Restoration drama: Downfall of federal religious-protection law produces new coalition strategy

By Jeremy Leaming
First Amendment Center

Congress' Religious Freedom Restoration Act had a limited but boisterous lifespan.

Before it was invalidated last year by the Supreme Court, the act, according to The New Republic, generated 189 lawsuits by inmates seeking exemptions from prison regulations on religious grounds.

Some of the claims deserved to be taken seriously: Some prisoners sued for not being permitted to wear crucifixes, for instance. In 1996, however, one prisoner claimed he should be allowed to smoke pot because of his membership in the Church of Marijuana.

It was not the wave of prisoners' claims, however, that ultimately proved fatal to RFRA at the national level. The act's downfall was triggered when city officials in Texas attempted to uphold zoning laws.

In 1995, the Catholic archbishop of San Antonio applied for a building permit to enlarge a church in Boerne (pronounced "Bernie"), Texas. Located in a historic district, the church was no longer large enough for its congregation. The zoning board turned down the archbishop's request, citing historic preservation laws. The archbishop sued the city, claiming that the congressional RFRA act required the city to exempt the church from its historic-preservation laws.

The district court, however, found that Congress had never had the constitutional authority to enact the law and apply it to the states. An appeals court reversed the decision, finding the act constitutional and declaring that the denial of the permit substantially burdened the Catholic diocese's free exercise of religion. City officials appealed to the Supreme Court.

Oliver Thomas, special counsel for the National Council of Churches and a member of the Coalition for the Free Exercise of Religion, warned that the Supreme Court was about to hear one of the most important religious liberty cases of all time.

Thomas and other RFRA supporters argued that the court had erred in its interpretation of First Amendment religious guarantees in Employment Div., v. Smith — the fired-for-peyote case that the federal RFRA law had been designed to counteract. The Smith ruling, they said, treated religious claims the same as secular ones, and therefore should not be allowed to stand. Now — in the Boerne case — the court had a chance to set things right again, the RFRA coalition said.

The reasoning was this: If the church in Boerne had been a philosophical bookstore, it would have been fine for the government to deny a building permit. But because religious persons were seeking an exemption from the zoning laws, the coalition maintained, government should be required to meet the "compelling interest" and "least-restrictive means" test before denying the permit.

RFRA's dark day in court
But this time the coalition's persuasive powers did not prevail. In June 1997, the Supreme Court voted 6-3 in Boerne v. Flores to invalidate RFRA. In doing so, the court noted that Congress had overstepped its constitutional powers in passing the legislation; the ruling did not address the First Amendment issues. The justices did, however, discuss Smith and its implications for how religion ought to be treated in a representative democracy.

Justice Anthony Kennedy, writing for the majority, started from the premise that the judiciary is the branch of government that decides if and when government actions or laws subvert a person's free exercise of religion.

"Under our Constitution, the Federal Government is one of enumerated powers," Kennedy wrote, citing the words of then-Chief Justice John Marshall from the 1819 Supreme Court decision McCulloch v. Maryland. "The judicial authority to determine the constitutionality of laws, in cases and controversies, is based on the premise that the 'powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.' "

In their argument before the high court, coalition attorneys had insisted that Congress' intent concerning RFRA was not to assume the duties of the judiciary, but merely to enforce, with federal legislation, religious-liberty rights as guaranteed by the due-process clause of the Fourteenth Amendment, the one that says states can't abridge fundamental constitutional rights.

Considering the legislative history surrounding Congress' enactment of RFRA, however, Kennedy failed to see any other intent except to rewrite a judicial legal standard.

"Congress enacted RFRA in direct response to the Court's decision in Employment Div., v. Smith," Kennedy said. "Many [lawmakers] criticized the Court's reasoning [in Smith], and this disagreement resulted in the passage of RFRA."

It should be noted that even if Congress' intent in creating RFRA had remained latent, the court still would have invalidated the law because, again, Congress has no constitutional authority to tell state courts how an alleged violation of a person's religious liberty should be interpreted.

Kennedy also said that Congress' constitutional powers cover only enforcement of laws protecting fundamental religious and other liberties.

"Legislation which alters the meaning of the Free Exercise clause (of the First Amendment) cannot be said to be enforcing the Clause," Kennedy wrote. "Congress does not enforce a constitutional right by changing what the right is. It has been given the power to 'enforce,' not the power to determine what constitutes a constitutional violation."

Kennedy concluded that RFRA radically altered the meaning of religious liberty as defined by the judiciary. That altered meaning could not be enforced in state or federal laws, he said.

"Requiring a State to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law," Kennedy wrote.

The test "would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind," he continued. "This is a considerable congressional intrusion into the State's traditional prerogatives and general authority to regulate for the health and welfare of their citizens."

Dire denunciations, new strategy
Members of the coalition denounced the Supreme Court's decision as a harbinger of the downfall of religious liberty in America.

"The decision is an obvious setback for religious liberty," said Walter Weber, counsel at the American Center for Law and Justice, a conservative Christian legal firm. "I think it highlights the need for a federal religious-liberty amendment. The Smith decision severely limited religious freedom in this country, and six justices today said the Congress can't fix that. Therefore, I believe the Constitution needs to be fixed."

Douglas Laycock, University of Texas law professor and member of the Coalition, said the court's decision amounted to a "disaster for all Americans and for those who claim their religious liberties have been violated. It is an unprecedented judicial act."

Mark E. Chopko, general counsel for the U.S. Catholic Conference, said RFRA had provided "religious people and their organizations the right to insist that accommodation, not conformity, be the norm."

Because, however, the Supreme Court apparently did not bar or could not bar states from enacting their own religious-freedom protection acts embodying the compelling-interest and least-restrictive means test, the coalition's next step was obvious: Lobby state lawmakers to take action against Smith.

The coalition formed the State RFRA Task Force to push for bills in every state.

In a standard letter to the coalition's various state representatives, Steve McFarland, director of the Christian Legal Society's Center for Law and Religious Freedom, wrote: "As a result of this decision (Boerne v. Flores), most states and localities generally will have much more latitude to interfere with religious garb or controlling the expansion of houses of worship or certain mission programs."

A united front, except ...
Most of the state religious-freedom protection acts currently mirror the struck-down federal RFRA that Congress passed.

State bills identical to the federal version are pending in Alabama, Georgia, Illinois, Kansas, Maryland, New Hampshire, New Jersey, New York, Pennsylvania, Tennessee, Vermont and Virginia. Last week, both chambers in the Illinois legislature passed religious-freedom protection acts identical to RFRA.

But, to the coalition's annoyance, many states have gotten creative with the RFRA idea. For instance:

• In California, Florida, Michigan and Louisiana, lawmakers whose bills mandate the use of the compelling-interest and least-restrictive-means test have provided exemptions for certain groups of people or for certain actions.

• In Florida, Michigan, and Louisiana, the laws may not be invoked by prisoners. (The Supreme Court has already concluded that the "compelling interest" and "least restrictive means" are not required in regard to prison regulations. In 1987 the high court, in O'Lone v. Shabazz, upheld a state prison regulation that precluded Muslim prisoners from attending religious services on Friday afternoons, as required by their faith. The court ruled that a prison regulation restricting the free-exercise religious rights of prisoners should be upheld if the regulation was "reasonably related" to a legitimate interest in keeping order in prison.)

• California's religious-freedom protection act may not be used by persons or groups in violation of any of the state's anti-discrimination laws.

The coalition has warned lawmakers that it will not support state RFRAs that introduce special exceptions.

"The Coalition unanimously opposes the exclusion of anyone — such as inmates — from the protection of the state RFRAs," McFarland said. "Religious freedom is an inalienable right of all persons. And a law that leaves out one politically unpopular group will eventually exempt other classes of Americans."

If states interject exemptions, McFarland said, "we will be left with the pitiful crazy quilt of legal protections for our First Amendment." And he suggested that these proposed exemptions were designed to torpedo state-level religious protection.

"The proponents of these special exemptions for anti-discrimination laws or prisoners or historic preservation laws just don't realize that if they prevail, and prevent the passage of state RFRAs, we (RFRA supporters) are not going to go home," McFarland said. "We will instead turn to trying to amend the Constitution."

Last week, California lawmakers slightly changed the wording of their religious-freedom protection bill, which initially exempted the state's anti-discrimination laws. The act now provides that "in certain circumstances, courts have found health, safety, anti-discrimination, and other concerns to constitute compelling government interests."

McFarland acknowledged the revision and said the coalition had reached a "very delicate" compromise with California lawmakers. He said that if the compromise is respected, the new language would be "acceptable to coalition members." McFarland refused to discuss the terms of the compromise.

Meanwhile, the religious-freedom protection act pending in Louisiana's legislature apparently is dead for at least a year because of its prison exemption.

Last week, a Louisiana state lawmaker tabled the act after coalition officials complained that it was not "pure." The act was identical to the federal version until recently, when the state's House Civil Laws Committee amended the bill to exempt state prisoners.

The coalition's task force is also coordinating efforts in Arizona, Delaware, Ohio, Texas and Wisconsin to lobby lawmakers to pass religious-freedom protection acts.

Besides buttonholing individual state lawmakers, the coalition has began efforts to create a new federal RFRA.

McFarland and Oliver Thomas have both told freedomforum.org that Congress can enforce a federal RFRA upon the states through its constitutional power to spend tax dollars. Coalition members have also testified to lawmakers in Congress on the need for a federal RFRA. But at the moment, no new federal RFRA has been introduced in Congress.