Milwaukee Journal Sentinel, Thursday, June 26, 1997.

Court strikes down religion immunity

Justices say law that limits regulations wrongly alters scope of First Amendment

By Frank A. Aukofer
of the Journal Sentinel staff
June 26, 1997

Washington - Saying that Congress wrongfully tried to redefine the Constitution's guarantee of religious freedom, the U.S. Supreme Court on Wednesday struck down the Religious Freedom Restoration Act.

The decision produced an outcry from religious organizations and national lawmakers of varying political ideologies, who vowed to take whatever action was necessary to reverse the decision.

Backers of the 1993 religious freedom law warned that Wednesday's high court ruling likely would affect a range of disputes where First Amendment rights to free exercise of religion run afoul of government rules, ranging from Christians' right to communion wine in dry counties to religious objections to autopsies by Orthodox Jews and Hmong.

They also argued strenuously that the 1993 law was needed to protect minority religions, and cited as an example an Amish group in Wisconsin that escaped fines for refusing to post bright orange safety triangles, which they object to as too worldly, on their horse-drawn buggies.

There are hundreds of lawsuits under the 1993 act that claim exceptions to state and local zoning, building, school, prison, employment, highway safety, building and anti-discrimination laws. Wednesday's Supreme Court decision eliminates such defenses.

The 6-3 ruling came in a Texas case (City of Boerne vs. Flores), in which a Catholic archbishop relied on the 1993 law to challenge a city's denial of a building permit to enlarge a church.

But the Supreme Court said that although Congress had the power to enforce a constitutional right, it could not change the right itself.

Writing for the majority, Justice Anthony M. Kennedy said, in effect, that Congress had built a shotgun to swat a fly.

He wrote that the 1993 law, known as RFRA, was so out of proportion to its stated purpose as a remedy that it could not be considered responsive to, or designed to prevent, unconstitutional behavior.

"It appears, instead, to attempt a substantive change in constitutional protections," he wrote.

Kennedy wrote that numerous state laws, such as the zoning regulations in the case, imposed heavy burdens on a large class of citizens.

"When the exercise of religion has been burdened in an incidental way by a law of general application," he wrote, "it does not follow that the persons affected have been burdened any more than other citizens, let alone burdened because of their religious beliefs."

The decision focused on the enforcement clause of the 14th Amendment to the Constitution, which gives Congress the power to pass laws to force states to protect constitutional rights. An example is the Voting Rights Act of 1965.

But the court said that such enforcement legislation had to be narrowly tailored to deal with the wrong involved.

"RFRA is not so confined," Kennedy wrote. "Sweeping coverage ensures its intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter.

"RFRA's restrictions apply to every agency and official of the federal, state and local governments... RFRA applies to all federal and state law, statutory or otherwise, whether adopted before or after its enactment.

"RFRA has no termination date or termination mechanism. Any law is subject to challenge at any time by any individual who alleges a substantial burden on his or her free exercise of religion."

Response to Oregon Case

The 1993 law was Congress' response to a 5-4 decision (Oregon vs. Smith) by the Supreme Court in 1990.

In that case, the high court held that Oregon could deny unemployment benefits to members of an American Indian religion who lost their jobs because they used an illegal hallucinogenic drug, peyote, in the practice of their faith.

The court ruled then that individuals had an obligation to comply with valid laws that were applied generally to the population. Wednesday's decision restores the 1990 ruling.

The case started in Boerne, Texas, a city about 28 miles northwest of San Antonio, where Archbishop Patrick F. Flores wanted to enlarge St. Peter Catholic Church. It had been built in 1923 and seated about 230 people - too small for its growing congregation.

But the city declared the area a historic district, and city officials denied the request for a building permit. Flores cited RFRA in appealing to the courts.

In declaring the law unconstitutional, the Supreme Court noted that RFRA was not a response to religious bigotry. Instead, Kennedy wrote, it was aimed at "laws of general applicability which place incidental burdens on religion."

Justice John Paul Stevens, in a concurring opinion, said RFRA violated the First Amendment. He said it amounted to an establishment of religion because it gave preferred treatment to religion.

"If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an enlargement of the structure," he wrote.

The law, Stevens said, had provided the church with "a legal weapon that no atheist or agnostic can obtain."

Justices Sandra Day O'Connor and David H. Souter filed dissenting opinions, in which they were joined by Justice Stephen Breyer.

O'Connor said she believed that the 1990 peyote case was wrongly decided and had harmed religious liberty.

As an example, she noted that a lower court, relying on that decision, had overruled objections by Hmong natives who objected on religious grounds to an autopsy of their son's body.

The peyote decision, O'Connor said, should be re-examined and replaced by a rule that would require the government to justify its actions based upon a "compelling state interest" and by means narrowly tailored to achieve that interest.

(File revised 7 July 2003)

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