at state university

01781    zoning board denied permit for group home for persons
with disabilities

01786    person in wheelchair denied marriage license because
         courthouse was inaccessible

01656    state programs for persons with disabilities failed to          
communicate with deaf people
01660    lack of state institutional care to rehabilitate people          
with head injuries
01663    inaccessible traffic court
01664    inaccessible public transportation
01667    lack of curb cuts
01668    inaccessible public transportation prevented persons          
with disabilities from voting
01671    state and local government failed to provide interpretive services for deaf people at meetings
01674    lack of curb cuts outside county courthouse
01675    deaf people denied access to 911 emergency services
01676    inaccessible courthouse
01677    inaccessible public transportation
01678    lack of curb cuts and ramp for access to courthouse
01679    inaccessible county courthouse
01680    inaccessible courthouse and library
01682    inaccessible high school
01683    lack of curb cuts at citys main intersection
01684    person in wheelchair received ticket for obstructing          
street traffic even though sidewalks not accessible
01686    inaccessible transportation on state university          
campus
WASHINGTON 
Page No.
01690    deaf people required to pay for interpretive services          
in court
01692    state governments lack of TDD deterred deaf people          
from applying for employment
01694    government office lacked TDD and interpretive services for deaf people

01767    inaccessible polling places

01771    blind and deaf people denied equal access to jury
         service

WYOMING
Page No.

01773    State lacked telephone relay system for deaf people

01775    inaccessible state buildings

01777    department of motor vehicles denied drivers license
         to person with epilepsy

01780    inaccessible buildings at state university

01781    zoning board denied permit for group home for persons
with disabilities

01786    person in wheelchair denied marriage license because
         courthouse was inaccessible

City of Boerne v. P. F. Flores, Archbishop of San Antonio, et al.

Argued February 19, 1997.

Decided June 25, 1997.

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

*509 Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Thomas, and Ginsburg, JJ., joined, and in which Scalia, J., joined as to all but Part III—A-1. Stevens, J., filed a concurring opinion, post, p. 536. Scalia, J., filed an opinion concurring in part, in which Stevens, J., joined, post, p. 537. O'Connor, J., filed a dissenting opinion, in which Breyer, J., joined except as to the first paragraph of Part I, post, p. 544. Souter, J., post, p. 565, and Breyer, J., post,p. 566, filed dissenting opinions.

Marci A. Hamilton argued the cause for petitioner. With her on the briefs were Lowell F. Denton and Gordon L. Hollon.

Jeffrey S. Sutton, State Solicitor of Ohio, argued the cause for the State of Ohio et al. as amici curiae urging reversal. With him on the brief were Betty D. Montgomery, Attorney *510 General of Ohio, Robert C. Maier and Todd Marti,Assistant Attorneys General, and the Attorneys General for their respective jurisdictions as follows: Malaetasi M. Togafau of American Samoa, Grant Woods of Arizona, Gale A. Norton of Colorado, M. Jane Brady of Delaware, Robert Butterworth of Florida, Calvin Holloway, Sr., of Guam, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, Mike Moore of Mississippi, Frankie Sue Del Papaof Nevada, Jeffrey R. Howard of New Hampshire, Michael F. Easley of North Carolina, W. A. Drew Edmondson of Oklahoma, Thomas W. Corbett, Jr., of Pennsylvania, and Julio A. Brady of the Virgin Islands.

Douglas Laycock argued the cause for respondent Flores. With him on the brief were Thomas Drought and Patricia J. Schofield. Acting Solicitor General Dellinger argued the cause for the United States. With him on the brief were Assistant Attorney General Hunger, Deputy Solicitor General Waxman, Patricia A. Millett, and Michael Jay Singer.*

*

 Briefs of amici curiae urging reversal were filed for the Commonwealth of Virginia by James S. Gilmore II, Attorney General, David E. Anderson, Chief Deputy Attorney General, William Henry Hurd,Deputy Attorney General, and Lee E. Goodman; for the Clarendon Foundation by Ronald D. Maines and Jay S. Bybee; for the National Right to Work Legal Defense Foundation, Inc., by Bruce N. Cameron; and for the San Antonio Conservation Society et al. by Robert A. Long, Jr., and Ivan K. Fong.

Briefs of amici curiae urging affirmance were filed for the State of Maryland et al. by J. Joseph Curran, Jr., Attorney General of Maryland, Jack Schwartz and Steven M. Sullivan, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Richard Blumenthal of Connecticut, Scott Harshbarger of Massachusetts, and Dennis C. Vacco of New York; for members of the Virginia House of Delegates et al. by Mitchell A. Karlan; for Senator Orrin G. Hatch et al. by Carter G. Phillips and Gene C. Schaerr; for Senator Edward M. Kennedy et al. by Clifford M. Sloan; for the American Bar Association by N. Lee Cooper, Stuart H. Newberger, and Joseph N. Onek; for the American Center for Law and Justice by Jay Alan Sekulow, James M. Henderson, Sr., Walter M. Weber, Keith A. Fournier,and John G. Stepanovich; for the Beckett Fund for Religious Liberty by Kevin J. Hasson; for the Church of Jesus Christ of Latter-day Saints by W. Cole Durham, Jr., James A. Serritella, James C. Geoly, Kevin R. Gustafson, and Von G. Keetch; for the Coalition for the Free Exercise of Religion by Marc D. Stern, Oliver S. Thomas, J. Brent Walker, Melissa Rogers, Steven T. McFarland, Samuel Rabinove, Richard Foltin, David Zwiebel, Steven R. Shapiro, Steven K. Green, and Jack F. Trope; for the Defenders of Property Rights et al. by Nancie G. Marzulla; for the Minnesota Family Council et al.by Jordan W. Lorence; for the NAACP Legal Defense and Educational Fund, Inc., by Elaine R. Jones, Theodore M. Shaw, and Norman J. Chachkin; for the National Committee for Amish Religious Freedom by William Bentley Ball and Richard E. Connell; for the National Jewish Commission on Law and Public Affairs by Nathan Lewin, Mathew S. Nosanchuk, and Dennis Rapps; for the National Trust for Historic Preservation in the United States by John H. Beisner and Elizabeth S. Merritt; for the Prison Fellowship Ministries et al. by Michael Joseph Woodruff, Scott J. Ward, J. Matthew Szymanski, Stephen M. Clarke,and Isaac M. Jaroslawicz; and for the United States Catholic Conference et al. by Michael W. McConnell, Mark E. Chopko, and Jeffrey Hunter Moon.

Briefs of amici curiae were filed for the State of Texas by Dan Morales, Attorney General, Jorge Vega,First Assistant Attorney General, and Samuel W. Goodhope and Javier Aguilar, Special Assistant Attorneys General; for the Center for the Community Interest by Gilbert R. Serota; for Children's Healthcare is a Legal Duty, Inc., et al. by Robert J. Bruno; for the Knights of Columbus by Thomas D. Yannucci and Carl A. Anderson; for the Rutherford Institute by John W. Whitehead, James A. Hayes, Jr., and Brian L. Day; and by Thurston Greene, pro se.

*511 Justice Kennedy delivered the opinion of the Court.†

A decision by local zoning authorities to deny a church a building permit was challenged under the Religious Freedom Restoration Act of 1993 (RFRA or Act), 107 Stat. 1488, 42 U. S. C. § 2000bb et seq. The case calls into question the authority of Congress to enact RFRA. We conclude the statute exceeds Congress' power.

I

Situated on a hill in the city of Boerne, Texas, some 28 miles northwest of San Antonio, is St. Peter Catholic Church. Built in 1923, the church's structure replicates the mission *512 style of the region's earlier history. The church seats about 230 worshippers, a number too small for its growing parish. Some 40 to 60 parishioners cannot be accommodated at some Sunday masses. In order to meet the needs of the congregation the Archbishop of San Antonio gave permission to the parish to plan alterations to enlarge the building.

A few months later, the Boerne City Council passed an ordinance authorizing the city's Historic Landmark Commission to prepare a preservation plan with proposed historic landmarks and districts. Under the ordinance, the commission must preapprove construction affecting historic landmarks or buildings in a historic district.

Soon afterwards, the Archbishop applied for a building permit so construction to enlarge the church could proceed. City authorities, relying on the ordinance and the designation of a historic district (which, they argued, included the church), denied the application. The Archbishop brought this suit challenging the permit denial in the United States District Court for the Western District of Texas. 877 F. Supp. 355 (1995).

The complaint contained various claims, but to this point the litigation has centered on RFRA and the question of its constitutionality. The Archbishop relied upon RFRA as one basis for relief from the refusal to issue the permit. 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. 73 F. 3d 1352 (1996). We granted certiorari, 519 U. S. 926 (1996), and now reverse.

II

Congress enacted RFRA in direct response to the Court's decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990). There we considered a Free Exercise Clause claim brought by members of the *513 Native American Church who were denied unemployment benefits when they lost their jobs because they had used peyote. Their practice was to ingest peyote for sacramental purposes, and they challenged an Oregon statute of general applicability which made use of the drug criminal. In evaluating the claim, we declined to apply the balancing test set forth in Sherbert v. Verner, 374 U. S. 398 (1963), under which we would have asked whether Oregon's prohibition substantially burdened a religious practice and, if it did, whether the burden was justified by a compelling government interest. We stated:

"[G]overnment's ability to enforce generally applicable prohibitions of socially harmful conduct . . . cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development. To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is `compelling'. . . contradicts both constitutional tradition and common sense." 494 U. S., at 885 (internal quotation marks and citations omitted).

The application of the Sherbert test, the Smith decision explained, would have produced an anomaly in the law, a constitutional right to ignore neutral laws of general applicability. The anomaly would have been accentuated, the Court reasoned, by the difficulty of determining whether a particular practice was central to an individual's religion. We explained, moreover, that it "is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds." 494 U. S., at 887(internal quotation marks and citation omitted).

The only instances where a neutral, generally applicable law had failed to pass constitutional muster, the Smith Court *514 noted, were cases in which other constitutional protections were at stake. Id. , at 881-882. In Wisconsin v. Yoder,406 U. S. 205 (1972), for example, we invalidated Wisconsin's mandatory school-attendance law as applied to Amish parents who refused on religious grounds to send their children to school. That case implicated not only the right to the free exercise of religion but also the right of parents to control their children's education.

The Smith decision acknowledged the Court had employed the Sherbert test in considering free exercise challenges to state unemployment compensation rules on three occasions where the balance had tipped in favor of the individual. See Sherbert, supra; Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 (1981); Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136 (1987). Those cases, the Court explained, stand for "the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of religious hardship without compelling reason." 494 U. S., at 884 (internal quotation marks omitted). By contrast, where a general prohibition, such as Oregon's, is at issue, "the sounder approach, and the approach in accord with the vast majority of our precedents, is to hold the test inapplicable to [free exercise] challenges." Id., at 885. Smith held that neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.

Four Members of the Court disagreed. They argued the law placed a substantial burden on the Native American Church members so that it could be upheld only if the law served a compelling state interest and was narrowly tailored to achieve that end. Id., at 894. Justice O'Connor concluded Oregon had satisfied the test, while Justice Blackmun, joined by Justice Brennan and Justice Marshall, could see no compelling interest justifying the law's application to the members.

*515 These points of constitutional interpretation were debated by Members of Congress in hearings and floor debates. Many criticized the Court's reasoning, and this disagreement resulted in the passage of RFRA. Congress announced:

"(1) [T]he framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution;

"(2) laws `neutral' toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;

"(3) governments should not substantially burden religious exercise without compelling justification;

"(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; and

"(5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests." 42 U. S. C. § 2000bb(a).

The Act's stated purposes 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 free exercise of religion is substantially burdened; and

"(2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government." § 2000bb(b).

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 *516 a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." § 2000bb—1. The Act's mandate applies to any "branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States," as well as to any "State, or . . . subdivision of a State." § 2000bb—2(1). The Act's universal coverage is confirmed in § 2000bb—3(a), under which RFRA "applies to all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after [RFRA's enactment]." In accordance with RFRA's usage of the term, we shall use "state law" to include local and municipal ordinances.

III

A

Under our Constitution, the Federal Government is one of enumerated powers. McCulloch v. Maryland, 4 Wheat. 316, 405 (1819); see also The Federalist No. 45, p. 292 (C. Rossiter ed. 1961) (J. Madison). The judicial authority to determine the constitutionality of laws, in cases and controversies, is based on the premise that the "powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written." Marbury v. Madison, 1 Cranch 137, 176 (1803).

Congress relied on its Fourteenth Amendment enforcement power in enacting the most far-reaching and substantial of RFRA's provisions, those which impose its requirements on the States. See Religious Freedom Restoration Act of 1993, S. Rep. No. 103-111, pp. 13-14 (1993) (Senate Report); H. R. Rep. No. 103-88, p. 9 (1993) (House Report). The Fourteenth Amendment provides, in relevant part:

"Section 1. . . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process *517 of law; nor deny to any person within its jurisdiction the equal protection of the laws.

. . . . .

"Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

The parties disagree over whether RFRA is a proper exercise of Congress' § 5 power "to enforce" by "appropriate legislation" the constitutional guarantee that no State shall deprive any person of "life, liberty, or property, without due process of law," nor deny any person "equal protection of the laws."

In defense of the Act, respondent the Archbishop contends, with support from the United States, that RFRA is permissible enforcement legislation. Congress, it is said, is only protecting by legislation one of the liberties guaranteed by the Fourteenth Amendment's Due Process Clause, the free exercise of religion, beyond what is necessary under Smith . It is said the congressional decision to dispense with proof of deliberate or overt discrimination and instead concentrate on a law's effects accords with the settled understanding that § 5 includes the power to enact legislation designed to prevent, as well as remedy, constitutional violations. It is further contended that Congress' § 5 power is not limited to remedial or preventive legislation.

All must acknowledge that § 5 is "a positive grant of legislative power" to Congress, Katzenbach v. Morgan, 384 U. S. 641, 651 (1966). In Ex parte Virginia,100 U. S. 339, 345— 346 (1880), we explained the scope of Congress' § 5 power in the following broad terms:

"Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not *518prohibited, is brought within the domain of congressional power."

Legislation which deters or remedies constitutional violations can fall within the sweep of Congress' enforcement power even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into "legislative spheres of autonomy previously reserved to the States." Fitzpatrick v. Bitzer, 427 U. S. 445, 455 (1976). For example, the Court upheld a suspension of literacy tests and similar voting requirements under Congress' parallel power to enforce the provisions of the Fifteenth Amendment, see U. S. Const., Amdt. 15, § 2, as a measure to combat racial discrimination in voting, South Carolina v. Katzenbach,383 U. S. 301, 308 (1966), despite the facial constitutionality of the tests under Lassiter v. Northampton County Bd. of Elections, 360 U. S. 45 (1959). We have also concluded that other measures protecting voting rights are within Congress' power to enforce the Fourteenth and Fifteenth Amendments, despite the burdens those measures placed on the States. South Carolina v. Katzenbach, supra(upholding several provisions of the Voting Rights Act of 1965); Katzenbach v. Morgan, supra (upholding ban on literacy tests that prohibited certain people schooled in Puerto Rico from voting); Oregon v. Mitchell, 400 U. S. 112 (1970)(upholding 5-year nationwide ban on literacy tests and similar voting requirements for registering to vote); City of Rome v. United States, 446 U. S. 156, 161 (1980)(upholding 7-year extension of the Voting Rights Act's requirement that certain jurisdictions preclear any change to a "`standard, practice, or procedure with respect to voting' "); see also James Everard's Breweries v. Day, 265 U. S. 545 (1924) (upholding ban on medical prescription of intoxicating malt liquors as appropriate to enforce Eighteenth Amendment ban on manufacture, sale, or transportation of intoxicating liquors for beverage purposes).

It is also true, however, that "[a]s broad as the congressional enforcement power is, it is not unlimited." Oregon v. *519 Mitchell, supra, at 128 (opinion of Black, J.). In assessing the breadth of § 5's enforcement power, we begin with its text. Congress has been given the power "to enforce" the "provisions of this article." We agree with respondent, of course, that Congress can enact legislation under § 5 enforcing the constitutional right to the free exercise of religion. The "provisions of this article," to which § 5 refers, include the Due Process Clause of the Fourteenth Amendment. Congress' power to enforce the Free Exercise Clause follows from our holding in Cantwell v. Connecticut, 310 U. S. 296, 303 (1940), that the "fundamental concept of liberty embodied in [the Fourteenth Amendment's Due Process Clause] embraces the liberties guaranteed by the First Amendment." See also United States v. Price, 383 U. S. 787, 789 (1966) (there is "no doubt of the power of Congress to enforce by appropriate criminal sanction every right guaranteed by the Due Process Clause of the Fourteenth Amendment" (internal quotation marks and citation omitted)).

Congress' power under § 5, however, extends only to "enforc[ing]" the provisions of the Fourteenth Amendment. The Court has described this power as "remedial," South Carolina v. Katzenbach, supra, at 326. The design of the Amendment and the text of § 5 are inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment's restrictions on the States. Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is. It has been given the power "to enforce," not the power to determine what constitutes a constitutional violation. Were it not so, what Congress would be enforcing would no longer be, in any meaningful sense, the "provisions of [the Fourteenth Amendment]."

While the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law is not easy to discern, and *520 Congress must have wide latitude in determining where it lies, the distinction exists and must be observed. There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. Lacking such a connection, legislation may become substantive in operation and effect. History and our case law support drawing the distinction, one apparent from the text of the Amendment.

1

The Fourteenth Amendment's history confirms the remedial, rather than substantive, nature of the Enforcement Clause. The Joint Committee on Reconstruction of the 39th Congress began drafting what would become the Fourteenth Amendment in January 1866. The objections to the Committee's first draft of the Amendment, and the rejection of the draft, have a direct bearing on the central issue of defining Congress' enforcement power. In February, Republican Representative John Bingham of Ohio reported the following draft Amendment to the House of Representatives on behalf of the Joint Committee:

"The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property." Cong. Globe, 39th Cong., 1st Sess., 1034 (1866).

The proposal encountered immediate opposition, which continued through three days of debate. Members of Congress from across the political spectrum criticized the Amendment, and the criticisms had a common theme: The proposed Amendment gave Congress too much legislative power at the expense of the existing constitutional structure. E. g., id., at 1063-1065 (statement of Rep. Hale); id., at 1082 *521 (statement of Sen. Stewart); id., at 1095 (statement of Rep. Hotchkiss); id., at App. 133-135 (statement of Rep. Rogers). Democrats and conservative Republicans argued that the proposed Amendment would give Congress a power to intrude into traditional areas of state responsibility, a power inconsistent with the federal design central to the Constitution. Typifying these views, Republican Representative Robert Hale of New York labeled the Amendment "an utter departure from every principle ever dreamed of by the men who framed our Constitution," id., at 1063, and warned that under it "all State legislation, in its codes of civil and criminal jurisprudence and procedure . . . may be overridden, may be repealed or abolished, and the law of Congress established instead." Ibid. Senator William Stewart of Nevada likewise stated the Amendment would permit "Congress to legislate fully upon all subjects affecting life, liberty, and property," such that "there would not be much left for the State Legislatures," and would thereby "work an entire change in our form of government." Id., at 1082; accord, id., at 1087 (statement of Rep. Davis); id., at App. 133 (statement of Rep. Rogers). Some radicals, like their brethren "unwilling that Congress shall have any such power . . . to establish uniform laws throughout the United States upon . . . the protection of life, liberty, and property," id., at 1095 (statement of Rep. Hotchkiss), also objected that giving Congress primary responsibility for enforcing legal equality would place power in the hands of changing congressional majorities, ibid. See generally Bickel, The Original Understanding and the Segregation Decision, 69 Harv. L. Rev. 1, 57 (1955); Graham, Our "Declaratory" Fourteenth Amendment, 7 Stan. L. Rev. 3, 21 (1954).

As a result of these objections having been expressed from so many different quarters, the House voted to table the proposal until April. See, e. g., B. Kendrick, Journal of the Joint Committee of Fifteen on Reconstruction 215, 217 (1914); Cong. Globe, 42d Cong., 1st Sess., App. 115 (1871) (statement *522 of Rep. Farnsworth). The congressional action was seen as marking the defeat of the proposal. See The Nation, Mar. 8, 1866, p. 291 ("The postponement of the amendment . . . is conclusive against the passage of [it]"); New York Times, Mar. 1, 1866, p.4 ("It is doubtful if this ever comes before the House again . . ."); see also Cong. Globe, 42d Cong., 1st Sess., at App. 115 (statement of Rep. Farnsworth) (The Amendment was "given its quietus by a postponement for two months, where it slept the sleep that knows no waking"). The measure was defeated "chiefly because many members of the legal profession s[aw] in [it] . . . a dangerous centralization of power," The Nation, supra, at 291, and "many leading Republicans of th[e] House [of Representatives] would not consent to so radical a change in the Constitution," Cong. Globe, 42d Cong., 1st Sess., at App. 151 (statement of Rep. Garfield). The Amendment in its early form was not again considered. Instead, the Joint Committee began drafting a new article of Amendment, which it reported to Congress on April 30, 1866.

Section 1 of the new draft Amendment imposed self-executing limits on the States. Section 5 prescribed that "[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article." See Cong. Globe, 39th Cong., 1st Sess., at 2286. Under the revised Amendment, Congress' power was no longer plenary but remedial. Congress was granted the power to make the substantive constitutional prohibitions against the States effective. Representative Bingham said the new draft would give Congress "the power . . . to protect by national law the privileges and immunities of all the citizens of the Republic . . . whenever the same shall be abridged or denied by the unconstitutional acts of any State." Id., at 2542. Representative Stevens described the new draft Amendment as "allow[ing] Congress to correct the unjust legislation of the States." Id., at 2459. See also id., at 2768 (statement of Sen. Howard) (§ 5 "enables Congress, in case the States shall enact *523 laws in conflict with the principles of the amendment, to correct that legislation by a formal congressional enactment"). See generally H. Brannon, The Rights and Privileges Guaranteed by the Fourteenth Amendment to the Constitution of the United States 387 (1901) (Congress' "powers are only prohibitive, corrective, vetoing, aimed only at undue process of law"); id., at 420, 452-455 (same); T. Cooley, Constitutional Limitations 294, n. 1 (2d ed. 1871) ("This amendment of the Constitution does not concentrate power in the general government for any purpose of police government within the States; its object is to preclude legislation by any State which shall `abridge the privileges or immunities of citizens of the United States' "). The revised Amendment proposal did not raise the concerns expressed earlier regarding broad congressional power to prescribe uniform national laws with respect to life, liberty, and property. See, e. g., Cong. Globe, 42d Cong., 1st Sess., at App. 151 (statement of Rep. Garfield) ("The [Fourteenth Amendment] limited but did not oust the jurisdiction of the State[s]"). After revisions not relevant here, the new measure passed both Houses and was ratified in July 1868 as the Fourteenth Amendment.

The significance of the defeat of the Bingham proposal was apparent even then. During the debates over the Ku Klux Klan Act only a few years after the Amendment's ratification, Representative James Garfield argued there were limits on Congress' enforcement power, saying "unless we ignore both the history and the language of these clauses we cannot, by any reasonable interpretation, give to [§ 5] . . . the force and effect of the rejected [Bingham] clause." Ibid.; see also id.,at App. 115-116 (statement of Rep. Farnsworth). Scholars of successive generations have agreed with this assessment. See H. Flack, The Adoption of the Fourteenth Amendment 64 (1908); Bickel, The Voting Rights Cases, 1966 S. Ct. Rev. 79, 97.

The design of the Fourteenth Amendment has proved significant also in maintaining the traditional separation of powers *524 between Congress and the Judiciary. The first eight Amendments to the Constitution set forth self-executing prohibitions on governmental action, and this Court has had primary authority to interpret those prohibitions. The Bingham draft, some thought, departed from that tradition by vesting in Congress primary power to interpret and elaborate on the meaning of the new Amendment through legislation. Under it, "Congress, and not the courts, was to judge whether or not any of the privileges or immunities were not secured to citizens in the several States." Flack, supra, at 64. While this separation-of-powers aspect did not occasion the widespread resistance which was caused by the proposal's threat to the federal balance, it nonetheless attracted the attention of various Members. See Cong. Globe, 39th Cong., 1st Sess., at 1064 (statement of Rep. Hale) (noting that Bill of Rights, unlike the Bingham proposal, "provide[s] safeguards to be enforced by the courts, and not to be exercised by the Legislature"); id., at App. 133 (statement of Rep. Rogers) (prior to Bingham proposal it "was left entirely for the courts . . . to enforce the privileges and immunities of the citizens"). As enacted, the Fourteenth Amendment confers substantive rights against the States which, like the provisions of the Bill of Rights, are self-executing. Cf. South Carolina v. Katzenbach, 383 U. S., at 325(discussing Fifteenth Amendment). The power to interpret the Constitution in a case or controversy remains in the Judiciary.

2

The remedial and preventive nature of Congress' enforcement power, and the limitation inherent in the power, were confirmed in our earliest cases on the Fourteenth Amendment. In the Civil Rights Cases, 109 U. S. 3 (1883), the Court invalidated sections of the Civil Rights Act of 1875 which prescribed criminal penalties for denying to any person "the full enjoyment of" public accommodations and conveyances, on the grounds that it exceeded Congress' power *525 by seeking to regulate private conduct. The Enforcement Clause, the Court said, did not authorize Congress to pass "general legislation upon the rights of the citizen, but corrective legislation, that is, such as may be necessary and proper for counteracting such laws as the States may adopt or enforce, and which, by the amendment, they are prohibited from making or enforcing . . . ." Id., at 13-14. The power to "legislate generally upon" life, liberty, and property, as opposed to the "power to provide modes of redress" against offensive state action, was "repugnant" to the Constitution. Id., at 15. See also United States v. Reese, 92 U. S. 214, 218 (1876); United States v. Harris, 106 U. S. 629, 639 (1883); James v. Bowman, 190 U. S. 127, 139 (1903). Although the specific holdings of these early cases might have been superseded or modified, see, e. g., Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241 (1964); United States v. Guest, 383 U. S. 745 (1966), their treatment of Congress' § 5 power as corrective or preventive, not definitional, has not been questioned.

Recent cases have continued to revolve around the question whether § 5 legislation can be considered remedial. In South Carolina v. Katzenbach, supra,we emphasized that "[t]he constitutional propriety of [legislation adopted under the Enforcement Clause] must be judged with reference to the historical experience . . . it reflects." 383 U. S., at 308. There we upheld various provisions of the Voting Rights Act of 1965, finding them to be "remedies aimed at areas where voting discrimination has been most flagrant," id., at 315, and necessary to "banish the blight of racial discrimination in voting, which has infected the electoral process in parts of our country for nearly a century," id., at 308. We noted evidence in the record reflecting the subsisting and pervasive discriminatory—and therefore unconstitutional—use of literacy tests. Id., at 333-334. The Act's new remedies, which used the administrative resources of the Federal Government, included the suspension of both literacy tests and, *526 pending federal review, all new voting regulations in covered jurisdictions, as well as the assignment of federal examiners to list qualified applicants enabling those listed to vote. The new, unprecedented remedies were deemed necessary given the ineffectiveness of the existing voting rights laws, see id., at 313-315, and the slow, costly character of case-by-case litigation, id., at 328.

After South Carolina v. Katzenbach , the Court continued to acknowledge the necessity of using strong remedial and preventive measures to respond to the widespread and persisting deprivation of constitutional rights resulting from this country's history of racial discrimination. See Oregon v. Mitchell, 400 U. S., at 132("In enacting the literacy test ban . . . Congress had before it a long history of the discriminatory use of literacy tests to disfranchise voters on account of their race") (opinion of Black, J.); id., at 147 (Literacy tests "have been used at times as a discriminatory weapon against some minorities, not only Negroes but Americans of Mexican ancestry, and American Indians") (opinion of Douglas, J.); id., at 216 ("Congress could have determined that racial prejudice is prevalent throughout the Nation, and that literacy tests unduly lend themselves to discriminatory application, either conscious or unconscious") (opinion of Harlan, J.); id., at 235 ("[T]here is no question but that Congress could legitimately have concluded that the use of literacy tests anywhere within the United States has the inevitable effect of denying the vote to members of racial minorities whose inability to pass such tests is the direct consequence of previous governmental discrimination in education") (opinion of Brennan, J.); id., at 284 ("[N]ationwide [suspension of literacy tests] may be reasonably thought appropriate when Congress acts against an evil such as racial discrimination which in varying degrees manifests itself in every part of the country") (opinion of Stewart, J.); City of Rome, 446 U. S., at 182 ("Congress' considered determination that at least another 7 years of statutory remedies were necessary to counter the *527 perpetuation of 95 years of pervasive voting discrimination is both unsurprising and unassailable"); Morgan, 384 U. S., at 656(Congress had a factual basis to conclude that New York's literacy requirement "constituted an invidious discrimination in violation of the Equal Protection Clause").

3

Any suggestion that Congress has a substantive, nonremedial power under the Fourteenth Amendment is not supported by our case law. In Oregon v. Mitchell, supra, at 112, a majority of the Court concluded Congress had exceeded its enforcement powers by enacting legislation lowering the minimum age of voters from 21 to 18 in state and local elections. The five Members of the Court who reached this conclusion explained that the legislation intruded into an area reserved by the Constitution to the States. See 400 U. S., at 125 (concluding that the legislation was unconstitutional because the Constitution "reserves to the States the power to set voter qualifications in state and local elections") (opinion of Black, J.); id., at 154 (explaining that the "Fourteenth Amendment was never intended to restrict the authority of the States to allocate their political power as they see fit") (opinion of Harlan, J.); id., at 294 (concluding that States, not Congress, have the power "to establish a qualification for voting based on age") (opinion of Stewart, J., joined by Burger, C. J., and Blackmun, J.). Four of these five were explicit in rejecting the position that § 5 endowed Congress with the power to establish the meaning of constitutional provisions. See id., at 209 (opinion of Harlan, J.); id., at 296 (opinion of Stewart, J.). Justice Black's rejection of this position might be inferred from his disagreement with Congress' interpretation of the Equal Protection Clause. See id., at 125.

There is language in our opinion in Katzenbach v. Morgan, 384 U. S. 641 (1966),which could be interpreted as acknowledging a power in Congress to enact legislation that expands *528 the rights contained in § 1 of the Fourteenth Amendment. This is not a necessary interpretation, however, or even the best one. In Morgan, the Court considered the constitutionality of § 4(e) of the Voting Rights Act of 1965, which provided that no person who had successfully completed the sixth primary grade in a public school in, or a private school accredited by, the Commonwealth of Puerto Rico in which the language of instruction was other than English could be denied the right to vote because of an inability to read or write English. New York's Constitution, on the other hand, required voters to be able to read and write English. The Court provided two related rationales for its conclusion that § 4(e) could "be viewed as a measure to secure for the Puerto Rican community residing in New York nondiscriminatory treatment by government." Id.,at 652. Under the first rationale, Congress could prohibit New York from denying the right to vote to large segments of its Puerto Rican community, in order to give Puerto Ricans "enhanced political power" that would be "helpful in gaining nondiscriminatory treatment in public services for the entire Puerto Rican community." Ibid. Section 4(e) thus could be justified as a remedial measure to deal with "discrimination in governmental services." Id., at 653. The second rationale, an alternative holding, did not address discrimination in the provision of public services but "discrimination in establishing voter qualifications." Id., at 654. The Court perceived a factual basis on which Congress could have concluded that New York's literacy requirement "constituted an invidious discrimination in violation of the Equal Protection Clause." Id., at 656. Both rationales for upholding § 4(e) rested on unconstitutional discrimination by New York and Congress' reasonable attempt to combat it. As Justice Stewart explained in Oregon v. Mitchell, supra, at 296, interpreting Morgan to give Congress the power to interpret the Constitution "would require an enormous extension of that decision's rationale."

*529 If Congress could define its own powers by altering the Fourteenth Amendment's meaning, no longer would the Constitution be "superior paramount law, unchangeable by ordinary means." It would be "on a level with ordinary legislative acts, and, like other acts, . . .alterable when the legislature shall please to alter it." Marbury v. Madison, 1 Cranch, at 177. Under this approach, it is difficult to conceive of a principle that would limit congressional power. See Van Alstyne, The Failure of the Religious Freedom Restoration Act under Section 5 of the Fourteenth Amendment, 46 Duke L. J. 291, 292-303 (1996). Shifting legislative majorities could change the Constitution and effectively circumvent the difficult and detailed amendment process contained in Article V.

We now turn to consider whether RFRA can be considered enforcement legislation under § 5 of the Fourteenth Amendment.

B

Respondent contends that RFRA is a proper exercise of Congress' remedial or preventive power. The Act, it is said, is a reasonable means of protecting the free exercise of religion as defined by Smith. It prevents and remedies laws which are enacted with the unconstitutional object of targeting religious beliefs and practices. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 533 (1993) ("[A] law targeting religious beliefs as such is never permissible"). To avoid the difficulty of proving such violations, it is said, Congress can simply invalidate any law which imposes a substantial burden on a religious practice unless it is justified by a compelling interest and is the least restrictive means of accomplishing that interest. If Congress can prohibit laws with discriminatory effects in order to prevent racial discrimination in violation of the Equal Protection Clause, see Fullilove v. Klutznick, 448 U. S. 448, 477 (1980) (plurality opinion); City of Rome , 446 U. S., at 177, then it can do the same, respondent argues, to promote religious liberty.

*530 While preventive rules are sometimes appropriate remedial measures, there must be a congruence between the means used and the ends to be achieved. The appropriateness of remedial measures must be considered in light of the evil presented. See South Carolina v. Katzenbach, 383 U. S., at 308. Strong measures appropriate to address one harm may be an unwarranted response to another, lesser one. Id., at 334.

A comparison between RFRA and the Voting Rights Act is instructive. In contrast to the record which confronted Congress and the Judiciary in the voting rights cases, RFRA's legislative record lacks examples of modern instances of generally applicable laws passed because of religious bigotry. The history of persecution in this country detailed in the hearings mentions no episodes occurring in the past 40 years. See, e. g., Religious Freedom Restoration Act of 1991, Hearings on H. R. 2797 before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 102d Cong., 2d Sess., 331-334 (1993) (statement of Douglas Laycock) (House Hearings); The Religious Freedom Restoration Act, Hearing on S. 2969 before the Senate Committee on the Judiciary, 102d Cong., 2d Sess., 30-31 (1993) (statement of Dallin H. Oaks) (Senate Hearing); id., at 68-76 (statement of Douglas Laycock); Religious Freedom Restoration Act of 1990, Hearing on H. R. 5377 before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 101st Cong., 2d Sess., 49 (1991) (statement of John H. Buchanan, Jr.) (1990 House Hearing). The absence of more recent episodes stems from the fact that, as one witness testified, "deliberate persecution is not the usual problem in this country." House Hearings 334 (statement of Douglas Laycock). See also House Report 2 ("[L]aws directly targeting religious practices have become increasingly rare"). Rather, the emphasis of the hearings was on laws of general applicability which place incidental burdens on religion. Much of the discussion centered *531 upon anecdotal evidence of autopsies performed on Jewish individuals and Hmong immigrants in violation of their religious beliefs, see, e. g., House Hearings 81 (statement of Nadine Strossen); id., at 107-110 (statement of William Yang); id., at 118 (statement of Rep. Stephen J. Solarz); id., at 336 (statement of Douglas Laycock); Senate Hearing 5-6, 14-26 (statement of William Yang); id., at 27-28 (statement of Hmong-Lao Unity Assn., Inc.); id., at 50 (statement of Baptist Joint Committee); see also Senate Report 8; House Report 5-6, and n. 14, and on zoning regulations and historic preservation laws (like the one at issue here), which, as an incident of their normal operation, have adverse effects on churches and synagogues. See, e. g., House Hearings 17, 57 (statement of Robert P. Dugan, Jr.); id., at 81 (statement of Nadine Strossen); id., at 122-123 (statement of Rep. Stephen J. Solarz); id., at 157 (statement of Edward M. Gaffney, Jr.); id., at 327 (statement of Douglas Laycock); Senate Hearing 143-144 (statement of Forest D. Montgomery); 1990 House Hearing 39 (statement of Robert P. Dugan, Jr.); see also Senate Report 8; House Report 5-6, and n. 14. It is difficult to maintain that they are examples of legislation enacted or enforced due to animus or hostility to the burdened religious practices or that they indicate some widespread pattern of religious discrimination in this country. Congress' concern was with the incidental burdens imposed, not the object or purpose of the legislation. See House Report 2; Senate Report 4-5; House Hearings 64 (statement of Nadine Strossen); id., at 117-118 (statement of Rep. Stephen J. Solarz); 1990 House Hearing 14 (statement of Rep. Stephen J. Solarz). This lack of support in the legislative record, however, is not RFRA's most serious shortcoming. Judicial deference, in most cases, is based not on the state of the legislative record Congress compiles but "on due regard for the decision of the body constitutionally appointed to decide." Oregon v. Mitchell, 400 U. S., at 207 (opinion of Harlan, J.). As a general *532 matter, it is for Congress to determine the method by which it will reach a decision.

Regardless of the state of the legislative record, RFRA cannot be considered remedial, preventive legislation, if those terms are to have any meaning. RFRA is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. It appears, instead, to attempt a substantive change in constitutional protections. Preventive measures prohibiting certain types of laws may be appropriate when there is reason to believe that many of the laws affected by the congressional enactment have a significant likelihood of being unconstitutional. See City of Rome, 446 U. S., at 177 (since "jurisdictions with a demonstrable history of intentional racial discrimination . . . create the risk of purposeful discrimination," Congress could "prohibit changes that have a discriminatory impact" in those jurisdictions). Remedial legislation under § 5 "should be adapted to the mischief and wrong which the [Fourteenth] [A]mendment was intended to provide against." Civil Rights Cases, 109 U. S., at 13.

RFRA is not so confined. Sweeping coverage ensures its intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter. RFRA's restrictions apply to every agency and official of the Federal, State, and local Governments. 42 U. S. C. § 2000bb—2(1). RFRA applies to all federal and state law, statutory or otherwise, whether adopted before or after its enactment. § 2000bb—3(a). RFRA has no termination date or termination mechanism. Any law is subject to challenge at any time by any individual who alleges a substantial burden on his or her free exercise of religion.

The reach and scope of RFRA distinguish it from other measures passed under Congress' enforcement power, even in the area of voting rights. In South Carolina v. Katzenbach, the challenged provisions were confined to those regions *533 of the country where voting discrimination had been most flagrant, see 383 U. S., at 315, and affected a discrete class of state laws, i. e., state voting laws. Furthermore, to ensure that the reach of the Voting Rights Act was limited to those cases in which constitutional violations were most likely (in order to reduce the possibility of overbreadth), the coverage under the Act would terminate "at the behest of States and political subdivisions in which the danger of substantial voting discrimination has not materialized during the preceding five years." Id., at 331. The provisions restricting and banning literacy tests, upheld in Katzenbach v. Morgan, 384 U. S. 641 (1966), and Oregon v. Mitchell, supra, attacked a particular type of voting qualification, one with a long history as a "notorious means to deny and abridge voting rights on racial grounds." South Carolina v. Katzenbach, 383 U. S., at 355 (Black, J., concurring and dissenting). In City of Rome, supra, the Court rejected a challenge to the constitutionality of a Voting Rights Act provision which required certain jurisdictions to submit changes in electoral practices to the Department of Justice for preimplementation review. The requirement was placed only on jurisdictions with a history of intentional racial discrimination in voting. Id.,at 177. Like the provisions at issue in South Carolina v. Katzenbach, this provision permitted a covered jurisdiction to avoid preclearance requirements under certain conditions and, moreover, lapsed in seven years. This is not to say, of course, that § 5 legislation requires termination dates, geographic restrictions, or egregious predicates. Where, however, a congressional enactment pervasively prohibits constitutional state action in an effort to remedy or to prevent unconstitutional state action, limitations of this kind tend to ensure Congress' means are proportionate to ends legitimate under § 5.

The stringent test RFRA demands of state laws reflects a lack of proportionality or congruence between the means adopted and the legitimate end to be achieved. If an objector can show a substantial burden on his free exercise, the *534 State must demonstrate a compelling governmental interest and show that the law is the least restrictive means of furthering its interest. Claims that a law substantially burdens someone's exercise of religion will often be difficult to contest. See Smith , 494 U. S., at 887 ("What principle of law or logic can be brought to bear to contradict a believer's assertion that a particular act is `central' to his personal faith?"); id., at 907 ("The distinction between questions of centrality and questions of sincerity and burden is admittedly fine . . .") (O'Connor, J., concurring in judgment). Requiring a State to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law. If "`compelling interest' really means what it says . . . , many laws will not meet the test. . . . [The test] would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind." Id., at 888. Laws valid under Smith would fall under RFRA without regard to whether they had the object of stifling or punishing free exercise. We make these observations not to reargue the position of the majority in Smith but to illustrate the substantive alteration of its holding attempted by RFRA. Even assuming RFRA would be interpreted in effect to mandate some lesser test, say, one equivalent to intermediate scrutiny, the statute nevertheless would require searching judicial scrutiny of state law with the attendant likelihood of invalidation. This is a considerable congressional intrusion into the States' traditional prerogatives and general authority to regulate for the health and welfare of their citizens.

The substantial costs RFRA exacts, both in practical terms of imposing a heavy litigation burden on the States and in terms of curtailing their traditional general regulatory power, far exceed any pattern or practice of unconstitutional conduct under the Free Exercise Clause as interpreted in Smith. Simply put, RFRA is not designed to identify and counteract state laws likely to be unconstitutional because of *535 their treatment of religion. In most cases, the state laws to which RFRA applies are not ones which will have been motivated by religious bigotry. If a state law disproportionately burdened a particular class of religious observers, this circumstance might be evidence of an impermissible legislative motive. Cf. Washington v. Davis, 426 U. S. 229, 241 (1976). RFRA's substantial-burden test, however, is not even a discriminatory-effects or disparate-impact test. It is a reality of the modern regulatory state that numerous state laws, such as the zoning regulations at issue here, impose a substantial burden on a large class of individuals. When the exercise of religion has been burdened in an incidental way by a law of general application, it does not follow that the persons affected have been burdened any more than other citizens, let alone burdened because of their religious beliefs. In addition, the Act imposes in every case a least restrictive means requirement—a requirement that was not used in the pre-Smith jurisprudence RFRA purported to codify—which also indicates that the legislation is broader than is appropriate if the goal is to prevent and remedy constitutional violations.

When Congress acts within its sphere of power and responsibilities, it has not just the right but the duty to make its own informed judgment on the meaning and force of the Constitution. This has been clear from the early days of the Republic. In 1789, when a Member of the House of Representatives objected to a debate on the constitutionality of legislation based on the theory that "it would be officious" to consider the constitutionality of a measure that did not affect the House, James Madison explained that "it is incontrovertibly of as much importance to this branch of the Government as to any other, that the constitution should be preserved entire. It is our duty." 1 Annals of Congress 500 (1789). Were it otherwise, we would not afford Congress the presumption of validity its enactments now enjoy.

Our national experience teaches that the Constitution is preserved best when each part of the Government respects *536 both the Constitution and the proper actions and determinations of the other branches. When the Court has interpreted the Constitution, it has acted within the province of the Judicial Branch, which embraces the duty to say what the law is. Marbury v. Madison, 1 Cranch, at 177. When the political branches of the Government act against the background of a judicial interpretation of the Constitution already issued, it must be understood that in later cases and controversies the Court will treat its precedents with the respect due them under settled principles, including stare decisis, and contrary expectations must be disappointed. RFRA was designed to control cases and controversies, such as the one before us; but as the provisions of the federal statute here invoked are beyond congressional authority, it is this Court's precedent, not RFRA, which must control.

* * *

It is for Congress in the first instance to "determin[e] whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment," and its conclusions are entitled to much deference. Katzenbach v. Morgan, 384 U. S., at 651. Congress' discretion is not unlimited, however, and the courts retain the power, as they have since Marbury v. Madison, to determine if Congress has exceeded its authority under the Constitution. Broad as the power of Congress is under the Enforcement Clause of the Fourteenth Amendment, RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance. The judgment of the Court of Appeals sustaining the Act's constitutionality is reversed.

It is so ordered.

†

 Justice Scalia joins all but Part III—A-1 of this opinion.

Justice Stevens, concurring.

In my opinion, the Religious Freedom Restoration Act of 1993 (RFRA) is a "law respecting an establishment of religion" that violates the First Amendment to the Constitution.

*537 If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an enlargement of the structure. Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law. Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment. Wallace v. Jaffree, 472 U. S. 38, 52-55 (1985).

Justice Scalia, with whom Justice Stevens joins, concurring in part.

I write to respond briefly to the claim of Justice O'Connor's dissent (hereinafter the dissent) that historical materials support a result contrary to the one reached in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990). See post, p. 544 (dissenting opinion). We held in Smith that the Constitution's Free Exercise Clause "does not relieve an individual of the obligation to comply with a `valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).' " 494 U. S., at 879 (quoting United States v. Lee, 455 U. S. 252, 263, n. 3 (1982) (Stevens, J., concurring in judgment)). The material that the dissent claims is at odds with Smith either has little to say about the issue or is in fact more consistent with Smith than with the dissent's interpretation of the Free Exercise Clause. The dissent's extravagant claim that the historical record shows Smith to have been wrong should be compared with the assessment of the most prominent scholarly critic of Smith, who, after an extensive review of the historical record, was willing to venture no more than that "constitutionally *538 compelled exemptions [from generally applicable laws regulating conduct] were within the contemplation of the framers and ratifiers as a possible interpretation of the free exercise clause." McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1415 (1990) (emphasis added); see also Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. Law Rev. 915 (1992) (arguing that historical evidence supports Smith `s interpretation of free exercise).

The dissent first claims that Smith `s interpretation of the Free Exercise Clause departs from the understanding reflected in various statutory and constitutional protections of religion enacted by Colonies, States, and Territories in the period leading up to the ratification of the Bill of Rights. Post, at 550-557. But the protections afforded by those enactments are in fact more consistent with Smith `s interpretation of free exercise than with the dissent's understanding of it. The Free Exercise Clause, the dissent claims, "is best understood as an affirmative guarantee of the right to participate in religious practices and conduct without impermissible governmental interference, even when such conduct conflicts with a neutral, generally applicable law"; thus, even neutral laws of general application may be invalid if they burden religiously motivated conduct. Post, at 546. However, the early "free exercise" enactments cited by the dissent protect only against action that is taken "for" or "in respect of" religion, post, at 551-553 (Maryland Act Concerning Religion of 1649, Rhode Island Charter of 1663, and New Hampshire Constitution); or action taken "on account of" religion, post, at 553-554 (Maryland Declaration of Rights of 1776 and Northwest Ordinance of 1787); or "discriminat[ory]" action, post, at 553 (New York Constitution); or, finally (and unhelpfully for purposes of interpreting "free exercise" in the Federal Constitution), action that interferes with the "free exercise" of religion, post, at 551, 554 (Maryland Act *539 Concerning Religion of 1649 and Georgia Constitution). It is eminently arguable that application of neutral, generally applicable laws of the sort the dissent refers to—such as zoning laws, post, at 547—would not constitute action taken "for," "in respect of," or "on account of" one's religion, or "discriminatory" action.

Assuming, however, that the affirmative protection of religion accorded by the early "free exercise" enactments sweeps as broadly as the dissent's theory would require, those enactments do not support the dissent's view, since they contain "provisos" that significantly qualify the affirmative protection they grant. According to the dissent, the "provisos" support its view because they would have been "superfluous" if "the Court was correct in Smith that generally applicable laws are enforceable regardless of religious conscience." Post, at 554-555. I disagree. In fact, the most plausible reading of the "free exercise" enactments (if their affirmative provisions are read broadly, as the dissent's view requires) is a virtual restatement of Smith: Religious exercise shall be permitted so long as it does not violate general laws governing conduct. The "provisos" in the enactments negate a license to act in a manner "unfaithfull to the Lord Proprietary" (Maryland Act Concerning Religion of 1649), or "behav[e]" in other than a "peaceabl[e] and quie[t]" manner (Rhode Island Charter of 1663), or "disturb the public peace" (New Hampshire Constitution), or interfere with the "peace [and] safety of th[e] State" (New York, Maryland, and Georgia Constitutions), or "demea[n]" oneself in other than a "peaceable and orderly manner" (Northwest Ordinance of 1787). See post,at 551-554. At the time these provisos were enacted, keeping "peace" and "order" seems to have meant, precisely, obeying the laws. "[E]very breach of a law is against the peace." Queen v. Lane, 6 Mod. 128, 87 Eng. Rep. 884, 885 (Q. B. 1704). Even as late as 1828, when Noah Webster published his American Dictionary of the English Language, he gave as one of the meanings of "peace": "8. Public *540 tranquility; that quiet, order and security which is guaranteed by the laws; as, to keep the peace; to break the peace. " 2 An American Dictionary of the English Language 31 (1828).1 This limitation upon the scope of religious exercise would have been in accord with the background political philosophy of the age (associated most prominently with John Locke), which regarded freedom as the right "to do only what was not lawfully prohibited," West, The Case Against a Right to Religion-Based Exemptions, 4 Notre Dame J. L., Ethics & Pub. Pol'y 591, 624 (1990). "Thus, the disturb-the-peace caveats apparently permitted government to deny religious freedom, not merely in the event of violence or force, but, more generally, upon the occurrence of illegal actions." Hamburger, supra, at 918-919.2And while, under this interpretation, these early "free exercise" enactments support the Court's judgment in Smith, I see no sensible interpretation that could cause them to support what I understand to be the position of Justice O'Connor, or any of Smith `s other critics. No one in that camp, to my knowledge, contends that their favored "compelling state interest" test conforms to any possible interpretation of "breach of peace and order"—i. e., that only violence or force, or any other category of action (more limited than "violation of law") which can possibly be conveyed by the phrase "peace and order," justifies state prohibition of religiously motivated conduct.

*541 Apart from the early "free exercise" enactments of Colonies, States, and Territories, the dissent calls attention to those bodies', and the Continental Congress's, legislative accommodation of religious practices prior to ratification of the Bill of Rights. Post, at 557-560. This accommodation—which took place both before and after enactment of the state constitutional protections of religious liberty—suggests (according to the dissent) that "the drafters and ratifiers of the First Amendment . . . assumed courts would apply the Free Exercise Clause similarly." Post, at 560. But that legislatures sometimes (though not always)3 found it "appropriate," post, at 559, to accommodate religious practices does not establish that accommodation was understood to be constitutionally mandated by the Free Exercise Clause. As we explained in Smith, "to say that a nondiscriminatory religious-practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required." 494 U. S., at 890. "Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process." Ibid.

The dissent's final source of claimed historical support consists of statements of certain of the Framers in the context of debates about proposed legislative enactments or debates over general principles (not in connection with the drafting of State or Federal Constitutions). Those statements are subject to the same objection as was the evidence about legislative accommodation: There is no reason to think they were meant to describe what was constitutionally required (and judicially enforceable), as opposed to what was thought to be legislatively or even morally desirable. Thus, for example, the pamphlet written by James Madison opposing Virginia's proposed general assessment for support of religion, *542 post, at 560-561, does not argue that the assessment would violate the "free exercise" provision in the Virginia Declaration of Rights, although that provision had been enacted into law only eight years earlier, post, at 556; rather the pamphlet argues that the assessment wrongly placed civil society ahead of personal religious belief and, thus, should not be approved by the legislators, post,at 560-561. Likewise, the letter from George Washington to the Quakers, post, at 562, by its own terms refers to Washington's "wish and desire" that religion be accommodated, not his belief that existing constitutional provisions required accommodation. These and other examples offered by the dissent reflect the speakers' views of the "proper" relationship between government and religion, post, at 563, but not their views (at least insofar as the content or context of the material suggests) of the constitutionally required relationship. The one exception is the statement by Thomas Jefferson that he considered "the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises," post, at 562 (internal quotation marks omitted); but it is quite clear that Jefferson did not in fact espouse the broad principle of affirmative accommodation advocated by the dissent, see McConnell, 103 Harv. L. Rev., at 1449-1452.

It seems to me that the most telling point made by the dissent is to be found, not in what it says, but in what it fails to say. Had the understanding in the period surrounding the ratification of the Bill of Rights been that the various forms of accommodation discussed by the dissent were constitutionally required (either by State Constitutions or by the Federal Constitution), it would be surprising not to find a single state or federal case refusing to enforce a generally applicable statute because of its failure to make accommodation. Yet the dissent cites none—and to my knowledge, and to the knowledge of the academic defenders of the dissent's position, see, e. g., id., at 1504, 1506-1511 (discussing early *543 cases), none exists. The closest one can come in the period prior to 1850 is the decision of a New York City municipal court in 1813, holding that the New York Constitution of 1777, quoted post, at 553, required acknowledgment of a priest-penitent privilege, to protect a Catholic priest from being compelled to testify as to the contents of a confession. People v. Phillips, Court of General Sessions, City of New York (June 14, 1813), excerpted in Privileged Communications to Clergymen, 1 Cath. Law. 199 (1955). Even this lone case is weak authority, not only because it comes from a minor court,4 but also because it did not involve a statute, and the same result might possibly have been achieved (without invoking constitutional entitlement) by the court's simply modifying the common-law rules of evidence to recognize such a privilege. On the other side of the ledger, moreover, there are two cases, from the Supreme Court of Pennsylvania, flatly rejecting the dissent's view. In Simon's Executors v. Gratz, 2 Pen. & W. 412 (Pa. 1831), the court held that a litigant was not entitled to a continuance of trial on the ground that appearing on his Sabbath would violate his religious principles. And in Stansbury v. Marks, 2 Dall. 213 (Pa. 1793), decided just two years after the ratification of the Bill of Rights, the court imposed a fine on a witness who "refused to be sworn, because it was his Sabbath."5

I have limited this response to the new items of "historical evidence" brought forward by today's dissent. (The dissent's *544 claim that "[b]efore Smith, our free exercise cases were generally in keeping" with the dissent's view, post, at 546, is adequately answered in Smith itself.) The historical evidence marshalled by the dissent cannot fairly be said to demonstrate the correctness of Smith; but it is more supportive of that conclusion than destructive of it. And, to return to a point I made earlier, that evidence is not compatible with any theory I am familiar with that has been proposed as an alternative to Smith. The dissent's approach has, of course, great popular attraction. Who can possibly be against the abstract proposition that government should not, even in its general, nondiscriminatory laws, place unreasonable burdens upon religious practice? Unfortunately, however, that abstract proposition must ultimately be reduced to concrete cases. The issue presented by Smith is, quite simply, whether the people, through their elected representatives, or rather this Court, shall control the outcome of those concrete cases. For example, shall it be the determination of this Court, or rather of the people, whether (as the dissent apparently believes, post , at 547) church construction will be exempt from zoning laws? The historical evidence put forward by the dissent does nothing to undermine the conclusion we reached in Smith: It shall be the people.

1

 The word "licentious," used in several of the early enactments, likewise meant "[e]xceeding the limits of law." 2 An American Dictionary of the English Language 6 (1828).

2

 The same explanation applies, of course, to George Mason's initial draft of Virginia's religious liberty clause, see post, at 555. When it said "unless, under colour of religion, any man disturb the peace . . . of society," it probably meant "unless under color of religion any man break the law." Thus, it is not the case that "both Mason's and [James] Madison's formulations envisioned that, when there was a conflict [between religious exercise and generally applicable laws], a person's interest in freely practicing his religion was to be balanced against state interests," post, at 556—at least insofar as regulation of conduct was concerned.

3

 The dissent mentions, for example, that only 7 of the 13 Colonies had exempted Quakers from military service by the mid-1700's; and that "virtually all" of the States had enacted oath exemptions by 1789. Post, at 558 (emphasis added).

 The Court of General Sessions was a mayor's court, and the ruling in Phillips was made by DeWitt Clinton, the last mayor to preside over that court, which was subsequently reconstituted as the Court of Common Pleas. Clinton had never been a jurist, and indeed had never practiced law. Some years before Phillips, he was instrumental in removing the political disabilities of Catholics in New York. See 4 Dictionary of American Biography 221-222, 224 (1943).

5

 Indeed, the author of Simon's Executors could well have written Smith: "[C]onsiderations of policy address themselves with propriety to the legislature, and not to a magistrate whose course is prescribed not by discretion, but rules already established." 2 Pen. & W., at 417.

Justice O'Connor, with whom Justice Breyer joins except as to the first paragraph of Part I, dissenting.

I dissent from the Court's disposition of this case. I agree with the Court that the issue before us is whether the Religious Freedom Restoration Act of 1993 (RFRA) is a proper exercise of Congress' power to enforce § 5 of the Fourteenth Amendment. But as a yardstick for measuring the constitutionality of RFRA, the Court uses its holding in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), the decision that prompted Congress to enact RFRA as a means of more rigorously enforcing the Free Exercise Clause. I remain of the view that Smith was *545 wrongly decided, and I would use this case to reexamine the Court's holding there. Therefore, I would direct the parties to brief the question whether Smith represents the correct understanding of the Free Exercise Clause and set the case for reargument. If the Court were to correct the misinterpretation of the Free Exercise Clause set forth in Smith, it would simultaneously put our First Amendment jurisprudence back on course and allay the legitimate concerns of a majority in Congress who believed that Smith improperly restricted religious liberty. We would then be in a position to review RFRA in light of a proper interpretation of the Free Exercise Clause.

I

I agree with much of the reasoning set forth in Part III—A of the Court's opinion. Indeed, if I agreed with the Court's standard in Smith, I would join the opinion. As the Court's careful and thorough historical analysis shows, Congress lacks the "power to decree the substance of the Fourteenth Amendment's restrictions on the States." Ante, at 519 (emphasis added). Rather, its power under § 5 of the Fourteenth Amendment extends only to enforcing the Amendment's provisions. In short, Congress lacks the ability independently to define or expand the scope of constitutional rights by statute. Accordingly, whether Congress has exceeded its § 5 powers turns on whether there is a "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Ante, at 520. This recognition does not, of course, in any way diminish Congress' obligation to draw its own conclusions regarding the Constitution's meaning. Congress, no less than this Court, is called upon to consider the requirements of the Constitution and to act in accordance with its dictates. But when it enacts legislation in furtherance of its delegated powers, Congress must make its judgments consistent with this Court's exposition of the Constitution and with the limits *546 placed on its legislative authority by provisions such as the Fourteenth Amendment.

The Court's analysis of whether RFRA is a constitutional exercise of Congress' § 5 power, set forth in Part III—B of its opinion, is premised on the assumption that Smith correctly interprets the Free Exercise Clause. This is an assumption that I do not accept. I continue to believe that Smith adopted an improper standard for deciding free exercise claims. In Smith, five Members of this Court—without briefing or argument on the issue—interpreted the Free Exercise Clause to permit the government to prohibit, without justification, conduct mandated by an individual's religious beliefs, so long as the prohibition is generally applicable. Contrary to the Court's holding in that case, however, the Free Exercise Clause is not simply an antidiscrimination principle that protects only against those laws that single out religious practice for unfavorable treatment. See Smith, supra, at 892-903 (O'Connor, J., concurring in judgment). Rather, the Clause is best understood as an affirmative guarantee of the right to participate in religious practices and conduct without impermissible governmental interference, even when such conduct conflicts with a neutral, generally applicable law. Before Smith, our free exercise cases were generally in keeping with this idea: where a law substantially burdened religiously motivated conduct— regardless whether it was specifically targeted at religion or applied generally—we required government to justify that law with a compelling state interest and to use means narrowly tailored to achieve that interest. See 494 U. S., at 894 (citing Hernandez v. Commissioner, 490 U. S. 680, 699 (1989); Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136, 141 (1987); United States v. Lee, 455 U. S. 252, 257-258 (1982); McDaniel v. Paty,435 U. S. 618, 626-629 (1978); Wisconsin v. Yoder, 406 U. S. 205, 215 (1972); Gillette v. United States, 401 U. S. 437, 462 (1971); Sherbert v. Verner, 374 U. S. 398, 403 (1963)).

*547 The Court's rejection of this principle in Smith is supported neither by precedent nor, as discussed below, by history. The decision has harmed religious liberty. For example, a Federal District Court, in reliance on Smith, ruled that the Free Exercise Clause was not implicated where Hmong natives objected on religious grounds to their son's autopsy, conducted pursuant to a generally applicable state law. Yang v. Sturner, 750 F. Supp. 558, 559 (RI 1990). The Court of Appeals for the Eighth Circuit held that application of a city's zoning laws to prevent a church from conducting services in an area zoned for commercial uses raised no free exercise concerns, even though the city permitted secular not-for-profit organizations in that area. Cornerstone Bible Church v. Hastings, 948 F. 2d 464 (1991); see also Rector of St. Bartholomew's Church v. New York, 914 F. 2d 348, 355 (CA2 1990) (no free exercise claim where city's application of facially neutral landmark designation law "drastically restricted the Church's ability to raise revenue to carry out its various charitable and ministerial programs"), cert. denied, 499 U. S. 905 (1991); State v. Hershberger, 462 N. W. 2d 393 (Minn. 1990) (Free Exercise Clause provided no basis for exempting an Amish farmer from displaying a bright orange triangle on his buggy, to which the farmer objected on religious grounds, even though the evidence showed that some other material would have served the State's purpose equally well). These cases demonstrate that lower courts applying Smith no longer find necessary a searching judicial inquiry into the possibility of reasonably accommodating religious practice.

Stare decisis concerns should not prevent us from revisiting our holding in Smith."`[S]tare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience.' " Adarand Constructors, Inc. v. Peña, 515 U. S. *548 200, 231 (1995) (quoting Helvering v. Hallock, 309 U. S. 106, 119 (1940)). This principle is particularly true in constitutional cases, where—as this case so plainly illustrates—"correction through legislative action is practically impossible." Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 63 (1996) (internal quotation marks and citation omitted). I believe that, in light of both our precedent and our Nation's tradition of religious liberty, Smith is demonstrably wrong. Moreover, it is a recent decision. As such, it has not engendered the kind of reliance on its continued application that would militate against overruling it. Cf. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 855-856 (1992).

Accordingly, I believe that we should reexamine our holding in Smith, and do so in this very case. In its place, I would return to a rule that requires government to justify any substantial burden on religiously motivated conduct by a compelling state interest and to impose that burden only by means narrowly tailored to achieve that interest.

II

I shall not restate what has been said in other opinions, which have demonstrated that Smith is gravely at odds with our earlier free exercise precedents. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 570-571 (1993) (Souter, J., concurring in part and concurring in judgment) (stating that it is "difficult to escape the conclusion that, whatever Smith `s virtues, they do not include a comfortable fit with settled law"); Smith , 494 U. S., at 894-901 (O'Connor, J., concurring in judgment); see also McConnell, Free Exercise Revisionism and the SmithDecision, 57 U. Chi. L. Rev. 1109, 1120-1127 (1990). Rather, I examine here the early American tradition of religious free exercise to gain insight into the original understanding of the Free Exercise Clause—an inquiry the Court in Smith did not undertake. We have previously recognized the importance of interpreting the Religion Clauses in light of their history. Lynch v. Donnelly, 465 U. S. 668, 673 (1984) ("The Court's *549 interpretation of the Establishment Clause has comported with what history reveals was the contemporaneous understanding of its guarantees"); School Dist. of Abington Township v. Schempp, 374 U. S. 203, 212-214 (1963).

The historical evidence casts doubt on the Court's current interpretation of the Free Exercise Clause. The record instead reveals that its drafters and ratifiers more likely viewed the Free Exercise Clause as a guarantee that government may not unnecessarily hinder believers from freely practicing their religion, a position consistent with our preSmith jurisprudence.

A

The original Constitution, drafted in 1787 and ratified by the States in 1788, had no provisions safeguarding individual liberties, such as freedom of speech or religion. Federalists, the chief supporters of the new Constitution, took the view that amending the Constitution to explicitly protect individual freedoms was superfluous, since the rights that the amendments would protect were already completely secure. See, e. g., 1 Annals of Congress 440, 443-444, 448-459 (Gales and Seaton ed. 1834) (remarks of James Madison, June 8, 1789). Moreover, they feared that guaranteeing certain civil liberties might backfire, since the express mention of some freedoms might imply that others were not protected. According to Alexander Hamilton, a Bill of Rights would even be dangerous, in that by specifying "various exceptions to powers" not granted, it "would afford a colorable pretext to claim more than were granted." The Federalist No. 84, p. 513 (C. Rossiter ed. 1961). Anti-Federalists, however, insisted on more definite guarantees. Apprehensive that the newly established Federal Government would overwhelm the rights of States and individuals, they wanted explicit assurances that the Federal Government had no power in matters of personal liberty. T. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment 194 (1986). Additionally, Baptists and other Protestant dissenters feared for their religious liberty under *550 the new Federal Government and called for an amendment guaranteeing religious freedom. Id., at 198.

In the end, legislators acceded to these demands. By December 1791, the Bill of Rights had been added to the Constitution. With respect to religious liberty, the First Amendment provided: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U. S. Const., Amdt. 1. Neither the First Congress nor the ratifying state legislatures debated the question of religious freedom in much detail, nor did they directly consider the scope of the First Amendment's free exercise protection. It would be disingenuous to say that the Framers neglected to define precisely the scope of the Free Exercise Clause because the words "free exercise" had a precise meaning. L. Levy, Essays on American Constitutional History 173 (1972). As is the case for a number of the terms used in the Bill of Rights, it is not exactly clear what the Framers thought the phrase signified. Ibid. ("[I]t is astonishing to discover that the debate on a Bill of Rights was conducted on a level of abstraction so vague as to convey the impression that Americans of 1787-1788 had only the most nebulous conception of the meanings of the particular rights they sought to insure"). But a variety of sources supplement the legislative history and shed light on the original understanding of the Free Exercise Clause. These materials suggest that—contrary to Smith —the Framers did not intend simply to prevent the government from adopting laws that discriminated against religion. Although the Framers may not have asked precisely the questions about religious liberty that we do today, the historical record indicates that they believed that the Constitution affirmatively protects religious free exercise and that it limits the government's ability to intrude on religious practice.

B

The principle of religious "free exercise" and the notion that religious liberty deserved legal protection were by no *551 means new concepts in 1791, when the Bill of Rights was ratified. To the contrary, these principles were first articulated in this country in the Colonies of Maryland, Rhode Island, Pennsylvania, Delaware, and Carolina, in the mid1600's. These Colonies, though established as sanctuaries for particular groups of religious dissenters, extended freedom of religion to groups—although often limited to Christian groups—beyond their own. Thus, they encountered early on the conflicts that may arise in a society made up of a plurality of faiths.

The term "free exercise" appeared in an American legal document as early as 1648, when Lord Baltimore extracted from the new Protestant Governor of Maryland and his councilors a promise not to disturb Christians, particularly Roman Catholics, in the "free exercise" of their religion. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1425 (1990) (hereinafter Origins of Free Exercise). Soon after, in 1649, the Maryland Assembly enacted the first free exercise clause by passing the Act Concerning Religion: "[N]oe person . . . professing to beleive in Jesus Christ, shall from henceforth bee any waies troubled, Molested or discountenanced for or in respect of his or her religion nor in the free exercise thereof . . . nor any way [be] compelled to the beleife or exercise of any other Religion against his or her consent, soe as they be not unfaithfull to the Lord Proprietary, or molest or conspire against the civill Government." Act Concerning Religion of 1649, reprinted in 5 The Founders' Constitution 49, 50 (P. Kurland & R. Lerner eds. 1987) (hereinafter Founders' Constitution). Rhode Island's Charter of 1663 used the analogous term "liberty of conscience." It protected residents from being in any ways "molested, punished, disquieted, or called in question, for any differences in opinione, in matters of religion, and doe not actually disturb the civil peace of our sayd colony." The Charter further provided that residents may "freely, and fully have and enjoy his and their own judgments, and conscience in matters of religious *552 concernments . . . ; they behaving themselves peaceably and quietly and not using this liberty to licentiousness and profaneness; nor to the civil injury, or outward disturbance of others." Charter of Rhode Island and Providence Plantations, 1663, in 8 W. Swindler, Sources and Documents of United States Constitutions 363 (1979) (hereinafter Swindler). Various agreements between prospective settlers and the proprietors of Carolina, New York, and New Jersey similarly guaranteed religious freedom, using language that paralleled that of the Rhode Island Charter of 1663. See New York Act Declaring Rights & Priviledges (1691); Concession and Agreement of the Lords Proprietors of the Province of New Caesarea, or New-Jersey (1664); Laws of West NewJersey, Art. X (1681); Fundamental Constitutions for East New-Jersey, Art. XVI (1683); First Charter of Carolina, Art. XVIII (1663). N. Cogan, The Complete Bill of Rights 23-27 (Galley 1997).

These documents suggest that, early in our country's history, several Colonies acknowledged that freedom to pursue one's chosen religious beliefs was an essential liberty. Moreover, these Colonies appeared to recognize that government should interfere in religious matters only when necessary to protect the civil peace or to prevent "licentiousness." In other words, when religious beliefs conflicted with civil law, religion prevailed unless important state interests militated otherwise. Such notions parallel the ideas expressed in our pre-Smith cases—that government may not hinder believers from freely exercising their religion, unless necessary to further a significant state interest.

C

The principles expounded in these early charters reemerged over a century later in state constitutions that were adopted in the flurry of constitution drafting that followed the American Revolution. By 1789, every State but Connecticut had incorporated some version of a free exercise *553 clause into its constitution. Origins of Free Exercise 1455. These state provisions, which were typically longer and more detailed than the Federal Free Exercise Clause, are perhaps the best evidence of the original understanding of the Constitution's protection of religious liberty. After all, it is reasonable to think that the States that ratified the First Amendment assumed that the meaning of the federal free exercise provision corresponded to that of their existing state clauses. The precise language of these state precursors to the Free Exercise Clause varied, but most guaranteed free exercise of religion or liberty of conscience, limited by particular, defined state interests. For example, the New York Constitution of 1777 provided:

"[T]he free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed, within this State, to all mankind: Provided, That the liberty of conscience, hereby granted, shall not be so construed as to excuseacts of licentiousness, or justify practices inconsistent with the peace or safety of this State. " N. Y. Const., Art. XXXVIII, in 7 Swindler 178 (emphasis added).

Similarly, the New Hampshire Constitution of 1784 declared:

"Every individual has a natural and unalienable right to worship GOD according to the dictates of his own conscience, and reason; and no subject shall be hurt, molested, or restrained in his person, liberty or estate for worshipping GOD, in the manner and season most agreeable to the dictates of his own conscience, . . . provided he doth not disturb the public peace, or disturb others, in their religious worship." N. H. Const., Art. I, § 5, in 6 Swindler 345 (emphasis added).

The Maryland Declaration of Rights of 1776 read:

"[N]o person ought by any law to be molested in his person or estate on account of his religious persuasion *554 or profession, or for his religious practice; unless, under colour of religion, any man shall disturb the good order, peace or safety of the State, or shall infringe the laws of morality, or injure others, in their natural, civil, or religious rights." Md. Const., Declaration of Rights, Art. XXXIII in 4 Swindler 374 (emphasis added).

The religious liberty clause of the Georgia Constitution of 1777 stated:

"All persons whatever shall have the free exercise of their religion; provided it be not repugnant to the peace and safety of the State. " Ga. Const., Art. LVI, in 2 Swindler 449 (emphasis added).

In addition to these state provisions, the Northwest Ordinance of 1787—which was enacted contemporaneously with the drafting of the Constitution and reenacted by the First Congress—established a bill of rights for a territory that included what is now Ohio, Indiana, Michigan, Wisconsin, and part of Minnesota. Article I of the Ordinance declared:

"No person, demeaning himself in a peaceable and or- derly manner,shall ever be molested on account of his mode of worship or religious sentiments, in the said territory." Northwest Territory Ordinance of 1787, Art. I, 1 Stat. 52 (emphasis added).

The language used in these state constitutional provisions and the Northwest Ordinance strongly suggests that, around the time of the drafting of the Bill of Rights, it was generally accepted that the right to "free exercise" required, where possible, accommodation of religious practice. If not—and if the Court was correct in Smith that generally applicable laws are enforceable regardless of religious conscience— there would have been no need for these documents to specify, as the New York Constitution did, that rights of conscience should not be "construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of [the] State." Such a proviso would have been superfluous. *555Instead, these documents make sense only if the right to free exercise was viewed as generally superior to ordinary legislation, to be overridden only when necessary to secure important government purposes.

The Virginia Legislature may have debated the issue most fully. In May 1776, the Virginia Constitutional Convention wrote a constitution containing a Declaration of Rights with a clause on religious liberty. The initial drafter of the clause, George Mason, proposed the following:

"That religion, or the duty which we owe to our CREATOR, and the manner of discharging it, can be (directed) only by reason and conviction, not by force or violence; and therefore, that all men should enjoy the fullest toleration in the exercise of religion, according to the dictates of conscience, unpunished and unrestrained by the magistrate, unless, under colour of religion, any man disturb the peace, the happiness, or safety of society. And that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other." Committee Draft of the Virginia Declaration of Rights, 1 Papers of George Mason 284— 285 (R. Rutland ed. 1970) (emphasis added).

Mason's proposal did not go far enough for a 26-year-old James Madison, who had recently completed his studies at the Presbyterian College of Princeton. He objected first to Mason's use of the term "toleration," contending that the word implied that the right to practice one's religion was a governmental favor, rather than an inalienable liberty. Second, Madison thought Mason's proposal countenanced too much state interference in religious matters, since the "exercise of religion" would have yielded whenever it was deemed inimical to "the peace, happiness, or safety of society." Madison suggested the provision read instead:

"`That religion, or the duty we owe our Creator, and the manner of discharging it, being under the direction *556 of reason and conviction only, not of violence or compulsion, all men are equally entitled to the full and free exercise of it, according to the dictates of conscience; and therefore that no man or class of men ought on account of religion to be invested with peculiar emoluments or privileges, nor subjected to any penalties or disabilities, unless under color of religion the preserva- tion of equal liberty, and the existence of the State bemanifestly endangered.' " G. Hunt, James Madison and Religious Liberty, in 1 Annual Report of the American Historical Association, H. R. Doc. No. 702, 57th Cong., 1st Sess., 163, 166-167 (1901) (emphasis added).

Thus, Madison wished to shift Mason's language of "toleration" to the language of rights. See S. Cobb, The Rise of Religious Liberty in America 492 (1902) (reprint 1970) (noting that Madison objected to the word "toleration" as belonging to "a system where was an established Church, and where a certain liberty of worship was granted, not of right, but of grace"). Additionally, under Madison's proposal, the State could interfere in a believer's religious exercise only if the State would otherwise "be manifestly endangered." In the end, neither Mason's nor Madison's language regarding the extent to which state interests could limit religious exercise made it into the Virginia Constitution's religious liberty clause. Like the Federal Free Exercise Clause, the Virginia religious liberty clause was simply silent on the subject, providing only that "all men are equally entitled to the free exercise of religion, according to the dictates of conscience." Virginia Declaration of Rights, Art. XVI (1776), in 10 Swindler 50. For our purposes, however, it is telling that bothMason's and Madison's formulations envisioned that, when there was a conflict, a person's interest in freely practicing his religion was to be balanced against state interests. Although Madison endorsed a more limited state interest exception than did Mason, the debate would have been irrelevant if either had thought the right to free exercise did not *557 include a right to be exempt from certain generally applicable laws. Presumably, the Virginia Legislature intended the scope of its free exercise provision to strike some middle ground between Mason's narrower and Madison's broader notions of the right to religious freedom.

D

The practice of the Colonies and early States bears out the conclusion that, at the time the Bill of Rights was ratified, it was accepted that government should, when possible, accommodate religious practice. Unsurprisingly, of course, even in the American Colonies inhabited by people of religious persuasions, religious conscience and civil law rarely conflicted. Most 17th and 18th century Americans belonged to denominations of Protestant Christianity whose religious practices were generally harmonious with colonial law. Curry, The First Freedoms, at 219 ("The vast majority of Americans assumed that theirs was a Christian, i. e. Protestant, country, and they automatically expected that government would uphold the commonly agreed on Protestant ethos and morality"). Moreover, governments then were far smaller and less intrusive than they are today, which made conflict between civil law and religion unusual.

Nevertheless, tension between religious conscience and generally applicable laws, though rare, was not unknown in preconstitutional America. Most commonly, such conflicts arose from oath requirements, military conscription, and religious assessments. Origins of Free Exercise 1466. The ways in which these conflicts were resolved suggest that Americans in the Colonies and early States thought that, if an individual's religious scruples prevented him from complying with a generally applicable law, the government should, if possible, excuse the person from the law's coverage. For example, Quakers and certain other Protestant sects refused on Biblical grounds to subscribe to oaths or "swear" allegiance to civil authority. A. Adams & C. Emmerich, *558 A Nation Dedicated to Religious Liberty: The Constitutional Heritage of the Religion Clauses 14 (1990) (hereinafter Adams & Emmerich). Without accommodation, their beliefs would have prevented them from participating in civic activities involving oaths, including testifying in court. Colonial governments created alternatives to the oath requirement for these individuals. In early decisions, for example, the Carolina proprietors applied the religious liberty provision of the Carolina Charter of 1665 to permit Quakers to enter pledges in a book. Curry, The First Freedoms, at 56. Similarly, in 1691, New York enacted a law allowing Quakers to testify by affirmation, and in 1734, it permitted Quakers to qualify to vote by affirmation. Id., at 64. By 1789, virtually all of the States had enacted oath exemptions. See Adams & Emmerich 62.

Early conflicts between religious beliefs and generally applicable laws also occurred because of military conscription requirements. Quakers and Mennonites, as well as a few smaller denominations, refused on religious grounds to carry arms. Members of these denominations asserted that liberty of conscience should exempt them from military conscription. Obviously, excusing such objectors from military service had a high public cost, given the importance of the military to the defense of society. Nevertheless, Rhode Island, North Carolina, and Maryland exempted Quakers from military service in the late 1600's. New York, Massachusetts, Virginia, and New Hampshire followed suit in the mid-1700's. Origins of Free Exercise 1468. The Continental Congress likewise granted exemption from conscription:

"As there are some people, who, from religious principles, cannot bear arms in any case, this Congress intend no violence to their consciences, but earnestly recommend it to them, to contribute liberally in this time of universal calamity, to the relief of their distressed brethren in the several colonies, and to do all other services to their oppressed Country, which they can consistently *559 with their religious principles." Resolution of July 18, 1775, reprinted in 2 Journals of the Continental Congress, 1774-1789, pp. 187, 189 (W. Ford ed. 1905).

Again, this practice of excusing religious pacifists from military service demonstrates that, long before the First Amendment was ratified, legislative accommodations were a common response to conflicts between religious practice and civil obligation. Notably, the Continental Congress exempted objectors from conscription to avoid "violence to their consciences," explicitly recognizing that civil laws must sometimes give way to freedom of conscience. Origins of Free Exercise 1468.

States and Colonies with established churches encountered a further religious accommodation problem. Typically, these governments required citizens to pay tithes to support either the government-established church or the church to which the tithepayer belonged. But Baptists and Quakers, as well as others, opposed all government compelled tithes on religious grounds. Id., at 1469. Massachusetts, Connecticut, New Hampshire, and Virginia responded by exempting such objectors from religious assessments. Ibid. There are additional examples of early conflicts between civil laws and religious practice that were similarly settled through accommodation of religious exercise. Both North Carolina and Maryland excused Quakers from the requirement of removing their hats in court; Rhode Island exempted Jews from the requirements of the state marriage laws; and Georgia allowed groups of European immigrants to organize whole towns according to their own faith. Id., at 1471.

To be sure, legislatures, not courts, granted these early accommodations. But these were the days before there was a Constitution to protect civil liberties—judicial review did not yet exist. These legislatures apparently believed that the appropriate response to conflicts between civil law and religious scruples was, where possible, accommodation of religious *560 conduct. It is reasonable to presume that the drafters and ratifiers of the First Amendment—many of whom served in state legislatures—assumed courts would apply the Free Exercise Clause similarly, so that religious liberty was safeguarded.

E

The writings of the early leaders who helped to shape our Nation provide a final source of insight into the original understanding of the Free Exercise Clause. The thoughts of James Madison—one of the principal architects of the Bill of Rights—as revealed by the controversy surrounding Virginia's General Assessment Bill of 1784, are particularly illuminating. Virginia's debate over religious issues did not end with its adoption of a constitutional free exercise provision. Although Virginia had disestablished the Church of England in 1776, it left open the question whether religion might be supported on a nonpreferential basis by a so-called "general assessment." Levy, Essays on American Constitutional History, at 200. In the years between 1776 and 1784, the issue how to support religion in Virginia—either by general assessment or voluntarily—was widely debated. Curry, The First Freedoms, at 136.

By 1784, supporters of a general assessment, led by Patrick Henry, had gained a slight majority in the Virginia Assembly. M. Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment 23 (1978); Levy, supra, at 200. They introduced "A Bill Establishing a Provision for the Teachers of the Christian Religion," which proposed that citizens be taxed in order to support the Christian denomination of their choice, with those taxes not designated for any specific denomination to go to a public fund to aid seminaries. Levy, supra, at 200-201; Curry, supra, at 140— 141; Malbin, supra, at 23. Madison viewed religious assessment as a dangerous infringement of religious liberty and led the opposition to the bill. He took the case against religious assessment to the people of Virginia in his now-famous "Memorial *561 and Remonstrance Against Religious Assessments." Levy, supra, at 201. This pamphlet led thousands of Virginians to oppose the bill and to submit petitions expressing their views to the legislature. Malbin, supra, at 24. The bill eventually died in committee, and Virginia instead enacted a Bill for Establishing Religious Freedom, which Thomas Jefferson had drafted in 1779. Malbin, supra, at 24.

The "Memorial and Remonstrance" begins with the recognition that "[t]he Religion ... of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate." 2 Writings of James Madison 184 (G. Hunt ed. 1901). By its very nature, Madison wrote, the right to free exercise is "unalienable," both because a person's opinion "cannot follow the dictates of other[s]," and because it entails "a duty towards the Creator." Ibid.Madison continued:

"This duty [owed the Creator] is precedent both in order of time and degree of obligation, to the claims of Civil Society. . . . [E]very man who becomes a member of any particular Civil Society, [must] do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance." Id., at 184-185.

To Madison, then, duties to God were superior to duties to civil authorities—the ultimate loyalty was owed to God above all. Madison did not say that duties to the Creator are precedent only to those laws specifically directed at religion, nor did he strive simply to prevent deliberate acts of persecution or discrimination. The idea that civil obligations are subordinate to religious duty is consonant with the notion that government must accommodate, where possible, those religious practices that conflict with civil law.

*562 Other early leaders expressed similar views regarding religious liberty. Thomas Jefferson, the drafter of Virginia's Bill for Establishing Religious Freedom, wrote in that document that civil government could interfere in religious exercise only "when principles break out into overt acts against peace and good order." In 1808, he indicated that he considered "`the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises.' " 11 The Writings of Thomas Jefferson 428-429 (A. Lipscomb ed. 1904) (quoted in Office of Legal Policy, U. S. Dept. of Justice, Report to the Attorney General, Religious Liberty under the Free Exercise Clause 7 (1986)). Moreover, Jefferson believed that "`[e]very religious society has a right to determine for itself the time of these exercises, and the objects proper for them, according to their own particular tenets; and this right can never be safer than in their own hands, where the Constitution has deposited it.' " Ibid.

George Washington expressly stated that he believed that government should do its utmost to accommodate religious scruples, writing in a letter to a group of Quakers:

"[I]n my opinion the conscientious scruples of all men should be treated with great delicacy and tenderness; and it is my wish and desire, that the laws may always be as extensively accommodated to them, as a due regard to the protection and essential interests of the nation may justify and permit." Letter from George Washington to the Religious Society Called Quakers (Oct. 1789), in George Washington on Religious Liberty and Mutual Understanding 11 (E. Humphrey ed. 1932).

Oliver Ellsworth, a Framer of the First Amendment and later Chief Justice of the United States, expressed the similar view that government could interfere in religious matters only when necessary "to prohibit and punish gross immoralities *563 and impieties; because the open practice of these is of evil example and detriment." Oliver Ellsworth, Landholder, No. 7 (Dec. 17, 1787), reprinted in 4 Founders' Constitution 640. Isaac Backus, a Baptist minister who was a delegate to the Massachusetts ratifying convention of 1788, declared that "`every person has an unalienable right to act in all religious affairs according to the full persuasion of his own mind, where others are not injured thereby.' " Backus, A Declaration of Rights, of the Inhabitants of the State of Massachusetts-Bay, in Isaac Backus on Church, State, and Calvinism 487 (W. McLoughlin ed. 1968).

These are but a few examples of various perspectives regarding the proper relationship between church and government that existed during the time the First Amendment was drafted and ratified. Obviously, since these thinkers approached the issue of religious freedom somewhat differently, see Adams & Emmerich 21-31, it is not possible to distill their thoughts into one tidy formula. Nevertheless, a few general principles may be discerned. Foremost, these early leaders accorded religious exercise a special constitutional status. The right to free exercise was a substantive guarantee of individual liberty, no less important than the right to free speech or the right to just compensation for the taking of property. See P. Kauper, Religion and the Constitution 17 (1964) ("[O]ur whole constitutional history . . . supports the conclusion that religious liberty is an independent liberty, that its recognition may either require or permit preferential treatment on religious grounds in some instances . . . "). As Madison put it in the concluding argument of his "Memorial and Remonstrance":

"`[T]he equal right of every citizen to the free exercise of his Religion according to the dictates of [his] conscience' is held by the same tenure with all our other rights. . . . [I]t is equally the gift of nature; . . . it cannot be less dear to us; . . . it is enumerated with equal solemnity, *564 or rather studied emphasis." 2 Writings of James Madison, at 190.

Second, all agreed that government interference in religious practice was not to be lightly countenanced. Adams & Emmerich 31. Finally, all shared the conviction that "`true religion and good morals are the only solid foundation of public liberty and happiness.' " Curry, The First Freedoms, at 219 (quoting Continental Congress); see Adams & Emmerich 72 ("The Founders . . . acknowledged that the republic rested largely on moral principles derived from religion"). To give meaning to these ideas—particularly in a society characterized by religious pluralism and pervasive regulation—there will be times when the Constitution requires government to accommodate the needs of those citizens whose religious practices conflict with generally applicable law.

III

The Religion Clauses of the Constitution represent a profound commitment to religious liberty. Our Nation's Founders conceived of a Republic receptive to voluntary religious expression, not of a secular society in which religious expression is tolerated only when it does not conflict with a generally applicable law. As the historical sources discussed above show, the Free Exercise Clause is properly understood as an affirmative guarantee of the right to participate in religious activities without impermissible governmental interference, even where a believer's conduct is in tension with a law of general application. Certainly, it is in no way anomalous to accord heightened protection to a right identified in the text of the First Amendment. For example, it has long been the Court's position that freedom of speech—a right enumerated only a few words after the right to free exercise—has special constitutional status. Given the centrality of freedom of speech and religion to the American concept of personal liberty, it is altogether reasonable to conclude *565 that both should be treated with the highest degree of respect.

Although it may provide a bright line, the rule the Court declared in Smith does not faithfully serve the purpose of the Constitution. Accordingly, I believe that it is essential for the Court to reconsider its holding in Smith —and to do so in this very case. I would therefore direct the parties to brief this issue and set the case for reargument.

I respectfully dissent from the Court's disposition of this case.

Justice Souter, dissenting.

To decide whether the Fourteenth Amendment gives Congress sufficient power to enact the Religious Freedom Restoration Act of 1993, the Court measures the legislation against the free-exercise standard of Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990). For the reasons stated in my opinion in Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 564-577 (1993) (opinion concurring in part and concurring in judgment), I have serious doubts about the precedential value of the Smith rule and its entitlement to adherence. These doubts are intensified today by the historical arguments going to the original understanding of the Free Exercise Clause presented in Justice O'Connor's dissent, ante, at 548-564, which raises very substantial issues about the soundness of the Smith rule. See also ante, p. 537 (Justice Scalia, concurring in part) (addressing historical arguments). But without briefing and argument on the merits of that rule (which this Court has never had in any case, including Smith itself, see Lukumi, 508 U. S., at 571-572), I am not now prepared to join Justice O'Connor in rejecting it or the majority in assuming it to be correct. In order to provide full adversarial consideration, this case should be set down for reargument permitting plenary reexamination of the issue. Since the Court declines to follow that course, our free-exercise *566 law remains marked by an "intolerable tension," id., at 574, and the constitutionality of the Act of Congress to enforce the free-exercise right cannot now be soundly decided. I would therefore dismiss the writ of certiorari as improvidently granted, and I accordingly dissent from the Court's disposition of this case.

Justice Breyer, dissenting.

I agree with Justice O'Connor that the Court should direct the parties to brief the question whether Employment Div., Dept. of Human Resources of Ore. v. Smith,494 U. S. 872 (1990), was correctly decided, and set this case for reargument. I do not, however, find it necessary to consider the question whether, assuming Smith is correct, § 5 of the Fourteenth Amendment would authorize Congress to enact the legislation before us. Thus, while I agree with some of the views expressed in the first paragraph of Part I of Justice O'Connor's dissent, I do not necessarily agree with all of them. I therefore join Justice O'Connor's dissent, with the exception of the first paragraph of Part I.

Lauren GREY, Victor Williams, and Nicholas Guarino, on Behalf of Themselves and All Persons Similarly Situated, Plaintiffs-Appellees, v. La Mar HASBROUCK, M.D., Director of the Department of Public Health, in His Official Capacity as State Registrar of Vital Records, Defendant-Appellant

No. 1-13-0267.

Decided May 22, 2015.

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and Jane Elinor Notz and Brett E. Legner, Assistant Attorneys General, of counsel), for appellant.

John A. Knight, Harvey Grossman, and Ruth Z. Brown, all of Roger Baldwin Foundation of ACLU, Inc., and David M. Kroeger and Kyle A. Palazzolo, both of Jenner & Block LLP, both of Chicago, and James D. Esseks, of American Civil Liberties Union Foundation, of New York, New York, for appellees.

Justice HALL delivered the judgment of the court, with opinion:

¶ 1 The defendant, La Mar Hasbrouck, M.D., State Registrar of Vital Records, appeals an order of the circuit court of Cook County awarding attorney fees and costs to the plaintiffs, Lauren Grey, Victor Williams and Nicholas Guarino, in conjunction with the entry of a consent decree. The sole issue on appeal is whether the award of attorney fees and costs was barred by the doctrine of sovereign immunity. For the reasons set forth below, we conclude that sovereign immunity does not bar the award of attorney fees and costs. We affirm the order of the circuit court.

¶ 2 Section 17(1)(d) of the Vital Records Act (410 ILCS 535/17(1)(d) (West 2010)) provides in pertinent part as follows:

"(1) For a person born in this State, the State Registrar of Vital Records shall establish a new certificate of birth when he receives any of the following:

* * *

(d) An affidavit by a physician that he has performed an operation on a person, and that by reason of the operation the sex designation on such person's birth record should be changed. The State Registrar of Vital 822*822 Records may make any investigation or require any further information he deems necessary."

¶ 3 On May 10, 2011, the plaintiffs brought a class action lawsuit on behalf of themselves and a class of persons similarly situated against the defendant in his official capacity as the Director of Public Health and the State Registrar of Vital Records.1 The plaintiffs and the members of the class are transgender persons who were born in Illinois.

¶ 4 The complaint alleged that, prior to 2005, the defendant routinely changed the gender mark on Illinois birth certificates to accurately reflect the gender identity for persons who had undergone a form of gender confirmation surgery that did not include genital surgery. The plaintiffs further alleged that in or about 2005, the defendant adopted a practice in which he refused to correct the sex designation on an Illinois birth certificate to match the person's gender identification unless the person had undergone genital surgery. The plaintiffs maintained that in denying their applications to change the sex designation on their birth certificates without the genital surgery, the defendant violated the Vital Records Act and their rights to due process and privacy under the Illinois Constitution (Ill. Const. 1970, art. I, §§ 6, 12). The plaintiffs sought declaratory and injunctive relief, and an award of costs and reasonable attorney fees pursuant to section 5 of the Illinois Civil Rights Act of 2003 (740 ILCS 23/5 (West 2010)) (the Civil Rights Act). On October 23, 2012, the parties entered into a consent decree resolving the substantive issues raised in the complaint.

¶ 5 On December 11, 2012, the circuit court conducted a hearing on the plaintiffs' request for an award of attorney fees as provided for under the Civil Rights Act. The plaintiffs argued that the legislature intended to waive sovereign immunity under the Civil Rights Act by providing for the award of attorney fees. They further argued that the state officer exception to sovereign immunity applied. The circuit court agreed with the plaintiffs that the state officer exception applied in this case. The court awarded costs and attorney fees in the amount of $135,000 to the plaintiffs as the prevailing party. The defendant appeals.

¶ 6 ANALYSIS

¶ 7 I. Standard of Review

¶ 8 "Whether a circuit court has subject matter jurisdiction presents a question of law and is subject to de novo review." Wolinsky v. Kadison, 2013 IL App (1st) 111186, ¶ 31, 370 Ill.Dec. 205, 987 N.E.2d 971; see Hadley v. Department of Corrections, 362 Ill.App.3d 680, 683, 298 Ill.Dec. 635, 840 N.E.2d 748 (2005) (a court lacks jurisdiction over lawsuits barred by sovereign immunity). The court also applies the de novo standard of review to the construction of a statute. Wolinsky, 2013 IL App (1st) 111186, ¶ 31, 370 Ill.Dec. 205, 987 N.E.2d 971.

¶ 9 II. Discussion

¶ 10 A. The Doctrine of Sovereign Immunity

¶ 11 The 1970 Illinois Constitution abolished the doctrine of sovereign immunity "`[e]xcept as the General Assembly may provide by law.'" Leetaru v. Board of Trustees of the University of Illinois, 2015 IL 117485, ¶ 42, 392 Ill.Dec. 275, 32 N.E.3d 583 (quoting Ill. Const. 1970, art. XIII, § 4). Pursuant to that 823*823 authority, the General Assembly reinstituted the doctrine when it enacted the State Lawsuit Immunity Act (745 ILCS 5/0.01 et seq. (West 2012)). Leetaru, 2015 IL 117485, ¶ 42, 392 Ill.Dec. 275, 32 N.E.3d 583. "The doctrine of sovereign immunity exists in Illinois pursuant to the Immunity Act, which mandates that the State or a department of the State cannot be a defendant in an action brought directly in the circuit court, except where the State has expressly consented to be sued." Watkins v. Office of the State Appellate Defender, 2012 IL App (1st) 111756, ¶ 21, 364 Ill.Dec. 109, 976 N.E.2d 387. The State's consent to be sued must be "`clear and unequivocal.'" In re Special Education of Walker, 131 Ill.2d 300, 303, 137 Ill.Dec. 575, 546 N.E.2d 520 (1989) (quoting Martin v. Giordano, 115 Ill.App.3d 367, 369, 71 Ill.Dec. 245, 450 N.E.2d 933 (1983)).

¶ 12 Sovereign immunity protects the State from interference with the performance of governmental functions and serves to preserve and protect state funds. Lynch v. Department of Transportation, 2012 IL App (4th) 111040, ¶ 21, 365 Ill.Dec. 747, 979 N.E.2d 113. Statutes authorizing costs are in derogation of the common law and therefore must be strictly construed. Williams v. Davenport, 306 Ill.App.3d 465, 469, 239 Ill.Dec. 374, 713 N.E.2d 1224 (1999). "Nothing will be read into such statutes by intendment or implication." Walker, 131 Ill.2d at 304, 137 Ill.Dec. 575, 546 N.E.2d 520.

¶ 13 B. Waiver of Sovereign Immunity

¶ 14 The defendant contends that sovereign immunity barred an award of attorney fees and costs pursuant to section 5(c) of the Civil Rights Act. We disagree.

¶ 15 Section 5 of the Civil Rights Act prohibits discrimination and provides in pertinent part as follows:

"(a) No unit of State, county, or local government in Illinois shall:

(1) exclude a person from participation in, deny a person the benefits of, or subject a person to discrimination under any program or activity on the grounds of that person's race, color, national origin, or gender; or

(2) utilize criteria or methods of administration that have the effect of subjecting individuals to discrimination because of their race, color, national origin, or gender.

(b) Any party aggrieved by conduct that violates subsection (a) may bring a civil lawsuit, in a federal district court or State circuit court, against the offending unit of government. Any State claim brought in federal district court shall be a supplemental claim to a federal claim. * * * If the court finds that a violation of paragraph (1) or (2) of subsection (a) has occurred, the court may award to the plaintiff actual damages. The court, as it deems appropriate, may grant as relief any permanent or preliminary negative or mandatory injunction, temporary restraining order, or other order.

(c) Upon motion, a court shall award reasonable attorneys' fees and costs, including expert witness fees and other litigation expenses, to a plaintiff who is a prevailing party in any action brought:

(1) pursuant to subsection (b); or

(2) to enforce a right arising under the Illinois Constitution." 740 ILCS 23/5 (West 2010).2

¶ 16 General enactments imposing liability cannot be applied to the State in 824*824 the absence of a specific legislative intent to so apply them. Martin, 115 Ill.App.3d at 370, 71 Ill.Dec. 245, 450 N.E.2d 933. In Walker, section 2-1303 of Code of Civil Procedure (Ill.Rev.Stat. 1983, ch. 110, ¶ 2-1303) provided for the payment of the interest at 9% or "6% per annum when the judgment debtor is a unit of local government, * * * a school district, a community college district, or any other governmental entity." (Internal quotation marks omitted.) Walker, 131 Ill.2d at 303, 137 Ill. Dec. 575, 546 N.E.2d 520. The supreme court found the language "any other governmental entity" was not a "sufficiently clear expression by the legislature to constitute a waiver of the State's immunity." Walker, 131 Ill.2d at 304, 137 Ill.Dec. 575, 546 N.E.2d 520; City of Springfield v. Allphin, 82 Ill.2d 571, 578-79, 45 Ill.Dec. 916, 413 N.E.2d 394 (1980) (general interest statutes do not impose liability for prejudgment or postjudgment interest against the State); see also Department of Revenue v. Appellate Court, 67 Ill.2d 392, 398, 10 Ill.Dec. 536, 367 N.E.2d 1302 (1977) (the State did not consent to the payment of appeal costs where the statute authorizing the imposition of costs did not reference the State).

¶ 17 In Williams, this court addressed whether the State could be held jointly and severally liable for attorney fees and costs of a guardian ad litem by the circuit court. The Illinois Department of Public Aid (the Department) argued that under the Court of Claims Act (705 ILCS 505/8(a) (West 1998)), the Court of Claims had exclusive jurisdiction of claims against the State. Therefore, the circuit court's order was void for lack of subject matter jurisdiction. Williams, 306 Ill.App.3d at 467-68, 239 Ill.Dec. 374, 713 N.E.2d 1224. This court agreed, finding that section 506(b) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/506(b) (West 1998)), which provided for the payment of the attorney fees and costs of the guardian ad litem, did not contain an explicit waiver of the State's immunity that would amount to its consent to pay the fees for the guardian ad litem. Williams, 306 Ill.App.3d at 469, 239 Ill.Dec. 374, 713 N.E.2d 1224. We determined that the language in section 506, "`any adult party,'" was not specific enough to constitute a waiver of sovereign immunity for the payment of attorney fees. Department of Revenue, 67 Ill.2d at 396-98, 10 Ill.Dec. 536, 367 N.E.2d 1302 (holding that, in the absence of a specific reference to the State, terms such as "any person" and "either party" were not specific enough to impose fees and costs against the Department for the printing of transcripts).

¶ 18 The defendant does not dispute that the plaintiffs had the right to sue the defendant pursuant to section 5(a) of the Civil Rights Act but argues that section 5(c) of the Civil Rights Act does not contain a clear unequivocal and affirmative expression of the State's consent to be liable for attorney fees because there is no specific reference to the State in section 5(c). The fact that section 5(c) contains no specific reference to the State is not determinative of whether the State has waived immunity for purposes of the imposition of attorney fees under the Civil Rights Act. When the court addresses whether the State has waived sovereign immunity, "[t]he critical issue is whether the legislature intended to impose liability upon the State—not how or where the intent is expressed." Martin, 115 Ill.App.3d at 370, 71 Ill.Dec. 245, 450 N.E.2d 933.

¶ 19 In construing a statute, the court's primary goal is to ascertain and give effect to the intent of the legislature. NAB Bank v. LaSalle Bank, N.A., 2013 IL App (1st) 121147, ¶ 10, 368 Ill.Dec. 429, 984 N.E.2d 154. "[L]egislative intent must be garnered from a review of the entire statutory 825*825 plan." Cullen v. Retirement Board of the Policemen's Annuity & Benefit Fund, 271 Ill.App.3d 1105, 1109, 208 Ill.Dec. 398, 649 N.E.2d 454 (1995). "The statutory provision must be read as a whole and all relevant parts should be considered." Lohr v. Havens, 377 Ill.App.3d 233, 236, 316 Ill.Dec. 319, 879 N.E.2d 386 (2007). A court should not read language into a statute that does not exist. Lohr, 377 Ill. App.3d at 236, 316 Ill.Dec. 319, 879 N.E.2d 386.

¶ 20 The legislature subjected the State to the provisions of the Civil Rights Act. Section 5(a) specifically refers to the "State" as an entity of government that can be sued under section 5(b). Section 5(c) provides that the court may award attorney fees and costs to a party who prevails in any action brought pursuant to section 5(b), or to enforce a right arising under the Illinois Constitution. After allowing the State to be sued under the Civil Rights Act, the legislature, had it wished to exempt the State from the obligation of paying attorney fees and costs as provided therein, could have done so. As our supreme court observed recently in Illinois State Treasurer v. Illinois Workers' Compensation Comm'n, 2015 IL 117418, 391 Ill.Dec. 18, 30 N.E.3d 288, "where the legislature wishes to excuse the State or other entities from filing and other fees imposed by the circuit court in connection with litigation, it knows how and has done so expressly." Illinois State Treasurer, 2015 IL 117418, ¶ 35, 391 Ill.Dec. 18, 30 N.E.3d 288 (citing 705 ILCS 105/27.2a(dd), 27.1a(dd), 27.2(dd) (West 2012)).

¶ 21 To accept the defendant's argument would require this court to read into the statute an exemption for the State that the legislature could have but did not provide in section 5(c). Construing section 5 of the Civil Rights Act as a whole, the State consented to be sued and, therefore, consented to pay attorney fees and costs to the prevailing party. Sovereign immunity does not bar an award of attorney fees and costs pursuant to section 5(c) of the Civil Rights Act against the State.

¶ 22 C. Officer Suit Exception to Sovereign Immunity

¶ 23 Assuming, arguendo, that the doctrine of sovereign immunity barred the award of attorney fees and costs against the State, we agree with the circuit court that the award of attorney fees and costs to the plaintiffs was proper since the officer suit exception to sovereign immunity applied in this case.

¶ 24 "[T]he determination of whether a suit is against the State is dependent on the issues involved and the relief sought rather than by the formal identification of the parties." Herget National Bank of Pekin v. Kenney, 105 Ill.2d 405, 408, 86 Ill.Dec. 484, 475 N.E.2d 863 (1985). "`When the State will be directly and adversely affected by the judgment or decree, making the State the real party against whom relief is sought, the suit is against the State.'" Herget, 105 Ill.2d at 408-09, 86 Ill.Dec. 484, 475 N.E.2d 863 (quoting Hudgens v. Dean, 75 Ill.2d 353, 357, 27 Ill.Dec. 193, 388 N.E.2d 1242 (1979)). There is a recognized presumption that the State or a department thereof cannot violate the constitution or the laws of the State. Herget, 105 Ill.2d at 411, 86 Ill.Dec. 484, 475 N.E.2d 863. Where such a violation takes place, the violation is "deemed to be made `by a State officer or the head of a department of the State, and such officer or head may be restrained by proper action instituted by a citizen.'" Herget, 105 Ill.2d at 411, 86 Ill.Dec. 484, 475 N.E.2d 863 (quoting Schwing v. Miles, 367 Ill. 436, 441-42, 11 N.E.2d 944 (1937)).

¶ 25 Under the "officer suit exception," "when the action of a state officer is undertaken without legal authority, such 826*826 action `strips a State officer of his official status * * * [and] his conduct is not then regarded as the conduct of the State, nor is the action against him considered an action against the State.'" PHL, Inc. v. Pullman Bank & Trust Co., 216 Ill.2d 250, 261, 296 Ill.Dec. 828, 836 N.E.2d 351 (2005) (quoting Moline Tool Co. v. Department of Revenue, 410 Ill. 35, 37, 101 N.E.2d 71 (1951)). Where the plaintiff is not attempting to enforce a present claim against the State but rather seeks to enjoin the defendant from taking actions in excess of his delegated authority, and in violation of the plaintiff's protectable legal interests, the suit does not contravene the immunity prohibition. Bio-Medical Laboratories, Inc. v. Trainor, 68 Ill.2d 540, 548, 12 Ill.Dec. 600, 370 N.E.2d 223 (1977).

¶ 26 In the present case, the plaintiffs did not seek money damages, only injunctive and declaratory relief aimed at enjoining the defendant from his practice of refusing to issue new birth certificates to the plaintiffs and the members of the class as he was required to do under section 17(1)(d) of the Vital Statistics Act. The consent decree provided:

"Defendant is enjoined from denying applications for a change in the sex designation on persons' existing Illinois birth records solely because those individuals have not undergone genital reconstruction surgery to match their internal sense of gender. This consent decree is not intended to change, alter or limit any other statutory requirement of the Illinois Vital Records Act [citation].

* * *

Defendant shall, within thirty (30) days, post on the Illinois Department of Public Health website a clarification that genital reconstruction surgery is no longer a requirement for obtaining a change in the sex designation on an existing Illinois birth certificate."

¶ 27 In this case, the defendant imposed a condition on the issuance of birth certificates not previously required under section 17(1)(d), and absent a change to section 17(1)(d). Therefore, the defendant exceeded his authority under the Vital Records Act and violated the plaintiffs' and the class members' rights under the Vital Records Act and their rights to privacy and due process under the Illinois Constitution. The injunctive and declaratory relief that was granted did not directly or adversely affect the State. The fact that the plaintiffs sought attorney fees and costs did not transform the plaintiffs' lawsuit into one against the State. "[T]he mere fact that a successful action would cause money to be paid from the state treasury does not mean that the action is one against the State." Wilson v. Quinn, 2013 IL App (5th) 120337, ¶ 15, 376 Ill.Dec. 874, 1 N.E.3d 586 (the plaintiffs' suit seeking declaratory relief, costs and other equitable relief was not an attempt to impose liability in tort or contract on the State); in accord Illinois County Treasurers' Ass'n v. Hamer, 2014 IL App (4th) 130286, 381 Ill.Dec. 22, 9 N.E.3d 1141.

¶ 28 State Building Venture v. O'Donnell, 239 Ill.2d 151, 346 Ill.Dec. 518, 940 N.E.2d 1122 (2010), is distinguishable. In that case, count III of State Building Venture's (SBV) complaint sought a declaratory judgment, finding that a lease, including renewal options, was binding, and to award costs, expenses and fees. State Building Venture, 239 Ill.2d at 156, 346 Ill.Dec. 518, 940 N.E.2d 1122. The supreme court found that "[i]n effect, count III of SBV's complaint seeks a determination of its renewal rights, a claim founded on a contract entered into between SBV and the state. Additionally, count III of SBV's `declaratory judgment action' asks for a finding that `the Enabling Statute authorized the State to enter into the Lease with [SBV].' This claim falls squarely within the exclusive 827*827 jurisdiction of the Court of Claims." State Building Venture, 239 Ill.2d at 164-65, 346 Ill.Dec. 518, 940 N.E.2d 1122. In contrast, like the plaintiffs in Illinois County Treasurers' Ass'n and Wilson, in the present case, the plaintiffs' lawsuit was not an attempt to impose liability in contract or tort on the State. Therefore, the award of attorney fees and costs to the plaintiff's was proper under the state officer exception to sovereign immunity.

¶ 29 CONCLUSION

¶ 30 We conclude that in section 5 of the Civil Rights Act, the State waived sovereign immunity when it consented to be sued, and in the absence of any language that limited its consent or exempted it from the provisions of section 5(c), the State's consent extended to paying the plaintiffs, as prevailing parties, reasonable attorney fees and costs. We further conclude that the circuit court's award of attorney fees and costs to the plaintiffs was proper under the state officer exception to the doctrine of sovereign immunity.

¶ 31 The judgment of the circuit court is affirmed.

¶ 32 Affirmed.

Presiding Justice HOFFMAN and Justice LAMPKIN concurred in the judgment and opinion.

1

The original defendant was Damon T. Arnold, then the State Registrar of Vital Records.

2

Neither the plaintiff's status as prevailing parties nor the reasonableness of the attorney fees and costs are at issue in this appeal.