The battle of Boerne

from Boerne, Texas

This isn't the first time the central Texas town of Boerne (pronounced Bernie) has shown itself to be a little less than religiously tolerant. In the mid-19th century, this settlement of German-born Free Thinkers (followers of anarchist poet/teacher Ludwig Boerne) posted a sign at the town's border, the Cibolo Creek. "Ministers and Priests," it read, "Don't let sundown catch you in this town."

Emil Fleury, a young French priest recruited to brave Indians and Free Thinkers and start a mission in Boerne, wisely picked a spot on the opposite bank of the Cibolo.

The chapel he built still stands, as does the larger church built half a century later, but the Free Thinkers aren't gone. A new showdown between the church and city fathers is taking place not on Haupte Strasse (Main Street in nearly bilingual Boerne) but before the Supreme Court.

The congregation of St. Peter the Apostle Catholic Church wishes to expand the church, which now seats about 220 people; the church's membership list includes more than 1,000 families. But the congregation has clashed with the city's strict zoning regulations, which restrict changing the appearance of structures deemed historical. The right combination of issues and timing has made this the test case for the 1993 Religious Freedom Restoration Act.

Briefs are due to the high court later this month, and oral arguments are slated for March. By July, the Supreme Court should rule whether RFRA, supported by everyone from the Southern Baptist Convention to the ACLU, is constitutional. Another question-perhaps the greater question for Christians who are concerned about increased government jurisdiction over matters of faith-is whether RFRA is wise.

Here's the problem: Religious practice, the Supreme Court suddenly decided in 1990, should be treated like every other kind of activity. But prior to that decision (Employment Divison, Oregon Department of Human Resources v. Smith), the court had always held that religion must be treated more than equitably, that it should be given the broadest freedom possible. The court looked to the Free Exercise clause of the First Amendment, which was designed to exempt believers from civil laws when obedience would violate their beliefs. Unless the state had a "compelling interest" (the strictest legal test), then civil law must give way to religious belief. That's called the "Sherbert test," named for a 1963 case concerning a woman denied unemployment benefits because she wouldn't work on the Sabbath (she won back the benefits).

Rulings made under this principle include Walker v. First Orthodox Presbyterian Church (1980), in which a San Francisco church fired a church organist because he was a homosexual-he sued under the city's gay rights ordinances-and Smith v. Ricci (1982), which allowed students to be exempted from sex education classes that went against their religious beliefs.

The 1990 Smith case seemed relatively minor. Two drug counselors in Oregon, both Native Americans, regularly smoked the hallucinogenic drug peyote in religious ceremonies. The state said that was incompatible with the nature of their jobs. The Supreme Court went beyond merely agreeing and even revamped the test it uses. Now, according to Smith, the state need not show a "compelling interest." Instead, all it has to show is that a law is neutral toward religion. Only where the government singles out religion does it need to show "compelling interest."

To use Boerne as an example, the zoning laws concerning the city's historical district do not single out religion. Everyone who tries to build or improve structures within the district must meet with the approval of the zoning board and the Historical Landmark Commission. St. Peter's isn't the first group to be turned down. Therefore, the law is neutral, and St. Peter's must obey it like everyone else.

When the Smith ruling came down, religious groups, civil libertarians, and even members of Congress were outraged. "The implications of this ruling are staggering," said then-Rep. Stephen Solarz (D-N.Y.). "Minors may no longer be permitted to participate in religious rituals involving wine. Those religions that require special articles of clothing or strict standards of modesty could be penalized by workplace and schoolhouse dress codes. Even the practice of ritual circumcision could be outlawed if certain elements viewing it as unnecessary prevail upon state legislation to ban it."

Not everyone was angered, however. George Will wrote praising the "cool realism and secularism" of the founding fathers. "A central purpose of America's political arrangements is the subordination of religion to political order, meaning the primacy of democracy."

Mr. Will was historically wrong and decidedly out of touch with contemporary feelings as well. The Smith decision gave rise to RFRA, an attempt to give statutory protection to religious freedoms after the Supreme Court had taken away constitutional protection.

But it's not a perfect law, and one religious liberties group, The Rutherford Institute, was initially leery. "The Supreme Court has chosen to tamper with the delicate constitutional balance of the First Amendment," Rutherford founder John Whitehead wrote in 1993, as the law was being debated. "The present necessity is to attempt to restore that balance without creating mutations that could further erode the right to religious liberty. It is important to avoid hasty fixes to complex constitutional problems. If legislation is a solution, it is imperative that it be properly worded and narrowly tailored."

It wasn't.

As it passed through the Senate, RFRA picked up a small but significant qualifying phrase: "substantially burden." The state may not substantially burden a person's religious freedom without showing a compelling state interest. But what is the definition of a "substantial" burden? That's the rub.

One court-the California Supreme Court-has said that forcing a California woman, Evelyn Smith, to allow an unmarried couple to rent a home from her was not imposing a substantial burden, because she had the choice of getting out of the rental business.

Another problem with RFRA is that it's simply impolitic. Many judges see it as an example of Congress' stepping on the judiciary's toes. In 1995, a federal judge ruling on the Boerne case said he was "convinced of Congress' violation of the doctrine of separation of powers by intruding on the power and duty of the judiciary."

That's the issue the Supreme Court will decide.

And finally, RFRA has lost popularity because of the number of prison cases it has sparked. More than half of the nearly 300 RFRA rulings so far have been prison-related. Here are four examples:

**red_square** Two Native Americans in a Virginia prison have sued, contending that they need eagle feathers for their worship services.

**red_square** In a Wyoming prison, a group of "Luciferians" asked for and received permission to use the prison chapel for their services. Then, "in an apparent burst of religious enthusiasm, they burned Christian hymnals and Bibles," according to the state attorneys who defended the prison when it revoked the group's future access to the chapel.

**red_square** An inmate in Hawaii sued because prison officials forced him to cut his hair and denied him religious items, including peyote and a sweat lodge.

**red_square** And in Virginia, a death row inmate wanted to be baptized by immersion, rather than by sprinkling. Unlike the previous four examples, this inmate eventually won, with the help of the Rutherford Institute.

Boerne is a town that trades on its history, City Manager Ron Bowman says, and the church zoning fight is nothing personal. "The City Council is trying to preserve its heritage," says Mr. Bowman. "Our industry here is recreation and tourism. From the council's perspective, this isn't about religion."

But the battle has scarred the town. Case in point: Mr. Bowman and his family no longer attend St. Peter the Apostle Catholic Church, though they're still members. "I tried to keep a low profile," he admits, "But it just became too awkward."

The church's congregation has lost a few dozen families, acknowledges pastor Tony Cummins. And a group of still-active members has actually raised money to help the city with its legal bills. "There are families that aren't talking, friendships that have ended, and I know of marriages that have broken up over this," says Kit Danley, editor of the Hill Country Recorder, one of the two local newspapers.

A compromise was nearly reached in September; the church and the city shared the cost and hired an architect to design an addition to the church that would preserve its historic look. That look, by the way, is really the only thing about the building in question that is historic. The "mission-revival" building dates back only to 1929; the original 19th-century church building, the one constructed by Emil Fluery, sits off to the side, under huge oak trees.

The design the architect delivered would have preserved about 70 percent of the existing building-but the City Council rejected the compromise after members of the Historical Landmark Commission said they were "disappointed" the city would seek a compromise when it was on the brink of the Supreme Court decision.

Neither church nor city officials would say how much has been spent on this legal battle so far.