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  •   Supreme Court Overturns Religious Freedom Statute

    By Joan Biskupic
    Washington Post Staff Writer
    Thursday, June 26, 1997; Page A01


    The Supreme Court yesterday struck down a federal law intended to protect religious practices from government interference. By a 6 to 3 vote, the justices said Congress had usurped the court's power to define constitutional protection of religion and intruded on the business of the states.

    The majority questioned whether the 1993 law was even necessary to counteract religious bigotry. But in fierce dissent, Justice Sandra Day O'Connor took the extraordinary step of reading her objections from the bench, declaring that America's religious liberty has been harmed by the majority's ruling.

    The Religious Freedom Restoration Act, passed with broad bipartisan support and the enthusiastic backing of President Clinton as well as church groups across the spectrum, said governments can infringe on religious practices only if they have a health, safety or other "compelling interest" in doing so. It originally was adopted to address complaints by religious groups that some general state and local laws discriminated against practitioners.

    Since its passage, the law has been invoked in a broad range of bitter, emotional disputes. It has been used as a legal tool to keep church-run soup kitchens open, to allow prisoners to wear religious jewelry and to protect the Amish from being required to put bright orange warning signs on their buggies.

    Within hours of yesterday's ruling, congressional and religious leaders vowed to fight the decision, saying they would explore any legal avenues around the Supreme Court ruling. But legislators also acknowledged that they see no obvious solutions to how they could provide greater constitutional coverage.

    While yesterday's ruling was an important benchmark on religious freedom, the majority opinion by Justice Anthony M. Kennedy was equally significant in defining Congress's authority to pass laws safeguarding constitutional rights.

    "Our national experience teaches that the Constitution is preserved best when each part of the government respects both the Constitution and the proper actions and determinations of the other branches," Kennedy wrote, finding that federal lawmakers in this case seized power beyond their reach when they passed the 1993 law in response to a 1990 high court ruling. He was joined by Chief Justice William H. Rehnquist and Justices John Paul Stevens, Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg.

    Yesterday's ruling was the result of a struggle between Congress and the high court that has been playing for years. The controversy began in 1990, when a slim majority of justices cut back on religious protections. Congress tried to reverse the effects of that decision with the 1993 law, only to be overruled yesterday.

    In essence, the impact of yesterday's ruling is that state and local laws which specifically target religious groups for discrimination would be considered unconstitutional. But it is within the powers of lawmakers to expect that churches should comply with the laws that everyone else must adhere to. In the case yesterday, a Roman Catholic church in Boerne, Tex., had argued that it shouldn't have to comply with local zoning laws that blocked it from expanding its mission-style building.

    University of Texas law professor Douglas Laycock, a lawyer for the Catholic church, called the ruling a dramatic infringement on Congress's ability to protect not just religious but all individual liberties. "This court has staked a claim to judicial supremacy that exceeds anything the Warren court ever claimed for itself," Laycock said.

    Rabbi David Saperstein, director of the Religious Action Center of Reform Judaism and one of those who pressed for the law's passage, said the decision would "go down in history . . . among the worst mistakes this court has ever made."

    But lawyer Marci Hamilton, who represented Boerne city officials, said, "What this says to Congress is that it cannot attempt to mimic the Constitution. It cannot enact a law that tries to change the Constitution."

    Ohio Solicitor General Jeffrey S. Sutton, who represented a group of states protesting the federal law, applauded the court's ruling as "a watershed case . . . respecting states' ability to govern themselves and to look after religious liberties themselves."

    The case, City of Boerne v. Flores, traces to 1990, when the high court in a 5 to 4 opinion ruled that an individual's religious beliefs do not excuse the person from complying with a law, so long as the law in question is applied to all citizens equally. Writing for the majority in Employment Division v. Smith, Justice Antonin Scalia abandoned a test from earlier cases that required a state to prove it had a "compelling interest" in enforcing a statute that infringed on religious practices. That prior standard had put more of a burden on governments to defend regulations that hurt practitioners.

    The religious freedom law attempted to write into statute what the court refused to find in the First Amendment's free exercise of religion guarantee. With passage of the new congressional protection, the standard was toughened: Rather than merely showing local laws are applied equally, a state or municipality had to show it had a compelling interest in forcing a religious group to comply along with everyone else.

    In setting that standard, Congress relied on its powers under Section 5 of the 14th Amendment, which says it "shall have power to enforce, by appropriate legislation, the provisions" of the amendment's protection against state infringement on equal rights. The 5th U.S. Circuit Court of Appeals upheld the act, relying on an important 1966 high court decision that said Congress had broad leeway to protect constitutional rights.

    But in reversing the appeals court yesterday, the justices emphasized that Congress does not have any "substantive" power under the 14th Amendment. Rather, Kennedy said, federal lawmakers have "remedial" authority to write laws attempting to cure state violations of rights already established by the court. Kennedy used as an example Congress's enactment of voting rights law when states were trying to keep blacks from the polls: "In contrast, RFRA's legislative record lacks examples of modern instances of generally applicable laws passed because of religious bigotry."

    In dissent with O'Connor were Justices David H. Souter and Stephen G. Breyer, but all three varied in their reasons.

    O'Connor, who had protested the Smith decision in 1990, agreed that Congress lacks the power to define the scope of constitutional rights. But she said that because the majority relied on the validity of the Smith decision, she could not sign the opinion.

    "The decision has harmed religious liberty," she said, noting that its application had blocked Hmong natives from objecting on religious grounds to their son's autopsy and prevented a church from conducting services in an area zoned for commercial use (although secular groups could meet there.)

    Detailing a history of religious liberty in America, and joined by Breyer, O'Connor said, "Our nation's founders conceived of a republic receptive to voluntary religious expression, not of a secular society in which religious expression is tolerated only when it does not conflict with a generally applicable law."

    In his dissent, Souter asserted that Congress indeed had power under the 14th Amendment to enact the religious freedom law. He was alone in that view.

    © Copyright 1997 The Washington Post Company

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