Supreme Court's Ruling Does Not Imperil Religious Freedom

By George Will Copyright Washington Post Writers Group | St Louis Post-Dispatch (MO), June 29, 1997 | Go to article overview

Supreme Court's Ruling Does Not Imperil Religious Freedom


George Will Copyright Washington Post Writers Group, St Louis Post-Dispatch (MO)


The overheated title Congress gave to the Religious Freedom Restoration Act of 1993 causes some excitable people to conclude that the Supreme Court's overturning of it means that religious freedom is in peril. Actually, it primarily means that Congress cannot dictate what the Constitution means.

In declaring the law unconstitutional the court simply declined to share the power it has wielded since 1803. That was when Chief Justice John Marshall, in Marbury vs. Madison, grounded judicial review in the insistence that it is "emphatically the province and duty of the judicial department to say what the law is."

In Boerne, Texas, an archbishop was denied a permit to enlarge a church because it is in a historic preservation district. The archbishop said the city was violating the religious freedom law, which prohibits government from "substantially" burdening the free exercise of religion, even if the burden results from a rule of general applicability, unless the rule is the "least restrictive means" of serving a "compelling" government interest. Congress, in enacting the law, threw down a gauntlet that the court had to pluck up. Congress said it was acting because in a 1990 case the court had misconstrued the First Amendment's guarantee of the free exercise of religion. In that case, members of the Native American Church said their free-exercise right was unconstitutionally burdened by an Oregon statute that criminalized the use of the hallucinogenic drug peyote, which they used sacramentally. The court sided with Oregon, holding that an individual's obligation to obey generally applicable laws prohibiting socially harmful conduct is not contingent on the laws coinciding with the individual's religious beliefs. Congress provoked the court by saying in the religious freedom law that this 1990 ruling "virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion." Now the court has replied to Congress: We did no such thing and, anyway, construing the Constitution is not Congress' job. Congress said the law was merely an exercise of its 14th Amendment power "to enforce, by appropriate legislation" protection of constitutional liberties. But the court, voting 6-3 said: Congress has asserted its own definition of what those liberties are, claiming a power to make a substantive change in constitutional protections. This claim is attested by the religious freedom law's explicit denunciation of, and vow to rectify, the court's 1990 definition. …

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