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.

1 | 2

Next