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Ruling revives religious freedom effort

Special to the National Catholic Reporter

A severe and unprecedented restriction on religious freedom will result from the June 25 U.S. Supreme Court decision declaring unconstitutional the Religious Freedom Restoration Act of 1993.

The ruling, decided 6-3, came in the case of the City of Boerne v.Flores, referring to Archbishop Patrick F. Flores, the Catholic Archbishop of San Antonio, Texas.

The six Supreme Court justices who invalidated the act -- known as RFRA (pronounced Rifrah) -- set aside the votes of almost every member of the U.S. Senate and House of Representatives and the approval of President Clinton in 1993.

Their principal motivation appears to be the idea that RFRA may have attempted to set aside the Supreme Court's 5-4 decision in Smith v.Employment Division (1990), which said for the first time in U.S. history that all religious persons who are adversely affected by a neutral law of general application have no remedy against that law under the First Amendment.

In the case of Smith, the court held that the general law prohibiting use of the drug peyote overrode Native Americans' right to use the substance in traditional religious ceremonies.

In reaction to that harsh ruling a coalition embracing almost every religious group in the nation -- including the U.S. Catholic Conference -- came together to enact RFRA. This law means that any person whose religious freedom is narrowed by a law has a right to require that the lawmaker demonstrate a compelling interest that justifies an infringement on religious freedom. It also requires that any burden imposed upon religious practice by the state be the least restrictive of possible alternatives.

RFRA has prompted 300 cases -- 50 percent of them by prisoners. Some of the suits have been frivolous, which is why some 15 states asked the Supreme Court to nullify RFRA. But an astonishing cross section of religious and civic bodies filed briefs on behalf of the act.

The House and Senate based their action on Section 5 of the 14th Amendment, which confers on Congress the right to enact legislation to enforce the rights guaranteed by that amendment. Laws enacted by Congress pursuant to this power now include virtually all of the privileges granted in the first 10 amendments.

The Supreme Court asserted -- without any proof -- that Section 5 conferred the power to enact remedial but not substantive rights. That claim is novel and unwarranted. Congress has enacted a wide variety of laws to guarantee the right to vote, the right not to be discriminated against in employment, education and housing and the right to privacy -- none of which has been struck down by the high court.

The remedy granted to Congress in 1868 with the 14th Amendment has worked. At least until the topic was a strengthening of the free exercise guaranteed in the First Amendment, which was adopted in 1791.

The majority of the court clearly felt that their authority and their unique role was usurped by RFRA. Justice Antonin Scalia, the author of the majority opinion in Smith v. Employment Division, was no doubt influential in getting five other votes to protect his opinion, which in the three years before RFRA was enacted had been the precedent used by several judges to deny or restrict the free exercise of religion.

Justice Sandra Day O'Connor, dissenting in the case, which involves a city's refusal to allow expansion of a church in Boerne, Texas, expressed her outrage at the majority view as well as her deep conviction that Smith was wrongly decided.

The 50 plus religious and civil liberties groups that initiated RFRA and worked for its enactment came together in consternation in Washington to consider the options left after the devastating ruling of June 25. The coalition is still amazing--the American Civil Liberties Union, most Jewish groups, the Christian Coalition and the Catholic Bishops. The dominant intuition of this group is not to attempt a constitutional amendment but to work for the reversal of Smith. One tool to use might be Federal Rule 60(b), which was successfully applied to reverse a 1985 ruling that forbade federally funded teachers from giving remedial instruction on the premises of church-related schools. That welcome decision came down from the high court on June 23.

There are other options for the advocates of the revised RFRA. But no clear or obvious path is in sight.

The defenders of unpopular religious groups are convincedtheir legal and constitutional weapons have been destroyed. The law now reverts to the frightening 1990 ruling in Smith, which said, in effect, that any person or group whose religious freedom is hampered by a law of general applicability not designed to inhibit religion has only one remedy -- to go to the legislature.

That this avenue is futile for small and unknown religious sects was of no consequence to the Supreme Court in Smith or in Flores. Justice Anthony Kennedy, author of the majority opinion in Flores, minimized discrimination against religion as involving only "incidental burdens."

American history demonstrates that the preservation of religious freedom has been a precious value at every age of this nation's history. The thirteen colonies would not ratify the Constitution without a Bill of Rights, the first of which protects against the establishment of state religion and guarantees the free exercise of religion. The Supreme Court has vindicated religious freedom for Amish, Jehovah's Witnesses, Sabbatarians and other non-mainstream groups.

Esteem for religious freedom, downgraded in Smith v. Employment Division, was spectacularly demonstrated in the outpouring of support for RFRA from almost all religious groups. The only consolation after the Supreme Court's recent destruction of the act is the stalwart determination of religious and civil liberties groups in America to preserve and enhance the free exercise of religion.

A legal and constitutional way to guarantee that goal has to be discovered once again. The road may be long and winding, but the American people cherish religious freedom so passionately that even a major mistake by the United States' Supreme Court cannot in the long run obscure, inhibit nor deter it.

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

National Catholic Reporter, July 18, 1997