A stampede of state religious-freedom protection bills: What's going on?

At stake: How much can government restrict religious practices for the sake of public welfare?

By Jeremy Leaming
First Amendment Center

What's going on? Doesn't the First Amendment protect religious beliefs and practices from government interference already? It does, but many people contend it's not enough.

Government, they say, has figured out ways to encroach on religion in the 200 years since the Bill of Rights was adopted. In their view, laws, statutes and ordinances at every level of government are interfering with religious practices of all sorts — everything from what churches can build to what medical treatments devout parents can withhold to what religious artifacts prisoners can wear.

And when the U.S. Supreme Court declared unconstitutional the federal Religious Freedom Restoration Act of 1993 (RFRA), protectionists mobilized to pass RFRAs in as many states as possible. They seek to do at the state level what the high court said could not be done at the federal.

So far 23 states have RFRA bills pending, under consideration or in place.

The central question is this: When does religious practice interfere with government's ability to govern, to enforce the law, to regulate health and safety? Or, to look at it from the other angle, when does government action interfere with the free practice of religion?

Lawmakers such as Parker want to make it as difficult as possible for government to enforce laws against religious beliefs and practices —to force officials to prove that a religious act would indeed endanger public welfare.

Others say people cannot use religion as an excuse for illegal conduct —for violating laws that were made not to suppress religion but to protect society.

Two clauses
The religious freedoms Parker alludes to are embodied in the establishment clause and the free-exercise clause of the First Amendment, part of the Bill of Rights. Those two clauses state that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

James Madison, often referred to as the Father of the Bill of Rights, wrote that religion "must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as they may dictate."

Not only is Congress limited by the First Amendment, so are the states. Since the 1940s, the First Amendment values enshrined in the establishment and free-exercise clauses have been found by federal courts to be a fundamental part of the liberty protected by the Fourteenth Amendment. (That amendment prohibits states from abridging constitutional rights.)

So federal and state courts, which are constitutionally charged with the duty of determining when a person's religious freedom has been subverted by government laws or actions, have spent years analyzing situations in which the practice of religion has run up against all sorts of state and federal laws.

One such situation arose in Oregon involving the religious use of peyote, a hallucinogenic drug. Two Native Americans took the drug for sacramental purposes as part of a worship ceremony at their Native American church. As a result, they were fired from their jobs with a private drug-rehabilitation firm. When they applied for unemployment compensation, the state turned them down. They sued, saying they were exercising their right to practice their religion. The case went to the U.S. Supreme Court in 1990.

Justice Antonin Scalia, writing for the majority in Employment Div., v. Smith, noted that religious freedom guaranteed by the First Amendment has never been interpreted to mean "that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate."

The court thus let stand Oregon's denial of unemployment compensation to the Native Americans, finding that the state's interest in regulating the use of drug behavior did not infringe upon First Amendment religious-freedom guarantees.

An outraged coalition
A coalition born of religious and legal-academic outrage at the Smith decision arose in protest.

About 60 groups make up the RFRA coalition, known as the Coalition for the Free Exercise of Religion. Members range from the American Civil Liberties Union and People for the American Way to the Christian Legal Society and Pat Robertson's Christian Coalition.

A smattering of civil rights groups are members, but most of the organizations represented are religious. They include the American Baptist Churches, American Jewish Committee, American Jewish Congress, American Muslim Council, Church of Jesus Christ of Latter-day Saints, Church of Scientology, Episcopal Church, National Sikh Center, Peyote Way Church of God, and the Traditional Values Coalition.

Many faiths, many groups, all united in disgust at the Supreme Court's ruling in Smith.

"The problem with the decision is that the United States Supreme Court has gutted the free exercise clause of the First Amendment," declared Forest Montgomery, counsel for the National Association of Evangelicals.

Coalition representatives argued that the decision could jeopardize the use of ceremonial wine, the right of public school students to take time off for religious holidays, the exemption of church interiors from landmark laws, the practice of kosher slaughter and the right of students to wear religious garments such as yarmulkes.

Just one week after Smith, in fact, the high court overturned a Minnesota Supreme Court ruling that said requiring an Amish man to display on his buggy a fluorescent orange triangle —something the Amish consider an improper worldly symbol —violated his First Amendment right of free exercise of religion.

'Compelling interest'; 'least-restrictive means'
The Coalition for the Free Exercise of Religion insists that before Smith the Supreme Court had employed two crucial legal tests or standards in determining when a government law or act had infringed the free exercise of religion. These are the "compelling interest" and "least-restrictive means" tests.

In a nutshell, these standards hold that government must have a compelling interest to restrict a person's observance of religion —and even then must use only the least-restrictive means possible to protect this interest.

Galvanized by Smith, the coalition got to work. Its goal was to persuade Congress to take matters into its own hands and do something to protect what the coalition believed were endangered religious liberties. Three years after Smith, the coalition succeeded. Persuaded by its arguments against the now-infamous peyote case, Congress crafted and passed a Religious Freedom Restoration Act —RFRA, as it's often called.

RFRA codified the "compelling interest" and "least-restrictive means" standards that supporters said used to hold sway in law on religious-freedom matters. And when President Clinton signed RFRA in November 1993, government —local, state or federal —was prohibited from substantially burdening a person's exercise of religion unless it had a compelling interest do so and used the least-restrictive means possible.

But what the federal RFRA also did, essentially, was to try to undo a Supreme Court decision, opponents of the new law argued. They said Congress had unconstitutionally given religious believers a legal sword against an array of laws not intended to burden religion.

For example, should a church in a historic district be able to ignore city zoning ordinances and build a large addition? Should a state coroner be barred from performing an autopsy on the body of an Orthodox Jew? Should a fundamentalist Christian landlord be exempted from anti-discrimination laws and permitted to refuse to rent to an unmarried couple?

RFRA opponents argued that if government entities were obliged to meet the compelling interest and least-restrictive-means tests before applying any of these secular laws to religious persons, then a large group of people —those claiming religious objections — would often be free to ignore laws intended to protect the general welfare of societies.

It should also be pointed out that "compelling interest" and "least-restrictive means" are not easy legal standards for the government to meet when challenged with an alleged violation of a fundamental right, such as the First Amendment right to the free exercise of religion.

RFRA's appeal: popularity plus
In the drive to pass the federal religious-protection act, the RFRA coalition enjoyed an attentive audience in Congress. An improbably broad phalanx of Democrats and Republicans, from Orrin Hatch to Edward Kennedy, supported RFRA. Vice President Al Gore called it "one of the most important steps to reaffirm religious freedom in my lifetime."

The same group of organizations that persuaded Congress to pass RFRA in response to Smith is now pressuring individual state lawmakers to pass state RFRAs since the Supreme Court struck down the federal legislation last year.

The RFRA coalition commands the same respect in state legislatures across the country as it did in Congress. Notes constitutional-law scholar Marci Hamilton, the attorney who argued against the congressional RFRA before the Supreme Court, many politicians find taking a pro-religion stance irresistible.

But politically irresistible or not, RFRAs ultimately must withstand challenges in court. The federal RFRA could not.