THREE years after the Supreme Court struck a blow to the freedom
of religious practice, Congress is set to restore that right to its
previous level of protection.
The legislation, called the Religious Freedom Restoration Act,
would require that the government have a "compelling interest" when
restricting religious practices, such as the wearing of a
particular garb or the rejection of some or all medical procedures.
Government limits on the free exercise of religion would also
have to be carried out in the least-burdensome way possible, under
the new law. (Massachusetts child-abuse bill, Page 3.)
The "compelling interest" standard had applied from 1963 to
1990, when the Supreme Court rejected two native American men's
religiously motivated use of peyote, an illegal hallucinogen. That
ruling, Employment Division v. Smith, has subsequently been cited
in some 50 lower-court decisions limiting various religious
The House of Representatives passed the bill unanimously May 11.
The Senate Judiciary Committee approved it May 6, and the full
Senate is expected to take it up late this month or in early June.
President Clinton has promised to sign the bill.
"The Supreme Court's decision three years ago transformed a
most-hallowed liberty into a mundane concept with little more
status than a fishing license, thus subjecting religious freedom to
the whims of government officials," said Rep. Jack Brooks (D) of
Texas, chairman of the House Judiciary Committee, on the House
floor May 11.
Supporters of the bill maintain that it will not require courts
to allow behavior deemed to be against the interests of public
safety. For example, it would not have provided legal cover for
cult leader David Koresh, who allegedly stockpiled illegal weapons
and had sexual relations with underage girls.
But it might have produced different outcomes in some cases
since the Smith ruling or deterred some prosecutions altogether. In
one case, a Michigan judge ruled that a Jewish woman's rights were
not violated when the state medical examiner ordered an autopsy -
not permitted in some cases under Jewish law - on her son, who had
been killed in a car crash.
In another case, the United States Supreme Court vacated a
ruling by the Minnesota Supreme Court allowing the Amish to refuse
to display orange traffic-safety emblems on their buggies.
(Subsequently, the Minnesota court ruled again in favor of the
Regarding the practice of Christian Science, which relies on
spiritual healing over medical treatment, the law could afford some
protection. State laws that would require Christian Science parents
to take children to physicians may be difficult to enforce in cases
in which a child does not have a serious illness, because the state
would not have a "compelling interest" in intervening, says Robert
Peck of the American Civil Liberties Union.
"It's likely that parents would not be convicted in such cases,"
Mr. Peck says. However, he adds, in cases in which a child has
died, the government could easily prove a compelling interest in
Christian Science church officials are hopeful that the law will
have a deterrent effect in discouraging state intervention against
the practice of the religion. The law could help "reverse a
dangerous trend in our society of skepticism toward religion and
the practice of religion," says Phil Davis, the church's federal