CONGRESS GIVETH AND THE SUPREME COURT TAKETH AWAY?

by David Sisler

"Our laws and institutions should not impede or hinder, but rather should protect and preserve fundamental religious liberties."

So said President Bill Clinton, on November 16, 1993, when he signed into law "The Religious Freedom Restoration Act." The RFRA was passed less than a month earlier by a rare, unanimous vote of the House of Representatives. It sailed through the Senate with only three "nay" votes.

Over sixty religious organizations and civil liberties groups combined to form a coalition to press both houses of Congress for the passage of RFRA. They represented religious liberals and conservatives, and included native American spiritual groups and Christian, Humanist, Jewish, Muslim, Scientology and Sikh religious organizations. The coalition brought together longtime enemies (like the American Civil Liberties Union and the Traditional Values Coalition) to restore protection to religious freedom after the U.S. Supreme Court's decision in Employment Division v. Smith. In that case, the so-called "Peyote Case," the court, with one drop of the gavel, erased the "compelling reason" requirement which had protected religious freedom for 25 years. Native Americans who used the drug peyote as part of a centuries-old religious worship service were fired and denied unemployment compensation. The court said that whenever a law is "generally applicable" to all citizens and is not aimed specifically at relgious practice, the government need not give a compelling reason for restricting religion.

RFRA reversed that decision and restored the original balancing test set forth in earlier Supreme Court decisions. Specifically, the Religious Freedom Restoration Act places the burden on the government (federal, state, or local) to prove that there is a compelling government interest which requires "burden[ing] a person's exercise of religion." The decision to burden must further that compelling interest and the remedy must be "the least restrictive means of furthering that compelling governmental interest."

Without the protection of RFRA, the free exercise of religion is seriously jeopardized. A church was ordered to give up all tithes it had received from parishioners who had gone bankrupt. A landlord whose religious beliefs opposes fornication claimed the right to refuse to rent an apartment to an unmarried couple, but without the "compelling reason" protection, the free religious exercise claim was disallowed. And in a case which will decide the constitutionality of RFRA, proposed alterations to a Texas church was forbidden and the congregation's claim that the city government violated its "free exercise" rights, lost in court.

Boerne, Texas, denied an application from Archbishop P. F. Flores to expand the St. Peter Catholic Church because it was within the city's historic district. Citing a large increase in members, the church said it would be unable to accomplish its mission unless it could expand. The archbishop brought suit claiming the city's action violated RFRA. The city said RFRA was unconstitutional. The Supreme Court's decision will be announced at the conclusion of its current term.

Without a clear affirmation of the constitutionality of the Religious Freedom Restoration Act, government bodies will continue to interfere with religious practices. A friend-of-the-court brief filed by the Coalition for the Free Exercise of Religion states, "Our collective experience is that our religious beliefs and practices are increasingly vulnerable to the insensitivity of governmental bodies."

School busing, school prayer, abortion, assisted suicide, euthanasia the great social issues of our time have all been decided by, or are being decided by the U.S. Supreme Court, which has hoarded them as its private prerogative. To further those decisions, the Court has pointed to so-called "rights" which, if they exist in the Constitution at all, exist only in its shadows.

Writing the decision for the Ninth Circuit Court of Appeals in Compassion in Dying v. Washington, which overturned a ban on euthanasia, approved by the voters of Washington, Judge Stephen Reinhardt said that people "with strong moral or religious convictions... are not free to force their views... on all other members of a democratic society." Does he mean that people without strong moral or religious convictions are free to force their views on the rest of us?

Writing the majority decision in Romer v. Evans, the Supreme Court case which overturned the vote of the citizens of Colorado prohibiting local civil rights statutes based on sexual preference, Justice Anthony M. Kennedy branded as a bigot any citizen who considers homosexuality immoral. Following that logic, state statues barring polygamy, sodomy and incest can, likewise, be struck down, regardless of the wishes of the citizens who originally approved those statutes.

George Washington, in his farewell address, warned that religion must have a central place in American life, otherwise the nature of the country will be changed for the worst. The democratic process, which is being usurped by an increasingly incautious exercise of judicial power, threatens to produce that very change.

"Governments," the signers of the Declaration of Independence declared, "are instituted among Men, deriving their just Powers from the Consent of the Governed," but recent workings of the Supreme Court demonstrate increasing intolerance to religion and a course set largely by secularism. Legal power is quickly being removed from the hands of officials who are elected by popular vote, and are therefore answerable to the voters, and placed in the hands of a non-elected Court, installed for life, and answerable to no one. By upholding the constitutionality of RFRA, the Supreme Court can take a giant step back from the brink of unaccountability.

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Published in the Augusta Chronicle 2/15/97

Copyright 1997 by David Sisler. All Rights Reserved.

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