Ripping down RFRA

Many Christian activists either overtly or quietly supported the nominations of Antonin Scalia, Anthony Kennedy, and Clarence Thomas to the Supreme Court. Some, in the wake of a major religious-liberty case, now find themselves in an unlikely battle with those justices.

In a 6-3 vote late last month, in which Mr. Kennedy wrote for the majority, the high court ruled that Congress had overstepped its authority by passing the Religious Freedom Restoration Act (RFRA). That was Congress' response to the Supreme Court's decision in a religious free-exercise case, Oregon vs. Smith, where the majority opinion was written by Mr. Scalia. The ruling invalidating RFRA brought angry reaction.

"This is the worst religious-liberty decision in the last 50 years," said Richard Land, president of the Southern Baptist Convention's Ethics and Religious Liberty Commission. "The Smith decision was disastrous. The Congress of the United States rectified that terrible mistake by the court. The court's reaction was to survey the situation and having painted the American people into a religious liberty corner with Smith, they promptly applied a second coat of paint in striking down RFRA."

Thomas Jipping, a lawyer who was prominently involved in the confirmation battle in support of Justice Thomas and other Reagan-Bush-era appointees, blamed the outcome on "a political power struggle" between the Supreme Court and Congress. "Half of what you saw in this ruling was pride," Mr. Jipping said. "Usually the Supreme Court takes more than seven years to admit it was wrong." The court handed down the Smith decision in 1990.

In Smith, the justices ruled that members of the Native American Church were not unfairly singled out by state law that prohibited the use of peyote. The plaintiffs in that case had been denied unemployment benefits after they were fired from state jobs for ingesting the cactus as part of their religious practice.

Fearing that the rights to practice religion unhindered by government were at stake, Congress passed RFRA, with support from conservative and liberal groups. The case that delivered RFRA to the Supreme Court was the City of Boerne vs. Flores, Archbishop of San Antonio (see WORLD, Jan. 11, 1997). In that case, a small Catholic church in the Texas town of Boerne wanted to enlarge its building. But the city, claiming the 1923 replica of a mission-style church was in a historic district, refused to grant the church a building permit. The Archbishop then sued, alleging the city was discriminating against the church under RFRA. A lower court ruled that Congress had overstepped its bounds in passing RFRA and that the law was unconstitutional. The Fifth Circuit reversed that decision, and the case went to Washington, where RFRA was struck down.

In the majority opinion, Justice Kennedy wrote that unlike the Voting Rights Act, which was designed to remedy specific discrimination, RFRA doesn't target a specific religious bigotry. It is more a scattershot effort "so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to, prevent unconstitutional behavior. It appears, instead, to attempt a substantive change in constitutional protections.... [RFRA's] sweeping coverage ensures its intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter.... Any law is subject to challenge at any time by any individual who alleges a substantial burden on his or her free exercise of religion."

In his concurring opinion, Justice John Paul Stevens wrote: "If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an enlargement of the structure. Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law."

In writing her dissent, Justice Sandra Day O'Connor returned to her arguments against the Court's ruling in Smith. The court cannot fairly examine RFRA, she wrote, because it was prompted by the court's wrong ruling in Smith. She urged her colleagues to re-examine that decision.

Short of an unlikely change of mind by the Supreme Court, the next step for Congress is either a more carefully worded bill to replace RFRA, or an amendment to the constitution to shore up the First and Fourteenth Amendments. Further attempts at legislative remedies most likely will meet the same fate as RFRA, Mr. Land says. Lawmakers inclined to make another legislative run at preserving religious freedoms "need to go back and read Kennedy's decision, and they need to listen to the oral arguments," Land says. "The majority of the court was hostile to the government and to those who were arguing for RFRA. This court is not going to accept a legislative remedy. So there are only two options: a constitutional amendment that deals with free exercise; the second, which would be much more confrontational, would be to seek to apply the clauses of the Constitution that allow the Congress to limit the jurisdiction of the Supreme Court."

Mr. Jipping is ready for option two: "If our first liberties are not worth confrontation, nothing is.... Congress ought to strip the court of jurisdiction and reinstate RFRA."

Jim Cox of the Rutherford Institute, Don Hodel (new president of the Christian Coalition), Cathy Cleaver of the Family Research Council, and Greg Baylor of the Christian Legal Society were among those in the chorus of denunciation. "We were somewhat surprised by it, although the tenor of the oral argument was such that it wasn't a complete surprise," says Mr. Baylor, assistant director of the Christian Legal Society. "More justices were telegraphing the punch than I anticipated, expressing some pretty serious reservations about the scope of Congressional power. Many of them did seem to be unsympathetic to the archbishop's argument."

In the world of our Founding Fathers, the First Amendment would be a sufficient protection against the establishment of a governmental religion, with the further protection of the free exercise clause of the Fourteenth Amendment. But in the 1997 world of judicial activism at all levels, judges are reinterpreting those protections. "The problem," Mr. Baylor says, "is the court really is for the most part the final arbiter for what the Constitution means. We think that the court got it wrong in the Smith case, that they just interpreted the free-exercise clause in a way that was inconsistent with history and was inconsistent with the long-standing precedent that the court rejected in that case. But you've got to live with that. What do you do now?"

While discouraged about the decision, he says, he is encouraged by congressional reaction and support from President Clinton. "The willingness of prominent members of Congress to stand up on the steps of the Capitol within hours after the decision came down says something, says these senators and representatives are concerned about religious liberty in America.

"The fact that you have diverse groups rallying around RFRA after the Smith decision and diverse groups rallying around some response to the Flores case ... is an indication of how bad a thing the Supreme Court has done, an indication of the grievousness of the error they've made."