Historic Ruling Awaited on Religious Freedom Law

By Drinan, Robert F. | National Catholic Reporter, November 1, 1996 | Go to article overview

Historic Ruling Awaited on Religious Freedom Law


Drinan, Robert F., National Catholic Reporter


In 1993 the San Antonio archdiocese decided that it should enlarge St. Peter's Church in the city of Boerne to accommodate the gathering of up to 1,000 worshipers who come to the shrine every Sunday. But local officials denied the necessary permissions, asserting that the church of St. Peter was listed as a historic place and could not be altered.

Archbishop Patrick Flores sued the authorities, claiming that the Religious Freedom Restoration Act of 1993 gave church officials the right to a hearing in which the government would be required to demonstrate that it had a compelling reason to keep the church at its present size.

The judge denied the request of the archdiocese and in addition declared the Religious Freedom Restoration Act unconstitutional. The Fifth Circuit Court of Appeals in New Orleans reversed that judgment, stating that the Religious Freedom Restoration Act is indeed constitutional.

On Oct. 15 the United States Supreme Court announced that it will review City of Boerne v. Flores. The stage is thus set for a historic ruling on the dimensions of religious freedom in America. Oral arguments will be early in the new year. A decision will be forthcoming no later than June 1997.

And dozens like it

The background of the Flores case - and dozens like it - goes back to a decision of the United States Supreme Court in 1990 in which the Court rejected 5-4 a claim to the free exercise of religion made by two men in Oregon who had lost their jobs because of their sacramental use, as American Indians, of peyote. This decision, Smith v. Oregon, written by Justice Antonin Scalia, seemingly reversed or at least restricted several Supreme Court decisions beginning in 1963 that were generous in the exemption they gave to claims based on the free exercise of religion. Scalia affirmed that the Supreme Court could not grant an exemption to a law of general applicability even if that law unintentionally or inadvertently impacted adversely on religious freedom. Jurists and academics have been strong in their denunciations of the ruling in the Smith decision.

Within a short time, Congress proposed the Religious Freedom Restoration Act, which would ease the Smith ruling in cases where the claimant asserts a violation of the free exercise of religion guaranteed by the First Amendment. The congressional test would reinstate the rule employed by the Supreme Court from 1963 to 1990. That rule would require the government in any case challenging a restriction under religious freedom to prove that a compelling interest of the government justifies or requires such a rule and that, if such a need is proven, the limitation on religious freedom is the least restrictive.

An amazing coalition of some 60 religious and civil liberties groups endorsed the Religious Freedom Restoration Act. Mainline Protestant groups, the Christian Coalition and the American Civil Liberties Union formed a coalition unprecedented in U.S. history. The U.S. Catholic Conference endorsed the Religious Freedom Restoration Act after being assured that it could not be utilized to broaden the law on abortion.

The House of Representatives passed the Religious Freedom Restoration Act unanimously on a voice vote. It was passed by the Senate by a vote of 97 to 2. It was signed by President Clinton Nov. 16, 1993.

Plaintiffs have relied in whole or in part on the Religious Freedom Restoration Act in some 200 cases - half of which involve prisoners, many of them Muslim, who sought to broaden what they claim to be their right to religious freedom.

Oceans of literature

The number of victories under the Religious Freedom Restoration Act is limited. But in its three years of existence it has generated oceans of literature by academics, litigants and civil libertarians. …

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