Does Congress Or Court Define Religious Rights?

The balance between church and state has long been a difficult and emotionally charged one.

But in 1990, a landmark Supreme Court ruling tipped the scales sharply toward the state, according to most legal scholars. To redress the imbalance, a nationwide coalition of religious groups worked with Congress to fashion the Religious Freedom Restoration Act of 1993. Now, the American religious community is holding its breath again.

The high court last week agreed to decide a case that marks the first test of the constitutionality of RFRA.

"Quite a lot is hanging in the balance here. What is at stake is daily religious practice," says Melissa Rogers of the Baptist Joint Committee in Washington. "A lot of people take it for granted or assume their religious rights are protected. This case ought to show otherwise."

The case arose when a Roman Catholic church in Boerne, Texas, was blocked by the city from expanding its edifice to meet the needs of an overflowing congregation - and used RFRA to challenge the city council's decision. The church is in a historic district of Boerne.

But stakes in the case go far beyond a single church in Texas. If the Supreme Court upholds RFRA, individuals will continue to have federal leverage when asking government officials to accommodate their religious practice - even if that practice conflicts with state laws or policies. In recent months, for example, RFRA enabled inmates to wear a cross and a religious seminary to fire an employee teaching theology contrary to doctrine.

On the other hand, if the high court rules that Congress exceeded its power by passing RFRA, religious rights would be virtually unprotected. Officials, some of whom may feel hostility or bias toward religion, would be under no obligation to find ways of accommodating faith - perhaps banning religious garb in certain public areas or requiring landlords to rent housing to unmarried or gay couples against their religious principles.

The religious community would be under "tremendous pressure" to fight for a constitutional amendment to uphold the Bill of Rights clause protecting free exercise of religion, says Marc Stern, legal counsel for the American Jewish Congress.

Neither the extraordinary depth of feeling by the religious community nor the landmark context of the new case can be understood without examining the events of April 18, 1990. On that day, and without warning, the Supreme Court issued a ruling that singlehandedly erased religious-liberty standards dating back decades and caused the largest coalition of religious and civil liberties groups in US history to spend the next six years trying to recover those rights.

The opinion in Smith v. Employment Division, engineered and written by Justice Antonin Scalia, still alternately stuns, angers, and puzzles constitutional scholars and religious leaders.

Prior to the 1990 decision, the court balanced religious-freedom claims against the government's interest in preserving health, safety, order, and so on, and said the state could not "substantially burden" religious freedom without a "compelling interest." In Smith, a case involving an Oregon Indian tribe's use of peyote in sacred ceremonies, the court said the government no longer needed to balance any religious-freedom claims. The Constitution does not guarantee "equal protection" to free exercise of faith; it only guards against harmful discrimination when a faith is singled out by the state for unequal treatment. Justice Scalia admitted in Smith that this standard would place minority faiths at a "disadvantage," but he said this was an "unavoidable consequence of democratic government."

"For a court that claims not to like judicial activism, this was stunning," says Douglas Laycock, a leading First Amendment scholar at the University of Texas, who will argue the RFRA case before the high court this year.

Equally controversial, however, was the manner in which this landmark case was decided. The court never argued the issues in Smith. No briefs were submitted. Moreover, the State of Oregon never asked the court to review religious-exercise freedoms. So sweeping was the ruling that the winning party - the attorney general of Oregon - apologized publicly for the Supreme Court decision, saying it went too far.

"I remember that ruling like it was yesterday," says Mark Pelavin of the Religious Action Center for Reformed Judaism. "It was a total shock. We expected the court to forbid peyote; this was the height of the drug war. But no one expected a sweeping 'bright line' ruling that took on the First Amendment."

But within days of the Smith ruling, 55 leading constitutional scholars and 20 individuals representing organizations as diverse as the National Association of Evangelicals and People for the American Way swung into action. They petitioned the court to rehear the Smith case, allowing their views to be heard, including new scholarly work showing that the framers considered free exercise of religion to be a right, not simply a protection.

The court refused to rehear Smith. But the petition spawned the creation of a coalition of faiths and civil liberty groups. The coalition (including the Christian Science Church, which publishes this newspaper) spent two years drafting legislation that became the Religious Freedom Restoration Act. Under RFRA, which restores the standard that the Smith case removed, a party does not have a guarantee to religious accommodation - just a guarantee that an accommodation must be considered.

The RFRA case taken by the Supreme Court last week, however, will not get into free-exercise issues. Rather, it will ask whether, under the equal protection clause of the 14th Amendment, Congress has the power to protect religious liberty - or whether this is something only courts can do.

Attorneys for Boerne argue that the place for free-exercise protection is state legislatures, not the US government. Moreover, they argue that Congress has been usurping too many of the high court's powers.

Yet RFRA supporters point out that Scalia, in the Smith decision, said the proper place to protect religious rights is at the legislative level.

RFRA lawyers feel cautious optimism. If the Supreme Court strikes down RFRA it would have to strike down other venerable laws founded on the equal-protection clause, dealing with voting rights, violence against women, and disabled rights.