Court Tests Limits Of Religious Liberty

Can Congress pass laws to protect practices?

The US Supreme Court hears a landmark case tomorrow that will help define the limit of religious liberty in the United States. Church groups say the outcome will affect nearly every person of faith in the US.

While the case began as a narrow zoning dispute between a church and a tiny town in Texas, it now pivots on the fundamental question of how far government can go in protecting religious practice.

Specifically, the case will determine whether Congress had the constitutional right to pass a law protecting the free exercise of religion. The 1993 law, called the Religious Freedom Restoration Act, ensured a measure of legal accommodation for the practice of one's faith, in accord with conscience and the teachings of a religious tradition.

RFRA, as it is known, passed the House unanimously and the Senate by a 97 to 3 margin, mainly due to an unprecedented coalition of religious groups ranging from evangelicals to Jews to Muslims. The coalition came together after a 1990 Supreme Court ruling, known as the "Smith" or "peyote" decision, that significantly reduced the legal protections for religious exercise, particularly for minority faiths. If the court now strikes down RFRA - a ruling is expected by June - the right to challenge laws restricting religious practice will be largely curtailed.

"This is the most important religion case ever to come before the Supreme Court," says Oliver Thomas, an attorney for the National Council of Churches. "This is more important than the Jehovah's Witness cases of the '30s and '40s, more important than the school prayer decision. It affects all religious persons."

Yet while the status of religious liberty may be profoundly influenced by this case, arguments tomorrow will not likely touch much on basic First Amendment questions like the separation of church and state.

Rather, as legal briefs and opinions began swirling last fall when the high court agreed to hear the case, Boerne v. Flores, it became clear the main battle was over whether Congress exceeded its power under the equal protection clause of the 14th Amendment in passing RFRA. More specifically, whether Congress can use Section 5 - the enforcement mechanism of the equal protection clause - to force states and localities to accommodate religious practice. Notable Section 5 precedents include the Voting Rights Act and Title VII of the employment discrimination act.

The case arose out of a dispute in Boerne, Texas, a San Antonio suburb of 5,400. During the early 1990s, St. Peter's Roman Catholic Church began to attract worshippers far past its 230 seat capacity. Some 3,000 were attending on Sundays.

Church leaders petitioned city officials to rebuild the church to accommodate the overflow. The town said no, citing preservation zoning that included the front of the structure. (The church, built in 1923, is not actually a historic site, but is considered an example of imitation Spanish Mission architecture.)

The church came back to city officials with a plan to keep the Spanish front of the building, but expand the sanctuary. The city again said no - and in the interim rezoned the area to include the entire church. So the local archbishop decided to file suit under the new RFRA law, which forbids the state from restricting religious practice without showing a "compelling interest."

But before the case could be decided, a federal judge declared RFRA itself unconstitutional. The Fifth US Court of Appeals reversed that ruling. Now it is before the Supreme Court - with the US government siding with the Catholic church.

Boerne attorneys will argue that RFRA represents a dangerous expansion of the power of Congress, allowing lawmakers end-run Supreme Court decisions. "This law implies a power that is potentially boundless for the federal government," says Boerne's lawyer Marci Hamilton of the Benjamin Cardozo Law School in New York. "I don't think we can lose this with the conservatives on the court."

"This case is about the power of the federal government to protect liberty in the states, laws forged after the Civil War," counters Douglas Laycock of the University of Texas Law School, who is arguing for St. Peter's. "The courts aren't going to take that away."

RFRA has been widely misinterpreted by both secular and religious groups as giving broad new powers to churches. It doesn't. Rather, it ensures that individuals and churches may have a day in court to make their claims. Under the 1990 Supreme Court ruling, and without RFRA laws, St. Peter's church, for example, would not be allowed to bring a case against the Boerne council.

In essence, the peyote decision, authored by Justice Antonin Scalia and since challenged by justices ranging from David Souter to Sandra Day O'Connor, shifted the burden of proof of religious discrimination from the state to the individual or church. Smith also openly favored majority religions and gave no more protections to religious exercise than any other group.

"Under Smith, a local church doesn't have any more rights than a McDonalds," as Oliver Thomas of NCC puts it.

Critics of RFRA point to the many frivolous lawsuits arising in state prisons by inmates claiming a wide variety of special religious protections - ranging from the Church of Marijuana to Indians demanding sweat lodges.

Advocates say that prisoners may make demands under RFRA, but the law is no guarantee that a court will accommodate any frivolous claim. They also say the law is being used to settle a lot of legitimate grievances, ranging from the right of a religious seminary to fire an employee for teaching incorrect doctrines to the right of various believers to wear religious garb.

Some RFRA critics, such as constitutional scholar Douglas Kmeic, attack the law for its potential for too much tolerance of minority religious practice. Citing English philosopher John Locke in the Chicago Sun Times, Dr. Kmeic, who holds a post at Notre Dame Law School, suggested society should not tolerate methods of prayer deemed to threaten "peace and good order."

By contrast, Dr. Laycock writes that what is at stake for religious minorities "is often the ability to obey their conscience, sometimes on issues they believe essential to salvation."

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