THREE years after the Supreme Court struck a blow to the freedom of religious practice, Congress is set to restore that right to its previous level of protection.
The legislation, called the Religious Freedom Restoration Act, would require that the government have a "compelling interest" when restricting religious practices, such as the wearing of a particular garb or the rejection of some or all medical procedures.
Government limits on the free exercise of religion would also have to be carried out in the least-burdensome way possible, under the new law. (Massachusetts child-abuse bill, Page 3.)
The "compelling interest" standard had applied from 1963 to 1990, when the Supreme Court rejected two native American men's religiously motivated use of peyote, an illegal hallucinogen. That ruling, Employment Division v. Smith, has subsequently been cited in some 50 lower-court decisions limiting various religious practices.
The House of Representatives passed the bill unanimously May 11. The Senate Judiciary Committee approved it May 6, and the full Senate is expected to take it up late this month or in early June. President Clinton has promised to sign the bill.
"The Supreme Court's decision three years ago transformed a most-hallowed liberty into a mundane concept with little more status than a fishing license, thus subjecting religious freedom to the whims of government officials," said Rep. Jack Brooks (D) of Texas, chairman of the House Judiciary Committee, on the House floor May 11.
Supporters of the bill maintain that it will not require courts to allow behavior deemed to be against the interests of public safety. For example, it would not have provided legal cover for cult leader David Koresh, who allegedly stockpiled illegal weapons and had sexual relations with underage girls.
But it might have produced different outcomes in some cases since the Smith ruling or deterred some prosecutions altogether. In one case, a Michigan judge ruled that a Jewish woman's rights were not violated when the state medical examiner ordered an autopsy - not permitted in some cases under Jewish law - on her son, who had been killed in a car crash.
In another case, the United States Supreme Court vacated a ruling by the Minnesota Supreme Court allowing the Amish to refuse to display orange traffic-safety emblems on their buggies. (Subsequently, the Minnesota court ruled again in favor of the Amish.)
Regarding the practice of Christian Science, which relies on spiritual healing over medical treatment, the law could afford some protection. State laws that would require Christian Science parents to take children to physicians may be difficult to enforce in cases in which a child does not have a serious illness, because the state would not have a "compelling interest" in intervening, says Robert Peck of the American Civil Liberties Union. Government intervention
"It's likely that parents would not be convicted in such cases," Mr. Peck says. However, he adds, in cases in which a child has died, the government could easily prove a compelling interest in intervening.
Christian Science church officials are hopeful that the law will have a deterrent effect in discouraging state intervention against the practice of the religion. The law could help "reverse a dangerous trend in our society of skepticism toward religion and the practice of religion," says Phil Davis, the church's federal representative.
Though the law enjoys wide support in Congress, it has taken the three years since the Smith decision to get it through. The biggest sticking point was the abortion issue, and it was the Roman Catholic Church that pressed it. "The church was concerned the law provided a loophole that could have allowed for abortions," says Deacon Chris Baumann, Catholic Conference spokesman.
In other words, the church wanted to make sure that a woman seeking an abortion could not use the law to argue that religious beliefs should allow her to end her pregnancy. This point was more relevant before the Supreme Court's reaffirmation last year of Roe v. Wade, which guarantees a woman's right to abortion. President Clinton's opportunity to replace an anti-abortion Supreme Court justice with one who favors abortion rights makes the church's concern even less relevant.
The church dropped its objection when the House Judiciary Committee inserted language in its report stating that the bill does not allow for abortion as a "free exercise" of religious belief.
Supporters of the bill suspect that the legislation languished under President Bush because he was caught between the Catholics who opposed it and the evangelicals who supported it.
Another issue that has held up the legislation is concern that religious-freedom claims could cause problems for prison officials seeking to maintain order and discipline. Those raising this concern want to ensure that the law does not make it more difficult for prisons to reject frivolous or insincere requests by prisoners. Some famous cases include prisoners who claimed that they must be served Chateaubriand every Friday or students who claimed that their "Church of the Green Frog" membership should ex empt them from the draft. Bill called burdensome
Sen. Alan Simpson (R) of Wyoming was the sole opponent of the bill when the Senate Judiciary Committee approved it last week. "I feel I want to respond to the concerns of half of the attorneys general in the country," he says.
In a letter to members of Congress, 25 state attorneys general expressed concern that the religious-freedom bill would unduly burden prison administrators; they called for an amendment allowing them greater leeway in rejecting prisoner demands for religious practice.
In a May 5 letter to Sen. Joseph Biden (D) of Delaware, chairman of the Senate Judiciary Committee, US Attorney General Janet Reno wrote that she believed an amendment was unnecessary, citing a 1987 Supreme Court case that held that a prison regulation impinging on religious exercise was "valid if it reasonably related to legitimate penological interests."
Proponents of the bill worry that an amendment could kill the legislation, since it would open floodgates to demands by other groups. "The Religious Freedom Restoration Act does not ensure the automatic right" of people to do whatever they want in the name of religious freedom, says J. Brent Walker, associate general counsel to the Baptist Joint Committee, which led nearly 60 groups in a Coalition for the Free Exercise of Religion to support the bill.