Court ponders broad religious freedom
issues
By DAVID W. KINKOPF
Could your city government prohibit your parish from expanding its
church building or its social outreach programs based on zoning or historic
preservation laws? Could your county government criminalize the consumption of
alcohol and thereby prohibit the use of wine at a Catholic Mass? The Supreme
Court is poised to decide these questions and the course of religious freedom
in this country.
On Feb. 19, the Court heard arguments in City of Boerne v.
Flores after the city told a Catholic parish it could not expand its
existing church building to accommodate an increase in church attendance
because part of the church's facade was located in the city's "historic
district." The parish and its archbishop sued, relying on a sweeping 1993 law,
the Religious Freedom Restoration Act. By enacting RFRA, Congress prohibited
any level of federal, state or local government from substantially burdening
the exercise of religion without a compelling interest.
The city countered that Congress violated the Constitution by
enacting such a broad statute. If the city is correct and RFRA is
unconstitutional, religious individuals and organizations will be left with
little recourse in challenging general laws that may indirectly burden or even
flatly prohibit religious activities. Thus, the Supreme Court's decision,
expected at any time, will dictate the fate of religious freedom disputes,
including the religious rights of children in public schools, the religious
rights of prisoners and religious discrimination against homosexuals.
RFRA was the result of lobbying by an unprecedented alliance of
religious groups, including the United States Catholic Conference, the American
Civil Liberties Union, the Baptist Joint Committee, the Anti-Defamation League
and Americans United for Separation of Church and State.
Peyote decision
These groups were outraged by a 1990 decision, Employment
Division v. Smith, involving the use of the hallucinogenic drug
peyote in a Native American religious ceremony. In the Smith decision,
the Supreme Court ruled that Oregon's general criminal law against the
possession of peyote did not violate the First Amendment's protection of
religious freedom even though the law criminalized religious conduct.
The split decision in Smith, authored by Justice Antonin
Scalia, fundamentally altered the manner in which the courts looked at
religious freedom claims. Prior to Smith, courts required governments to
make exceptions to laws that burdened religious exercise, unless the government
had a compelling reason in not granting a religious exemption. After
Smith, courts no longer demanded a compelling reason before allowing the
government to prohibit religious conduct indirectly.
As long as the government did not single out religious use
specifically, it could prohibit actions regardless of the effect on an
individual's religiously motivated conduct. Thus, under the Court's view of the
First Amendment, a neutral and generally applicable criminal law that
prohibited the consumption of alcohol could be enforced against a Catholic
priest and the communicants who drank wine during the Eucharist.
Justice Scalia disappointed those who hoped he would find broad
constitutional protection for religious conduct because of his conservative
philosophy and his strong, publicly expressed Catholic faith. Scalia's
consistent belief in a very limited role for the U.S. Constitution won the day
at the expense of religious freedom. In Scalia's view, a legislature can choose
to exempt religious uses from a particular criminal prohibition, but government
is not required to do so by the Constitution.
The Smith decision angered many who believe that people of
faith, particularly members of minority religions without political clout,
require broad protection from government regulations that burden or prohibit
religious conduct. A nearly unanimous Congress passed the Religious Freedom
Restoration Act as an attempt to "restore," by means of a statute, the
pre-Smith constitutional standard that gave broad protection to
religious freedom. The question for the Supreme Court is whether Congress can,
in effect, overrule the Smith decision through a new religious freedom
statute.
Impact of RFRA
With RFRA in their attorneys' arsenal, religious organizations and
individuals relied on the new law to seek exemptions from a variety of
government regulations. In addition to challenges to land use regulations such
as in Boerne, landlords with religious objections to renting to
homosexual or unmarried couples relied on RFRA to refuse to rent to such
couples when they were required to do so by local antidiscrimination
statutes.
Also seeking exemptions under RFRA were religious employers who
fired individuals based on religious belief, and public school children whose
religion required the wearing of ceremonial knives in violation of school
rules. However, by far the most common lawsuits under RFRA have been filed by
prisoners, who have sought access to religious items ranging from the
extravagant (saunas) and the offensive (swastikas) to seemingly unobjectionable
items more familiar to Catholics (rosaries and scapulars). Other prisoners
wanted to exercise claimed religious rights to refuse medical treatment or pray
aloud in a foreign language.
Most courts simply assumed RFRA was constitutional. Some claims
have been denied because the courts questioned the sincerity of the claim or
found the asserted religious exemption to be based on an "optional" religious
belief of the claimant. However, some RFRA claims have been successful and led,
for example, to the opening of church soup kitchens where this would have been
prohibited under local zoning laws.
However, RFRA's potential downfall is inherent in its sweeping
scope.
Local governments forced by RFRA to accommodate religious
practices soon challenged the constitutionality of RFRA. The main arguments
are: 1) a judicial power argument that Congress cannot effectively overrule the
Supreme Court's Smith decision; 2) a federalism or "states' rights"
argument that the federal government cannot order state and local governments
to follow the federal government's laws in matters of local concern (for
example, in the operation of schools and prisons); and 3) a "separation of
church and state" argument that RFRA in effect favors religious practices (for
example, permitting a religious soup kitchen where a secular soup kitchen would
be banned).
Most courts that have addressed the constitutionality of RFRA have
upheld the law, and the Supreme Court surprised many observers by deciding to
hear the Boerne case. The Court also surprised many observers with its
skeptical questioning of those who argued in favor of RFRA's constitutionality.
Every argument against RFRA seemed to have a champion on the high court.
Justice Scalia stated his belief that Congress may have
overstepped its authority in the area of civil rights legislation by passing
RFRA. Justice Sandra Day O'Connor expressed concern over the flood of prisoner
lawsuits against state governments. Justice Anthony Kennedy was troubled that
the law might benefit religions over other groups in our society.
The justices also took their concerns beyond the narrow
controversy over religious freedom and addressed broader issues involving the
power of Congress to enact civil rights legislation that imposes on states'
rights to regulate areas such as prison management, zoning and criminal laws.
The questions suggested the Court may use the Boerne case to limit
Congress' general civil rights powers, a ruling that would impact legislation
beyond RFRA, such as the Voting Rights Act.
Speculating on the outcome of Supreme Court decisions is a pastime
of many lawyers, but guesses are particularly difficult in the Boerne
case. Each justice is likely to have conflicting views on the constitutionality
of RFRA, conflicts reflected in the strange alignment of groups that have
weighed in on the issue.
Many "conservatives" applaud RFRA as a way to protect traditional
religious values, and many "liberals" support the measure as a broad civil
rights statute designed in part to protect the religious expression of minority
groups without strong political influence, such as Native Americans and
prisoners.
On the other hand, some conservatives and liberals have strongly
opposed RFRA. Some "tough-on-crime" conservatives bristle at the use of RFRA by
prisoners to wrest concessions from prison officials. Some liberal commentators
condemn RFRA as a government-imposed endorsement of religion in violation of
the Establishment Clause's "separation of church and state."
With the conflicting constitutional and practical considerations
involved, the safest prediction about the eventual decision is that it will not
be unanimous.
Whom to trust?
In the final analysis, the case may turn on a judgment about who
should be entrusted with protecting religious freedom. With its decision in
Smith, the Supreme Court tried to extricate the courts from deciding
most issues in religious freedom claims and sent the matter back to federal and
state legislatures.
Through the nationwide standard embodied in RFRA, Congress
expressed its distrust of ad hoc protection by local governments and has
attempted to place the responsibility back with the courts to safeguard
religious rights just as it has done with voting rights, employment
discrimination and other civil rights statutes. In Boerne, the Supreme
Court must decide whether it is willing to accept this responsibility.
David W. Kinkopf, an attorney with Gallagher, Evelius &
Jones in Baltimore, recently represented the Baltimore archdiocese in
Cardinal Keeler v. City of Cumberland, its successful First Amendment
challenge to Maryland's history district regulations.
National Catholic Reporter, June 6,
1997
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