By ROBERT F. DRINAN
Special to the National Catholic Reporter

In 1993 the San Antonio archdiocese decided that it should enlarge St. Peter's Church in the city of Boerne to accommodate the gathering of up to 1,000 worshipers who come to the shrine every Sunday. But local officials denied the necessary permissions, asserting that the church of St. Peter was listed as a historic place and could not be altered.

Archbishop Patrick Flores sued the authorities, claiming that the Religious Freedom Restoration Act of 1993 gave church officials the right to a hearing in which the government would be required to demonstrate that it had a compelling reason to keep the church at its present size.

The judge denied the request of the archdiocese and in addition declared the Religious Freedom Restoration Act unconstitutional. The Fifth Circuit Court of Appeals in New Orleans reversed that judgment, stating that the Religious Freedom Restoration Act is indeed constitutional.

On Oct. 15 the United States Supreme Court announced that it will review City of Boerne v. Flores. The stage is thus set for a historic ruling on the dimensions of religious freedom in America. Oral arguments will be early in the new year. A decision will be forthcoming no later than June 1997.

And dozens like it

The background of the Flores case -- and dozens like it -- goes back to a decision of the United States Supreme Court in 1990 in which the Court rejected 5-4 a claim to the free exercise of religion made by two men in Oregon who had lost their jobs because of their sacramental use, as American Indians, of peyote. This decision, Smith v. Oregon, written by Justice Antonin Scalia, seemingly reversed or at least restricted several Supreme Court decisions beginning in 1963 that were generous in the exemption they gave to claims based on the free exercise of religion. Scalia affirmed that the Supreme Court could not grant an exemption to a law of general applicability even if that law unintentionally or inadvertently impacted adversely on religious freedom. Jurists and academics have been strong in their denunciations of the ruling in the Smith decision.

Within a short time, Congress proposed the Religious Freedom Restoration Act, which would ease the Smith ruling in cases where the claimant asserts a violation of the free exercise of religion guaranteed by the First Amendment. The congressional test would reinstate the rule employed by the Supreme Court from 1963 to 1990. That rule would require the government in any case challenging a restriction under religious freedom to prove that a compelling interest of the government justifies or requires such a rule and that, if such a need is proven, the limitation on religious freedom is the least restrictive.

An amazing coalition of some 60 religious and civil liberties groups endorsed the Religious Freedom Restoration Act. Mainline Protestant groups, the Christian Coalition and the American Civil Liberties Union formed a coalition unprecedented in U.S. history. The U.S. Catholic Conference endorsed the Religious Freedom Restoration Act after being assured that it could not be utilized to broaden the law on abortion.

The House of Representatives passed the Religious Freedom Restoration Act unanimously on a voice vote. It was passed by the Senate by a vote of 97 to 2. It was signed by President Clinton Nov. 16, 1993.

Plaintiffs have relied in whole or in part on the Religious Freedom Restoration Act in some 200 cases -- half of which involve prisoners, many of them Muslim, who sought to broaden what they claim to be their right to religious freedom.

Oceans of literature

The number of victories under the Religious Freedom Restoration Act is limited. But in its three years of existence it has generated oceans of literature by academics, litigants and civil libertarians. Some academics have been unfriendly, even hostile, to the act because, they argue, it impermissibly reverses a Supreme Court decision based on an interpretation of the Constitution.

A few courts have declared it unconstitutional on this basis.

One of the most troublesome issues involved in litigation under the Religious Freedom Restoration Act relates to landlords who assert that they cannot in conscience rent their housing units to couples who are living together even though they are not married. This claim can collide with fair housing statutes. The California Supreme Court 4-3 turned down the claim of a woman, an Evangelical Christian, who refused to rent any of her four units to heterosexual unmarried couples. The Religious Freedom Restoration Act did not prevail.

The aspirations behind the Religious Freedom Restoration Act were and are admirable. Americans take pride in the enlargement of religious freedom given by the Supreme Court to Jehovah's Witnesses, Amish children, Seventh Day Adventists and other minority religious groups.

The Supreme Court in the Smith decision in 1990 seemed to curtail if not extinguish the constitutional principles that allowed exceptions to the law in these cases. Congress reacted strongly. It made clear in the Religious Freedom Restoration Act that the new law said nothing about Supreme Court rulings related to the establishment clause. Consequently rulings related to prayer in public schools and restrictions on aid to church-related schools are untouched by the Religious Freedom Restoration Act.

As the practices of people of faith become more diverse in this country, the Supreme Court has struck down restrictions on these practices that were contained in laws of general applicability. The Supreme Court has done so by interpreting generously the clear mandate of the First Amendment that the government may not restrict the "free exercise" of religion. Even those who criticize the court for its alleged judicial activism on issues like abortion, obscenity and legislative reapportionment hardly ever claim that the court has been too "activist" on issues related to religious freedom.

Generous interpretation

The architects of the Religious Freedom Restoration Act will be watching the Supreme Court intensely as it dissects their unique creation. It will be easy to oversimplify the underlying issues in the Supreme Court case. Many will be tempted to claim that if the Supreme Court declares the Religious Freedom Restoration Act to be unconstitutional, it means the high Court is hostile to religion. If the Supreme Court, on the other hand, vindicates the constitutionality of the Religious Freedom Restoration Act, it may do so in such a splintered way that the full effectiveness of the act may be impaired.

Lawyers for the city of Boerne are playing hard ball. They claim that the Religious Freedom Restoration Act is a "vast, intrusive and rigid" law that infringes on local government and is a "bold and unprecedented example of federal social policy engineering." They add that the Religious Freedom Restoration Act "commandeers" the states to follow the mandate of the federal government. The word "commandeer" is taken from two recent Supreme Court decisions that struck down a federal law allegedly "commandeering" states to comply with a federal mandate.

Religious freedom has always been a precious value in American history. Courts have regularly sought to be tender and generous in yielding to persons who feel their conscience would be violated if they complied with certain laws. The court has a timely opportunity, in City of Boerne v. Flores, to spell out and guarantee the continuation of that practice.

Jesuit Fr. Robert Drinan is a professor at Georgetown University Law Center.

National Catholic Reporter, November 1, 1996

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