Report Calls Federal Courts Lax In Protecting Religious Freedom

Scholars say judges have improved, but performance is `disturbing'

FEDERAL courts are not scrupulous about protecting religious freedom. That's the consensus of 21 leading law professors on constitutional religious liberty.

Their perceptions were published yesterday in an American Jewish Congress ``Report Card on Religious Freedom.'' In at least three areas, religious freedom is ``threatened,'' scholars found.

Although marks are slightly higher than last year's, project director Sylvia Neil calls the grades ``disturbing. The responses to our survey show that legal scholars across the country are still very concerned that our religious liberty may be in jeopardy.''

The First Amendment says government should not establish (promote) religion nor prohibit its free exercise. But, scholars say, federal courts are not protecting core values embodied in the establishment or free-exercise clauses. ``The Supreme Court is not enforcing either clause,'' says Douglas Laycock, a University of Texas Law School professor who took part in the survey.

Scholars generally agreed that federal courts do protect people from ``explicit government discrimination ... due to their religious beliefs.'' This confidence, some say, was strengthened by the Supreme Court's decision last year to allow animal sacrifice in a religious sect's ceremonies.

But federal courts are not vigilant in defending religious practices from ``indirect government burdens or restrictions.'' Many scholars are troubled by the high court's 1990 ``peyote case'' ruling (Indians who used peyote in worship were subject to Oregon's anti-drugs laws), in which justices refused to grant religious exemption from neutral laws of general application.

In areas relating to the establishment clause, scholars gave courts low marks for maintaining a separation between church and state. Although a ``crude device,'' says Geoffrey Stone, University of Chicago Law School dean and a project adviser, the report card ``pretty accurately reflects the fact that we have less than enthusiastic judicial protection of religious rights.''

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