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  •   Texas City Asserts Congress Is 'Overreaching' on Religion

    By Joan Biskupic
    Washington Post Staff Writer
    Thursday, February 20, 1997; Page A18

    Taking up one of the most important religious freedom cases in recent years, Supreme Court justices yesterday expressed serious reservations about whether a 1993 federal law gives churches and their members too much liberty at the expense of local laws.

    At issue is the constitutionality of the Religious Freedom Restoration Act, a far-reaching piece of legislation that allows government to infringe on religious practices only if it can prove it has a "compelling interest" in doing so. While state and local officials say the law has interfered with their authority, a broad array of church groups that lobbied for the law – and are now trying to keep it on the books – say the statute plays a critical role in protecting the free exercise of religions, particularly those out of the mainstream.

    Across the country, the new law has been invoked in a variety of ways – to protect Jehovah's Witnesses from being subjected to loyalty oaths as a condition of employment, to keep open a church-run soup kitchen, and to allow prisoners to wear religious jewelry. In yesterday's case, the archbishop of San Antonio has sued the city of Boerne, Tex., under the law for refusing to allow a church to expand its historic mission-style church to accommodate its growing congregation. The 1923 church is covered by a city historic preservation law that local officials are trying to enforce.

    Much of the discussion during yesterday's oral arguments focused on whether Congress had the authority to pass the law in the first place, particularly since the high court three years ago upheld laws that infringe on religious practices as long as particular religions were not targeted intentionally.

    "This case is not about religious liberty," said Marci A. Hamilton, representing the city of Boerne. "It is about federal power."

    Hamilton described the law as the worst of "legislative overreaching" and a "staggering" abuse of federal power.

    In some of their queries, Justices Anthony M. Kennedy and Sandra Day O'Connor, whose votes have been key in religion cases, appeared to agree with Hamilton.

    Kennedy questioned whether the law was intruding on states' ability to pass laws, whether they involve zoning or criminal justice. He also asked whether the law, which may force local governments to become aware of and involved in religious activities, would ultimately violate the constitutional doctrine requiring separation of church and state.

    O'Connor was plainly concerned that the purpose of the law was to overturn the effects of an earlier high court decision and asked whether Congress could also change the court's rules for assessing whether abortion regulations burden a woman's right to end a pregnancy.

    On an issue that has concerned state officials, O'Connor suggested the law may invite prisoners to claim they should be able to smoke marijuana as a religious practice.

    Representing Archbishop P.F. Flores and the overcrowded St. Peter's Catholic Church, attorney Douglas Laycock told the justices that Congress was properly exercising its power to protect individual rights when it passed the religious freedom law. He compared the religion law to federal voting rights laws that bar discrimination at the polls, even though they go further than prior court rulings.

    Solicitor General Walter E. Dellinger, who also defended Congress's power to pass the law, emphasized yesterday that lawmakers were trying to protect minority church groups whose practices may be shunned by the mainstream.

    A ruling in Boerne v. Flores is expected sometime before the court recesses this summer.

    © Copyright 1997 The Washington Post Company

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