Analysis Ruling revives religious freedom effort
By ROBERT F. DRINAN
Special to the National Catholic Reporter
A severe and unprecedented restriction on religious freedom will
result from the June 25 U.S. Supreme Court decision declaring unconstitutional
the Religious Freedom Restoration Act of 1993.
The ruling, decided 6-3, came in the case of the City of
Boerne v.Flores, referring to Archbishop Patrick F. Flores, the
Catholic Archbishop of San Antonio, Texas.
The six Supreme Court justices who invalidated the act -- known as
RFRA (pronounced Rifrah) -- set aside the votes of almost every member
of the U.S. Senate and House of Representatives and the approval of President
Clinton in 1993.
Their principal motivation appears to be the idea that RFRA may
have attempted to set aside the Supreme Court's 5-4 decision in Smith
v.Employment Division (1990), which said for the first time in U.S.
history that all religious persons who are adversely affected by a neutral law
of general application have no remedy against that law under the First
Amendment.
In the case of Smith, the court held that the general law
prohibiting use of the drug peyote overrode Native Americans' right to use the
substance in traditional religious ceremonies.
In reaction to that harsh ruling a coalition embracing almost
every religious group in the nation -- including the U.S. Catholic Conference
-- came together to enact RFRA. This law means that any person whose religious
freedom is narrowed by a law has a right to require that the lawmaker
demonstrate a compelling interest that justifies an infringement on religious
freedom. It also requires that any burden imposed upon religious practice by
the state be the least restrictive of possible alternatives.
RFRA has prompted 300 cases -- 50 percent of them by prisoners.
Some of the suits have been frivolous, which is why some 15 states asked the
Supreme Court to nullify RFRA. But an astonishing cross section of religious
and civic bodies filed briefs on behalf of the act.
The House and Senate based their action on Section 5 of the 14th
Amendment, which confers on Congress the right to enact legislation to enforce
the rights guaranteed by that amendment. Laws enacted by Congress pursuant to
this power now include virtually all of the privileges granted in the first 10
amendments.
The Supreme Court asserted -- without any proof -- that Section 5
conferred the power to enact remedial but not substantive rights. That claim is
novel and unwarranted. Congress has enacted a wide variety of laws to guarantee
the right to vote, the right not to be discriminated against in employment,
education and housing and the right to privacy -- none of which has been struck
down by the high court.
The remedy granted to Congress in 1868 with the 14th Amendment has
worked. At least until the topic was a strengthening of the free exercise
guaranteed in the First Amendment, which was adopted in 1791.
The majority of the court clearly felt that their authority and
their unique role was usurped by RFRA. Justice Antonin Scalia, the author of
the majority opinion in Smith v. Employment Division, was no
doubt influential in getting five other votes to protect his opinion, which in
the three years before RFRA was enacted had been the precedent used by several
judges to deny or restrict the free exercise of religion.
Justice Sandra Day O'Connor, dissenting in the case, which
involves a city's refusal to allow expansion of a church in Boerne, Texas,
expressed her outrage at the majority view as well as her deep conviction that
Smith was wrongly decided.
The 50 plus religious and civil liberties groups that initiated
RFRA and worked for its enactment came together in consternation in Washington
to consider the options left after the devastating ruling of June 25. The
coalition is still amazing--the American Civil Liberties Union, most Jewish
groups, the Christian Coalition and the Catholic Bishops. The dominant
intuition of this group is not to attempt a constitutional amendment but to
work for the reversal of Smith. One tool to use might be Federal Rule
60(b), which was successfully applied to reverse a 1985 ruling that forbade
federally funded teachers from giving remedial instruction on the premises of
church-related schools. That welcome decision came down from the high court on
June 23.
There are other options for the advocates of the revised RFRA. But
no clear or obvious path is in sight.
The defenders of unpopular religious groups are convincedtheir
legal and constitutional weapons have been destroyed. The law now reverts to
the frightening 1990 ruling in Smith, which said, in effect, that any
person or group whose religious freedom is hampered by a law of general
applicability not designed to inhibit religion has only one remedy -- to go to
the legislature.
That this avenue is futile for small and unknown religious sects
was of no consequence to the Supreme Court in Smith or in Flores.
Justice Anthony Kennedy, author of the majority opinion in Flores,
minimized discrimination against religion as involving only "incidental
burdens."
American history demonstrates that the preservation of religious
freedom has been a precious value at every age of this nation's history. The
thirteen colonies would not ratify the Constitution without a Bill of Rights,
the first of which protects against the establishment of state religion and
guarantees the free exercise of religion. The Supreme Court has vindicated
religious freedom for Amish, Jehovah's Witnesses, Sabbatarians and other
non-mainstream groups.
Esteem for religious freedom, downgraded in Smith v.
Employment Division, was spectacularly demonstrated in the outpouring of
support for RFRA from almost all religious groups. The only consolation after
the Supreme Court's recent destruction of the act is the stalwart determination
of religious and civil liberties groups in America to preserve and enhance the
free exercise of religion.
A legal and constitutional way to guarantee that goal has to be
discovered once again. The road may be long and winding, but the American
people cherish religious freedom so passionately that even a major mistake by
the United States' Supreme Court cannot in the long run obscure, inhibit nor
deter it.
Jesuit Fr. Robert Drinan is a professor at Georgetown
University Law Center.
National Catholic Reporter, July 18,
1997
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