Supreme Court strikes down RFRA; peril seen in religious freedom

by Dwayne Hastings, posted Wednesday, June 25, 1997 (23 years ago)

WASHINGTON (BP)--In a ruling that may reach to the foundation of freedom for religious expression in the United States, the Supreme Court ruled unconstitutional the Religious Freedom Restoration Act June 25.

In a 6-3 decision, the majority ruled the law, which was signed into effect by President Clinton in November 1993, is a matter for the federal courts and states to consider and not the U.S. Congress.

"Our free exercise rights as American citizens are in peril," said Richard Land, president of the Southern Baptist Ethics and Religious Liberty Commission, in calling the decision "the worst religious liberty decision of the last 50 years."

"The real loser today was our First Freedom, religious liberty," agreed Steven T. McFarland, director of the Christian Legal Society's Center for Law and Religious Freedom in Washington. "Today's ruling threatens bedrock civil rights laws." McFarland called for quick legislative action "to restore the highest legal protection for our First Freedom."

The court's majority decision acknowledged Congress' right to legislate enforcement of a constitutional right to the free exercise of religion, yet it held Congress cannot make a substantive change to define what the right to free exercise means. The ruling also held RFRA violated the federal government's separation of powers.

RFRA was a legislative response to a 1990 Supreme Court opinion, Employment Division v. Smith, in which the justices ruled government no longer had to demonstrate a "compelling interest" before restricting religion. After the Smith decision and prior to RFRA's enactment, critics of Smith said it had become easier for the government to limit religious expression.

Prior to being struck down, RFRA required a government body to demonstrate a policy serves a "compelling interest" and is the "least restrictive means" in fulfilling the government's interest before restricting the free exercise of religion. The bill gained overwhelming bipartisan support in both houses of Congress.

Chief Justice William H. Rehnquist was joined by Justices Anthony M. Kennedy, Clarence Thomas, John Paul Stevens, Ruth Bader Ginsburg and Antonin Scalia in the majority. Justices Sandra Day O'Connor, David H. Souter and Stephen G. Breyer dissented in the landmark ruling.

In writing for the minority, O'Connor said, "The historical evidence casts doubt on the Court's current interpretation of the Free Exercise Clause. The record instead reveals that its drafters and ratifiers more likely viewed the Free Exercise Clause as a guarantee that government may not unnecessarily hinder believers from freely practicing their religion, a position consistent with our pre-Smith jurisprudence."

Land warned American citizens' free exercise rights are in peril. "The First Amendment's Free Exercise Clause is there to protect all people's religious liberty, particularly those in a minority or vulnerable position," Land said, adding, for example, the court's decision to strike RFRA "has diminished the free exercise religious rights of the 1.6 million Americans imprisoned in state and local prisons."

Since RFRA's enactment, some state and city governments have complained about the law's effect, often citing an extra burden caused by a variety of religious claims made by prisoners.

Jeffrey Sutton, the state solicitor of Ohio told reporters after the case's oral arguments Feb. 19 that RFRA has caused a "litigation nightmare when it comes to prisons. Since RFRA was enacted, we've got roughly 60 or 70 cases pending in Ohio. Not one of them has been resolved yet."

"This case is not about religious liberty; it is about federal power," said Marci Hamilton, arguing against RFRA before the justices, calling the law a "brazen attempt to reinterpret the free exercise clause."

The challenge to RFRA arrived at the high court in the case of City of Boerne v. Flores, a dispute involving the proposed expansion of the St. Peter Catholic Church building in Boerne, Texas. The city refused a permit for such work, citing the building's location in a historic district and the building's distinctive architecture.

A federal judge ruled in the city's favor, but the Fifth District Court of Appeals upheld RFRA.

The Rutherford Institute said the Supreme Court decision against RFRA "bulldozed the last barrier of protection for religious Americans." Rita Woltz, legal coordinator for the international civil liberties organization, said, "The original intent of the Constitution and its framers has been almost completely obscured by this decision. We are now on the verge of true religious apartheid in this country."

After the Supreme Court arguments in the case in February, Doug Laycock, the attorney for the Catholic diocese and a law professor at the University of Texas, warned a rejection of RFRA by the Supreme Court would mean for the average person "that every religious liberty claim becomes vastly more complicated to litigate. You have to examine everything the city has done in all sorts of comparable situations to try to prove discrimination. It would be more expensive for everybody. It would be harder to win."

RFRA supporters insist the law is necessary to secure Americans' free exercise of religion, with an Associated Press report noting several recent legal victories attributable to the 1993 law:

-- A group of Jehovah's Witnesses were successful in litigation regarding the taking a loyalty oath to be employed with the state of California.

-- An Amish group in Wisconsin avoided fines for refusing to place bright orange safety triangles on their horse-drawn buggies.

Tommy Baer, international president of B'nai B'rith, said in a prepared statement June 25, "We urge Congress to rewrite this legislation to meet the concerns of the Supreme Court while also guaranteeing Americans the right to carry out their religion in a free and unfettered manner. As a minority religious group and as an organization concerned with human rights, we believe that the free exercise of religion for all Americans must be protected."

Remedies to the court's decision vary little. The decision was clear proof the "government (needs) further instructions on how we should be governed," said ERLC's Land, calling for an amendment to the Constitution. The Rutherford Institute's Woltz said Americans will have to turn to their state legislatures or lobby Congress for a Constitutional amendment.

The Southern Baptist Ethics and Religious Liberty Commission joined onto the brief filed by a broad coalition of groups defending RFRA. In addition to the ERLC, other organizations in the 60-member coalition include the Baptist Joint Committee on Public Affairs, National Association of Evangelicals, the ACLU, the American Jewish Congress and the Christian Legal Society.

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