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Reviving the Religious Freedom Restoration Act
[ Feature 1 Photo 1 ]

Center Photo by Tom Vogel; Photos of Supreme Court and Capitol Buildings by Robert Strawn

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Baptist minister Oliver Thomas, a special counsel for the National Council of Churches, had worked on drafting RFRA.

Photo by Barbara Beckwith

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Jesuit Father Robert F. Drinan, a former congressman and now Georgetown law professor, would rely on Congress's treaty power to protect free exercise of religion.

Photo by Barbara Beckwith


In a fit of pique at Congress the Supreme Court struck down the Religious Freedom Restoration Act. Now what are the legal alternatives to guarantee free exercise of religion? By Barbara Beckwith

 The First Liberty

 Why RFRA Was Enacted

 Why RFRA Was Overturned

Religion in Schools

Legal Recourses Now

Safeguarding Our First Liberty

SUPPOSE WHERE YOU LIVE lawmakers suddenly outlaw all alcohol and thus Catholic Masses become illegal. In 1920 when Prohibition and the Vollstead Act became law, an exception was made for Mass wine in order to secure the support of Catholics for that "noble experiment." But there was then no law which demanded such an exemption. And there is again no law—now that the Religious Freedom Restoration Act, passed overwhelmingly by Congress in 1993, was struck down by the Supreme Court last June.

Are Catholics likely to be denied the Eucharist in the United States? Probably not, because while Catholics are a minority in this country, we are now the largest single denomination and constitute an important voting bloc in many places. But in a county in Mississippi, say, where there are few Catholics, Protestants may not even realize that Catholics use real wine at Mass, instead of grape juice as at their services.

What about other times Catholic beliefs and practices conflict with civil law? What about Christians who may not want to rent an apartment to an unmarried couple where there are fair housing laws like California's? In 1996 a staunch Presbyterian, Evelyn Smith, was sued because she believed sex outside of marriage is sinful and she herself was committing a sin when she rented her housing units to people who engage in nonmarital sex. The California Supreme Court ruled 4-3 against her. They insisted that she could sell her rental units and invest elsewhere if this antidiscrimination ruling was burdensome to her religious beliefs. And this happened even when the Religious Freedom Restoration Act (RFRA, referred to as Rifrah) was law!

Without RFRA in place, last July Pastor Wiley Drake of the First Southern Baptist Church in Buena Park, California, was convicted of Orange County zoning violations because his church was sheltering the homeless.

But with RFRA, Western Presbyterian Church in Washington, D.C., won its 1994 case against a local zoning board to allow its program to feed the needy. The district court found that the church's feeding program was motivated by its sincere belief in the Bible, and thus fell within the protection of the First Amendment and RFRA.

What about Catholics who want to carry rosaries in Hispanic areas where rosaries sometimes have become gang symbols and been forbidden in public schools? Or Catholics who need a meatless alternative in the school cafeteria on Fridays during Lent or "permission" to have an ashy smudge in the vague shape of a cross on their foreheads on Ash Wednesday? Or Catholic parents who don't want information about artificial contraception provided to their children or condoms available in school restrooms?

The case which overturned RFRA was a Texas case involving a Catholic church which wanted to enlarge and remodel but was limited by preservation laws in a historic district. Built in 1923, the church replicates the mission style of the region's earlier history. But it seats only about 230 worshipers, which left 40-60 parishioners outside at each Sunday Mass. The case of City of Boerne v. Flores (Archbishop Patrick F. Flores of San Antonio) made its way to the Supreme Court where, on June 25, 1997, the 6-3 decision went against the Church and declared RFRA unconstitutional.

The First Liberty

Religious freedom in this country is sometimes referred to as "the first liberty." Many of those who immigrated to the United States came seeking the right to practice religion as they chose. Without special protection for religious liberty (the first right specified in the Bill of Rights), the U.S. Constitution would never have been approved.

That First Amendment, intended to limit the powers of the new federal government, has two parts that refer to religion: the "nonestablishment" clause and the "free exercise" clause, which are always to be held in balance. It begins: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...."

This means that the government is to give no single religion preference, as with the established Anglican Church in England, and to interfere as little as possible with people's worship and religious practices. But many critics are now wondering if our country has gone beyond the intentions of the original lawmakers.

Throughout U.S. history the application of this amendment has never been smooth, as Justice Sandra Day O'Connor pointed out in her dissenting opinion to the Boerne case. By the time of the Constitution most "colonies appeared to recognize that government should interfere in religious matters only when necessary to protect the civil peace or to prevent 'licentiousness.' In other words, when religious beliefs conflicted with civil law, religion prevailed unless important state interests militated otherwise." By 1789, every state except Connecticut had some version of the free exercise clause in its constitution.

Most 17th- and 18th-century Americans belonged to Protestant denominations. "The vast majority assumed that theirs was a Christian, i.e., Protestant, country," says Justice O'Connor, citing First Freedoms: Church & State in America to the Passage of the First Amendment, by Thomas J. Curry. "They automatically expected that government would uphold the commonly agreed upon Protestant ethos and morality."

Yet even though civil law and religious practice were generally the same, problems arose such as requiring Quakers to take oaths to testify or hold office or to serve in the military. In fact, military conscription over the years has proved a major point of struggle between religious conscience and civil law.

RFRA passed the House unanimously and the Senate 97-2. The Catholic Church played a pivotal role in its passage.

Why RFRA Was Enacted

In this half of the 20th century the Supreme Court (and other courts) analyzed most free exercise of religion cases using the Sherbert (Sherbert v. Verner, 1963) test: Did the state have a compelling interest that was served by the challenged regulation?

But in 1990 the case of Employment Division of Oregon v. Smith went further. There the Supreme Court insisted in a 5-4 vote that a "neutral" law that is "generally applicable" must be complied with regardless of whether it infringes on a religious practice. If the law was not intended to discriminate against a particular religion and its effect on religion is merely "incidental," the First Amendment has not been offended, says Smith. This decision involved a Native American who used the drug peyote in a religious ceremony, was fired for failing a drug test and subsequently denied unemployment compensation.

Religious and civil liberties groups were shocked and angered by the Smith decision. They realized that it put small, unpopular religions at risk and threatened even mainstream religions.

To counter the Smith decision, both houses of Congress immediately introduced versions of the Religious Freedom Restoration Act. RFRA was intended to adjust the balance away from the state toward religion. It reinstituted the Sherbert test with a little twist. RFRA prohibited government (federal, state, local) from burdening a person's free exercise of a "substantial" religious belief or a religiously motivated practice, unless the government has a compelling interest and can show that it is employing the least restrictive means to achieve that compelling interest.

Originally, the U.S. Catholic Conference had opposed RFRA because the bishops' lawyers thought that Roe v. Wade might be overturned and that somehow RFRA could be used to claim that restricting abortions infringed on a woman's religious beliefs. But once the Casey decision (Planned Parenthood of Southeastern Pennsylvania v. [Governor Robert P.] Casey) came down upholding the constitutionality of Roe v. Wade, the Catholic Conference announced in March 1993 that it would support RFRA.

So the USCC allied with the National Council of Churches and more than 60 other religious and civil liberties groups in supporting the Religious Freedom Coalition. Later, lead counsel Mark Chopko testified to Congress for RFRA, on behalf of the USCC.

In the end, RFRA passed the House unanimously on a voice vote and the Senate 97-2. According to the Rev. Oliver ("Buzz") Thomas, special counsel for the National Council of Churches, "The Catholic bishops and the USCC played a pivotal role in the passage of RFRA." The Rev. Thomas was interviewed by St. Anthony Messenger in October on the porch of the old Alex Haley Farm in Clinton, Tennessee.

RFRA was signed into law by President Clinton on November 16, 1993.

Why RFRA Was Overturned

With all this support, why was RFRA overturned and why so soon?

State attorneys general immediately were concerned that RFRA could increase the number of suits brought by prisoners that their religious rights were being violated. But the Rev. Thomas says that actually less than one quarter of one percent of all the prison litigation in the United States involved RFRA claims, and very few times did prisoners win using RFRA.

"Some of the suits were frivolous, which is why some 15 states asked the Supreme Court to nullify RFRA," Jesuit Father Robert F. Drinan wrote in his column in the National Catholic Reporter (July 18, 1997). Father Drinan, a former congressman from Massachusetts, was interviewed in November at the Georgetown University Law Center in Washington, D.C., where he now teaches.

In general, RFRA did not quite create the feared firestorm of new lawsuits.

The case of Lukumi Babula Iaye v. Hialeah, the Santería church in Florida which practiced ritual sacrifice of chickens, might have been an easier case under RFRA. But another factor was operating here, too. Only ritual slaughter was prohibited by the city and theirs was the only church that practiced it. As the Rev. Thomas, who wrote one of the briefs for the Supreme Court case, jokes, "I said they wanted to have their chicken nuggets and eat them, too. That is to say, Hialeah wanted to allow you to kill chickens for any reason—for sport, you could hunt, you could fish, you could slaughter them for food or you could eradicate them as pests—as long as you weren't cruel, didn't torture them or violate animal cruelty laws. But you just couldn't sacrifice one to God."

The Rev. Thomas is a minister ordained for both the Southern and American Baptist Conventions. Regardless of his personal opinion about the Santería church, the Rev. Thomas as lawyer for the National Council of Churches defended the church. And in the end the church won because it could prove that the law was targeted specifically at it. The law was not "neutral." (But note that not even one judge until the Supreme Court level had sided with the church.)

One place where RFRA did matter was in Cheema v. Thompson, which concerned the Livingston School District in California. Three boys, members of the Khalsa Sikh religion, challenged a school ban on weapons. They wanted to carry a kirpan, a small ceremonial dagger with a curved blade carried close to the body by a leather strap. It is given boys as part of a manhood ritual and all male members of the sect are expected to have theirs with them always. With neighboring school districts, Sikh parents had made an arrangement that allowed the boys to carry the weapons if they were sewn completely into their trouser legs and thus unavailable as weapons. But the Livingston District insisted on an absolute ban on weapons.

The district court and the appeals court agreed that the school had a compelling interest in campus safety. But whereas the lower court had upheld the school, the appeals court upheld the Sikhs because it was not demonstrated that the total weapons ban was the least restrictive means to accomplish this. The modifications by the parents were proving successful elsewhere. But this case only got to securing a preliminary injunction, which allowed the boys to carry the kirpans, and then RFRA was struck down.

When the Supreme Court overturned RFRA, Justice Anthony Kennedy wrote the majority decision, supported by Chief Justice William Rehnquist, Justices Paul Stevens, Clarence Thomas and Ruth Ginsburg. Justice Stevens wrote his own concurring opinion as well. Justice Antonin Scalia concurred in part. Dissenting were Justices Sandra Day O'Connor, David Souter and Stephen Breyer, but not all for the same reasons. O'Connor took the unusual step of reading her dissenting opinion from the bench. The majority held that in passing RFRA Congress had exceeded its power.

Drafters of RFRA had taken the 1965 Voting Rights Act as the model for their legislation. But the Court said that RFRA was wrong because the 14th Amendment gave only "remedial" and not "substantial" power to the federal government to enforce laws on the states. "Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause. 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," Justice Kennedy wrote. That right belongs to the Court alone, the Court insists.

The Rev. Thomas thinks that RFRA "got caught up in a larger debate about the powers of Congress vis-à-vis the states, and the federalism concerns that some members of the Court have, particularly Rehnquist, Scalia and others, that Congress has over the years increasingly overstepped its bounds."

Father Drinan thinks that on this issue the liberal and conservative tags attached to various justices don't explain how they voted on RFRA. He speculates that emotion and turf-protecting may come closer to explaining the vote. The justices reacted to the fact that RFRA was drafted pointedly in response to the Court's Smith decision. "The majority of the Court clearly felt that their authority and unique role was usurped by RFRA," he wrote in the National Catholic Reporter.

(Justice Clarence Thomas, giving the Erasmus Lecture to the Institute of Religion and Public Life in Manhattan in September, admitted as much. It was overreaching by Congress and not a disagreement about the necessity of religious freedom that brought the majority of the Supreme Court to its decision, he said.)

Religion in Schools

One reason so many of these issues are arising now is our increasing cultural and religious pluralism in the United States. Nowhere is this pluralism more evident than in public schools. It was Protestant teaching and practice that in the 1800's forced Catholics to create their own school system. Now, with 50 percent of Catholic children in public schools, the problem of religion in public schools again has become a Catholic concern.

"The public schools of America have become the battleground in the culture wars that deeply divide our nation," writes Dr. Charles Haynes, scholar in residence at the Freedom Forum First Amendment Center at Vanderbilt University, Nashville, Tennessee. Last May Dr. Haynes spoke to Catholic editors from around the world about how religious liberty developed and is working in the United States.

The issues go much deeper than just prayer in public schools. "Bitter clashes over such issues as religious holidays, equal access, religion in the curriculum and religious practices have placed children and teachers in the crossfire of controversy and dissension....As alienation and frustration deepen, public education is weakened and our future as one nation of many peoples and faiths is called into question," says Haynes.

Dr. Haynes gives some guidelines about how to accommodate religion in schools in the book he edited, Finding Common Ground: A First Amendment Guide to Religion and Public Education. (The Rev. Thomas served as legal editor for the book.) Now in its third printing, the revision is available from the Freedom Forum.

Legal Recourses Now

In our interview the Rev. Thomas sketched out some ways the Religious Freedom Coalition may proceed in the vacuum left by RFRA's overturn:

Adopting a Constitutional amendment. A Constitutional amendment would be impervious to the Supreme Court, but tedious to pass. (Consider the legislative history of the Equal Rights Amendment and an amendment to outlaw abortions.) With the amount of support RFRA had in Congress and with the public, a Constitutional amendment might fly.

But the Rev. Thomas doesn't think it is necessary yet: "We should explore all the other alternatives first."

Using Congress's power to regulate interstate commerce. Last fall before the Senate and House Judiciary Committees, testimony proposed tapping Congress's power to regulate commerce. "The commerce clause traditionally was the basis for most of the civil-rights legislation in the 60's," says the Rev. Thomas. "You know, that's the way they got at Ollie's Barbecue, the famous restaurant in Alabama, a public accommodation discriminating on the basis of race. Because they buy their lettuce and their tomatoes from out of state, they engage in interstate commerce; therefore, we [the federal government] can regulate what they do."

For a religious freedom law to use this leverage, Thomas says that the government "would have to show a direct connection between the religious practice involved and something in interstate commerce. Let me give you an example: Suppose there's a big church that buys Sunday school literature or hymnals [from out of state]....I think you can make a strong case that they're engaged in interstate commerce."

But the commerce clause has been scaled back in recent years, Thomas realizes. Handgun restrictions that relied on this power have been overturned.

Using Congress's spending power to attach conditions.The Supreme Court has agreed that Congress can attach conditions to programs that the federal government funds. "We learned that most recently in Rust v. Sullivan," which upheld the gag rule on abortion counseling in government-funded clinics, Thomas says.

He predicts that Rep. Charles Canady (R-Fla.), chairman of the Subcommittee on the Constitution in the House, which is part of the Judiciary Committee, will be introducing such legislation. "One part of that legislation will say that any governmental entity—public school, jail, zoning commission, you name it, any governmental entity that takes federal funding—agrees to this condition: namely, that they will accommodate religion unless there's a compelling reason not to, such as health or safety."

A local police department, for instance, which had accepted federal funds for community policing programs, could not proceed to enforce a local ordinance which prohibited wine at Sunday Mass, Thomas says, "unless there were a compelling reason. Of course, there isn't a compelling reason if people aren't becoming intoxicated."

Using the power of Congress to make treaties. Father Drinan thinks another option is asking Congress to enforce the international covenant on civil and political rights, which it ratified recently. Article 18 of that covenant protects not only religious beliefs but also the "freedom either individually or in community with others and in public and private, to manifest his religion or belief or worship, observance, practice or teaching." The freedoms guaranteed there are only to be restricted by "public safety, order, health or morals for the fundamental rights and freedom of others."

But since Congress has "not been assiduous in implementing other treaties"—the covenant against torture, the treaty on genocide, the covenant for the elimination of racism—pursuing religious freedom as an international political right may not materialize.

Keeping RFRA as federal law. Since RFRA was struck down on the fact that it can't be enforced on states, it can still be considered federal law. The Rev. Thomas points out, "The Clinton administration, bless their hearts, has taken the position that RFRA does apply to the federal government. And the attorney general of the United States and the Federal Bureau of Prisons are still complying with RFRA because they say it's not that difficult."

But a bankruptcy case coming up in the Eighth Circuit Court may challenge that position. Crystal Evangelical Free Church was asked to give back past tithes and offerings of a man who gave to the church in good faith but went bankrupt within the year. The church had won over the creditors, with RFRA in place. Now that decision will be reconsidered.

Enacting state RFRA's. Individual states can also pass RFRA's, says the Rev. Thomas who had just testified in California on that state's RFRA. But this alternative means possibly 50 different laws.

Pursuing a litigation strategy. In her dissent, O'Connor had suggested that churches pursue a determined litigation strategy that will force the Supreme Court to rethink the founding fathers' intention in crafting the First Amendment.

Safeguarding Our First Liberty

"If we are not committed as a people to protecting religious liberty for our citizens, then you know America really doesn't stand for what we say it stands for," the Rev. Thomas told the House Judiciary Committee.

Religious liberty is at risk now, Thomas explains to me. "That's not to say that somebody's gonna throw you in jail for practicing your faith. That's not gonna happen. Religious liberty is at risk as much through apathy and ignorance as through bigotry. By that, I mean that bureaucrats when they make laws don't often realize that they are infringing upon religion."

“The dirty little secret is that all of us are a minority somewhere....If they can pick one off, they can pick any of us off.”

— The Rev. Oliver Thomas

Thomas is chairman of his local school board in Maryville, Tennessee. He admits, "School districts regularly pass policies saying they don't allow students to wear a head covering in school—no caps, no scarves, no head coverings of any kind. Well, they're not thinking about the Orthodox Jewish boy who must wear his yarmulke."

Marc Stern, representing the American Jewish Congress, had made a similar point after the demise of RFRA: "The challenge to religion today in the United States comes not only from faiths intent on suppressing competition but also from those of little or no faith, who see no special value in religious practice, and who are perfectly willing to have the state squelch or impede religious views with which they disagree." He added, "If the Catholic Church cannot build a new church in the largely Catholic city of Boerne, what hope is there for less well-organized (and smaller) churches?"

The Rev. Thomas believes, "What we are facing is an exploding pluralism and a lack of knowledge on the part of many of us in the majority about the requirements of a particular faith....

"The dirty little secret is that all of us are a minority somewhere. You may be Catholic in New Orleans and be in fine shape, but move to Shreveport right up the road and you've got a different problem. You may be fine if you're a Baptist in Mississippi, but move to Salt Lake City...."

For the Rev. Thomas, this is the reason he fought to defend the chicken sacrifice of the Santería church: "The Hialeah case is instructive because the churches were willing to step forward and defend these people, even though we didn't like their theology. And I think that's because the churches realized that, if they can pick one off, they can pick any of us off. And if the law is that you can gerrymander ordinances to get at different religious groups, then what's going to happen to the Roman Catholic in Shreveport? What's gonna happen to the Baptist in Salt Lake City? What's gonna happen to the Jew in north Alabama? We can't start down that road."

That's why some way must be found to revive the heart of the Religious Freedom Restoration Act and allow the greatest latitude to free exercise of religion throughout this country.

Barbara Beckwith is the managing editor of St. Anthony Messenger and a graduate of Marquette University's College of Journalism.

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