|| Court ponders broad religious freedom
By DAVID W. KINKOPF
Could your city government prohibit your parish from expanding its church building or its social outreach programs based on zoning or historic preservation laws? Could your county government criminalize the consumption of alcohol and thereby prohibit the use of wine at a Catholic Mass? The Supreme Court is poised to decide these questions and the course of religious freedom in this country.
On Feb. 19, the Court heard arguments in City of Boerne v. Flores after the city told a Catholic parish it could not expand its existing church building to accommodate an increase in church attendance because part of the church's facade was located in the city's "historic district." The parish and its archbishop sued, relying on a sweeping 1993 law, the Religious Freedom Restoration Act. By enacting RFRA, Congress prohibited any level of federal, state or local government from substantially burdening the exercise of religion without a compelling interest.
The city countered that Congress violated the Constitution by enacting such a broad statute. If the city is correct and RFRA is unconstitutional, religious individuals and organizations will be left with little recourse in challenging general laws that may indirectly burden or even flatly prohibit religious activities. Thus, the Supreme Court's decision, expected at any time, will dictate the fate of religious freedom disputes, including the religious rights of children in public schools, the religious rights of prisoners and religious discrimination against homosexuals.
RFRA was the result of lobbying by an unprecedented alliance of religious groups, including the United States Catholic Conference, the American Civil Liberties Union, the Baptist Joint Committee, the Anti-Defamation League and Americans United for Separation of Church and State.
These groups were outraged by a 1990 decision, Employment Division v. Smith, involving the use of the hallucinogenic drug peyote in a Native American religious ceremony. In the Smith decision, the Supreme Court ruled that Oregon's general criminal law against the possession of peyote did not violate the First Amendment's protection of religious freedom even though the law criminalized religious conduct.
The split decision in Smith, authored by Justice Antonin Scalia, fundamentally altered the manner in which the courts looked at religious freedom claims. Prior to Smith, courts required governments to make exceptions to laws that burdened religious exercise, unless the government had a compelling reason in not granting a religious exemption. After Smith, courts no longer demanded a compelling reason before allowing the government to prohibit religious conduct indirectly.
As long as the government did not single out religious use specifically, it could prohibit actions regardless of the effect on an individual's religiously motivated conduct. Thus, under the Court's view of the First Amendment, a neutral and generally applicable criminal law that prohibited the consumption of alcohol could be enforced against a Catholic priest and the communicants who drank wine during the Eucharist.
Justice Scalia disappointed those who hoped he would find broad constitutional protection for religious conduct because of his conservative philosophy and his strong, publicly expressed Catholic faith. Scalia's consistent belief in a very limited role for the U.S. Constitution won the day at the expense of religious freedom. In Scalia's view, a legislature can choose to exempt religious uses from a particular criminal prohibition, but government is not required to do so by the Constitution.
The Smith decision angered many who believe that people of faith, particularly members of minority religions without political clout, require broad protection from government regulations that burden or prohibit religious conduct. A nearly unanimous Congress passed the Religious Freedom Restoration Act as an attempt to "restore," by means of a statute, the pre-Smith constitutional standard that gave broad protection to religious freedom. The question for the Supreme Court is whether Congress can, in effect, overrule the Smith decision through a new religious freedom statute.
Impact of RFRA
With RFRA in their attorneys' arsenal, religious organizations and individuals relied on the new law to seek exemptions from a variety of government regulations. In addition to challenges to land use regulations such as in Boerne, landlords with religious objections to renting to homosexual or unmarried couples relied on RFRA to refuse to rent to such couples when they were required to do so by local antidiscrimination statutes.
Also seeking exemptions under RFRA were religious employers who fired individuals based on religious belief, and public school children whose religion required the wearing of ceremonial knives in violation of school rules. However, by far the most common lawsuits under RFRA have been filed by prisoners, who have sought access to religious items ranging from the extravagant (saunas) and the offensive (swastikas) to seemingly unobjectionable items more familiar to Catholics (rosaries and scapulars). Other prisoners wanted to exercise claimed religious rights to refuse medical treatment or pray aloud in a foreign language.
Most courts simply assumed RFRA was constitutional. Some claims have been denied because the courts questioned the sincerity of the claim or found the asserted religious exemption to be based on an "optional" religious belief of the claimant. However, some RFRA claims have been successful and led, for example, to the opening of church soup kitchens where this would have been prohibited under local zoning laws.
However, RFRA's potential downfall is inherent in its sweeping scope.
Local governments forced by RFRA to accommodate religious practices soon challenged the constitutionality of RFRA. The main arguments are: 1) a judicial power argument that Congress cannot effectively overrule the Supreme Court's Smith decision; 2) a federalism or "states' rights" argument that the federal government cannot order state and local governments to follow the federal government's laws in matters of local concern (for example, in the operation of schools and prisons); and 3) a "separation of church and state" argument that RFRA in effect favors religious practices (for example, permitting a religious soup kitchen where a secular soup kitchen would be banned).
Most courts that have addressed the constitutionality of RFRA have upheld the law, and the Supreme Court surprised many observers by deciding to hear the Boerne case. The Court also surprised many observers with its skeptical questioning of those who argued in favor of RFRA's constitutionality. Every argument against RFRA seemed to have a champion on the high court.
Justice Scalia stated his belief that Congress may have overstepped its authority in the area of civil rights legislation by passing RFRA. Justice Sandra Day O'Connor expressed concern over the flood of prisoner lawsuits against state governments. Justice Anthony Kennedy was troubled that the law might benefit religions over other groups in our society.
The justices also took their concerns beyond the narrow controversy over religious freedom and addressed broader issues involving the power of Congress to enact civil rights legislation that imposes on states' rights to regulate areas such as prison management, zoning and criminal laws. The questions suggested the Court may use the Boerne case to limit Congress' general civil rights powers, a ruling that would impact legislation beyond RFRA, such as the Voting Rights Act.
Speculating on the outcome of Supreme Court decisions is a pastime of many lawyers, but guesses are particularly difficult in the Boerne case. Each justice is likely to have conflicting views on the constitutionality of RFRA, conflicts reflected in the strange alignment of groups that have weighed in on the issue.
Many "conservatives" applaud RFRA as a way to protect traditional religious values, and many "liberals" support the measure as a broad civil rights statute designed in part to protect the religious expression of minority groups without strong political influence, such as Native Americans and prisoners.
On the other hand, some conservatives and liberals have strongly opposed RFRA. Some "tough-on-crime" conservatives bristle at the use of RFRA by prisoners to wrest concessions from prison officials. Some liberal commentators condemn RFRA as a government-imposed endorsement of religion in violation of the Establishment Clause's "separation of church and state."
With the conflicting constitutional and practical considerations involved, the safest prediction about the eventual decision is that it will not be unanimous.
Whom to trust?
In the final analysis, the case may turn on a judgment about who should be entrusted with protecting religious freedom. With its decision in Smith, the Supreme Court tried to extricate the courts from deciding most issues in religious freedom claims and sent the matter back to federal and state legislatures.
Through the nationwide standard embodied in RFRA, Congress expressed its distrust of ad hoc protection by local governments and has attempted to place the responsibility back with the courts to safeguard religious rights just as it has done with voting rights, employment discrimination and other civil rights statutes. In Boerne, the Supreme Court must decide whether it is willing to accept this responsibility.
David W. Kinkopf, an attorney with Gallagher, Evelius & Jones in Baltimore, recently represented the Baltimore archdiocese in Cardinal Keeler v. City of Cumberland, its successful First Amendment challenge to Maryland's history district regulations.
National Catholic Reporter, June 6, 1997