In a hearing packed with meaning for millions of religious Americans, US Supreme Court justices yesterday focused on whether Congress could pass a special law protecting the free exercise of religion - and seemed to give a tougher time to attorneys defending that law.
The case is likely to be a landmark no matter how it is decided. It arose out of a simple disagreement between the City of Boerne, Texas, and a local Roman Catholic church. The church was denied a permit to expand its overcrowded edifice, which was partly in a preservation zone.
But yesterday's argument rarely mentioned the specifics of the case. Rather, the justices honed in on whether Congress could pass the Religious Freedom Restoration Act, which was enacted to bypass a 1990 Supreme Court ruling restricting religious exercise.
Most of the discussion dealt with something called Section 5 of the 14th Amendment, which enables Congress to enforce legislation, in this case under the equal-protection clause.
Justices asked if the powers taken by Congress exceeded Section 5 as it has been enforced in venerable laws such as the Voting Rights Act.
"This is not about religious liberty, this is about federal powers," opened Marci Hamilton, lawyer for Boerne, who told justices the RFRA law was an "emotional and heated response" to the 1990 Supreme Court ruling. Ms. Hamilton argued that Congress expanded rights beyond what is appropriate in a case where no evidence of religious persecution was compiled.
Justice David Souter, in a prolonged back-and-forth with Hamilton, questioned whether Congress could not, in fact, protect rights, even if they had not yet been violated.
Attorney Douglas Laycock, arguing for the church, said that Section 5 represented an "unbroken" upholding of equal protection dating to the Civil War. Yet Dr. Laycock seemed to struggle from the start under close questioning by at least five justices.
"Do we have to address the concern of overturning [the 1990 ruling]?" asked Justice Sandra Day O'Connor.
Doesn't RFRA mean that "every law, every ordinance in government must be granted a religious preference?" asked Justice Anthony Kennedy.
"Doesn't zoning impose a burden on everyone?" asked Justice Antonin Scalia.
Chief Justice William Rehnquist wondered how many other areas Congress could begin to expand rights.
Laycock stuck to the argument that what makes RFRA different is its protection of rights already spelled out in the First Amendment regarding religious practice. Yet what underlies the Section 5 debate is the state of laws on free exercise - not just the right to speak and believe freely, but also to exercise one's faith in daily life.
Congress enacted RFRA in 1993 to reinstate a legal standard of protection for the practice of faith free of government interference.
Before the Supreme Court's 1990 decision in Smith v. Employment Division, the free exercise of religion could not be impeded unless the state showed it needed to do so to further a "compelling government interest." For example, if a religious practice was shown to endanger public safety or health, or were to rob other citizens of their rights, the state could intervene.
Before Smith, the government had to prove a need to restrict religious exercise, before passing any laws that did so.
After Smith, the state no longer had to prove a "compelling interest" in blocking free exercise of religion or the accommodation of religious practice. The Smith ruling shifted to churches and individuals the burden of proof that their religious freedom was being harmed. Under Smith, minority faiths that have unusual or different approaches could not plead for accommodation - unless they could show they had been specially targeted for discrimination in whatever law blocked the exercise of their faith.
What RFRA did, in short, is restore the former standard that requires the state to show a "compelling interest" before it can usurp the First Amendment right to free exercise of religion. If the high court rules that RFRA is unconstitutional, the law of the land regarding free exercise of religion would revert back to the standard established in the Smith case.