Court Ponders Broad Religious Freedom Issues
Kinkopf, David W., National Catholic Reporter
Could your city government prohibit your parish from expanding its church building or its social outreach programs based on zoning or historic preservation laws? Could your county government criminalize the consumption of alcohol and thereby prohibit the use of wine at a Catholic Mass? The Supreme Court is poised to decide these questions and the course of religious freedom in this country.
On Feb. 19, the Court heard arguments in City of Boerne v. Flores after the city told a Catholic parish it could not expand its existing church building to accommodate an increase in church attendance because part of the church's facade was located in the city's "historic district." The parish and its archbishop sued, relying on a sweeping 1993 law, the Religious Freedom Restoration Act. By enacting RFRA, Congress prohibited any level of federal, state or local government from substantially burdening the exercise of religion without a compelling interest.
The city countered that Congress violated the Constitution by enacting such a broad statute. If the city is correct and RFRA is unconstitutional, religious individuals and organizations will be left with little recourse in challenging general laws that may indirectly burden or even flatly prohibit religious activities. Thus, the Supreme Court's decision, expected at any time, will dictate the fate of religious freedom disputes, including the religious rights of children in public schools, the religious rights of prisoners and religious discrimination against homosexuals.
RFRA was the result of lobbying by an unprecedented alliance of religious groups, including the United States Catholic Conference, the American Civil Liberties Union, the Baptist Joint Committee, the Anti-Defamation League and Americans United for Separation of Church and State.
These groups were outraged by a 1990 decision, Employment Division v. Smith, involving the use of the hallucinogenic drug peyote in a Native American religious ceremony. In the Smith decision, the Supreme Court ruled that Oregon's general criminal law against the possession of peyote did not violate the First Amendment's protection of religious freedom even though the law criminalized religious conduct.
The split decision in Smith, authored by Justice Antonin Scalia, fundamentally altered the manner in which the courts looked at religious freedom claims. Prior to Smith, courts required governments to make exceptions to laws that burdened religious exercise, unless the government had a compelling reason in not granting a religious exemption. After Smith, courts no longer demanded a compelling reason before allowing the government to prohibit religious conduct indirectly.
As long as the government did not single out religious use specifically, it could prohibit actions regardless of the effect on an individual's religiously motivated conduct. Thus, under the Court's view of the First Amendment, a neutral and generally applicable criminal law that prohibited the consumption of alcohol could be enforced against a Catholic priest and the communicants who drank wine during the Eucharist.
Justice Scalia disappointed those who hoped he would find broad constitutional protection for religious conduct because of his conservative philosophy and his strong, publicly expressed Catholic faith. Scalia's consistent belief in a very limited role for the U.S. Constitution won the day at the expense of religious freedom. In Scalia's view, a legislature can choose to exempt religious uses from a particular criminal prohibition, but government is not required to do so by the Constitution.
The Smith decision angered many who believe that people of faith, particularly members of minority religions without political clout, require broad protection from government regulations that burden or prohibit religious conduct. A nearly unanimous Congress passed the Religious Freedom Restoration Act as an attempt to "restore," by means of a statute, the pre-Smith constitutional standard that gave broad protection to religious freedom. …