Bitter Over Ruling, Groups See Trouble For Minority Faiths
By Laurie Goodstein
A broad coalition of religious groups that united four years ago to pass the Religious Freedom Restoration Act reacted bitterly yesterday to the high court's decision to strike down the law and predicted a dire future without its protection.
They said they now envision a nation in which prison inmates are prohibited from praying in Arabic, Sikh Little League players are required to remove their turbans, evangelical students are obliged to attend classes on evolution, and churches are forbidden by zoning laws from remodeling or running soup kitchens.
"Every church and synagogue, every religious person in America is going to be hurt by this decision. They just don't realize it yet," said Oliver Thomas, counsel on religious liberty for the National Council of Churches. "It'll first start happening to minority faiths, but remember, Catholics are minorities in lots of states, and evangelicals are minorities in lots of places."
Whether the bleak scenario the religious groups predict in the wake of the Supreme Court's ruling accurately reflects its potential impact is far from clear, and certainly not everyone who has been following the controversial issue agrees.
A group of state attorneys general had argued that they did not need the power of a federal law to protect religious liberties. And some legal experts cautioned yesterday that the ruling may not be as dire to religious practices as some activists claimed.
"I have faith in the legislative process that both mainstream and non-mainstream religious believers will be able to speak up and be heard," said University of Notre Dame law professor Douglas Kmiec. He also noted that, under the legal standard still in place after the high court's action, any religious group that felt it was specifically targeted by state or local law could make a claim.
But the 1993 statute nonetheless has been invoked in a variety of cases around the country by religious people seeking to protect their rights to practice their faith. Since its passage, Jehovah's Witnesses successfully sued in California over having to take a loyalty oath as a condition of their state employment. The Western Presbyterian Church in Washington's Foggy Bottom prevailed in its struggle to keep open a controversial homeless feeding program that to which District zoning officials had objected. And in New York State, a Native American prison guard won a lawsuit after refusing to cut his hair.
Congress passed the religious freedom law by a near-unanimous vote. Traditional adversaries like Americans United for Separation of Church and State and the conservative Traditional Values Coalition had united behind its guiding principle that government should not inhibit believers from practicing their faith unless it can prove there were "compelling" reasons for doing so.
The law was designed to counter the impact of an earlier Supreme Court decision, Employment Division v. Smith, which many religious leaders viewed as hostile to religious practice. In that 1990 case, the court ruled that Native Americans had no constitutional right to take the hallucinogenic drug peyote as a religious sacrament. The court's decision in the peyote case said that laws, such as anti-drug statutes, that were neutral toward religion could be valid even if they impinge on someone's right to practice his faith.
The peyote case is important because it now, with the religious freedom law overturned, becomes the guiding legal principle. According to church-state experts, now only blatant and clearly bigoted attempts by state and local governments to discriminate against religious practices will be illegal. But such attempts are rare. More common, and more threatening, are laws that discriminate unintentionally, those experts said.
"The Smith approach ignores the fact that people lose their rights just as surely by unintentional discrimination as they do by intentional discrimination," said Melissa Rogers, associate general counsel for the Baptist Joint Committee. "A Jewish schoolboy's right to wear a yarmulke is impaired as much by a rule banning all hats in school as it is by a rule that specifically prohibits yarmulkes."
The result will be reminiscent of the 1800s "when government went about persecuting the Mormons deliberately because of a neutral law" prohibiting polygamy, said Marc Stern, counsel for the American Jewish Congress, who wrote the brief submitted by the coalition of 75 groups in support of the law.
In the ensuing century, state and local governments have become even more assertive about using their power to regulate, Stern maintained. Zoning laws, landmark laws, and environmental laws are all relatively new, and increasingly are applied to churches and religious institutions, he said.
With the 1993 law struck down, "it's going to require a different attitude on the part of churches and other religious institutions," Stern said. "They're not going to be as confident they can escape regulation as they have until now."
Yesterday's decision undoubtedly will supply new momentum to the drive to pass a constitutional amendment limiting government interference in religious activity, an effort underway for years before the Supreme Court ever took on the case. In general, church-state separationists are opposed to the idea of such an amendment, while it is favored by many on the religious right.
At a Capitol news conference jammed with activists and reporters, angry lawmakers said they would search for alternatives to counter the Supreme Court's decision.
"The court has once again acted to push religion to the fringes of society," said Sen. Orrin G. Hatch (R-Utah), a primary author of the statute. "The Supreme Court has thrown down the gauntlet and we intend to pick it up."
Both Sen. Edward M. Kennedy (D-Mass.) and J. Brent Walker, general counsel for the Baptist Joint Committee, said they will be scouring the lower courts for another case to use as a vehicle to challenge the precedent the Supreme Court set in the peyote case. Walker said another strategy is for states to pass their "little RFRA's" protecting religious freedom. One way or another, these leaders said, they will work to remedy the court's decision.
"I think this is going to be remembered as the Dred Scott of church-state law," said Thomas of the National Council of Churches, referring to the Supreme Court case permitting slavery. "And as in Dred Scott, eventually we will overcome."
Staff writer Ceci Connolly contributed to this report.
In 1990 the Supreme Court upheld an Oregon law outlawing use of peyote, even when taken for religious purposes. Subsequent incidents reflected the ruling, until the Religious Freedom Restoration Act passed.
Before the act was passed:
© Copyright 1997 The Washington Post Company