At LibertyVernon L. Alger September/October 1997 "The Religion Clauses of the Constitution represent a profound commitment to religious liberty."
So said Justice Sandra Day O'Connor in her dissent to the recent Supreme Court decision that voided the Religious Freedom Restoration Act (RFRA).
RFRA was enacted in 1993 to provide protection for the free exercise of religion. It stated that an individual's exercise of religion may not be burdened by law or regulation unless a compelling governmental interest is involved. RFRA was passed in response to Employment Division v. Smith, when the Court held that religious convictions are no defense against a failure to comply with a law not specifically directed at a religious activity and that applies to everyone. RFRA was challenged, and the High Court, in Flores, struck it down.
According to the Court, section 5 of the Fourteenth Amendment provides that Congress may enact legislation to assist in enforcing existing constitutional rights, but it cannot create new rights. Using Smith as the benchmark, the majority said that because no evidence exists that laws are intended to directly restrict religion, RFRA created a new constitutional right and was thus unconstitutional. Even more disturbing is the majority's statement that, "The stringent test RFRA demands of state laws reflects a lack of proportionality or congruence between the means adopted and the legitimate end to be achieved."
The result? It appears there is no more of a constitutional protection against a burden on religion than against a burden on golfing. The joining of a church is the equivalent of the joining of a country club. No longer does the protection of the exercise of religion have a special place in America's constitutional jurisprudence.
Justice O'Connor, in an excellent dissenting opinion, said, "In Smith, five Members of this Court-without briefing or argument on the issue-interpreted the Free Exercise Clause to permit the government to prohibit, without justification, conduct mandated by an individual's religious beliefs, so long as the prohibition is generally applicable. Contrary to the Court's holding in that case, however, the Free Exercise Clause is not simply an antidiscrimination principle that protects only against those laws that single out religious practice for unfavorable treatment. . . . The Clause is best understood as an affirmative guarantee of the right to participate in religious practices and conduct without impermissible governmental interference, even when such conduct conflicts with a neutral, generally applicable law. Before Smith, our free exercise cases were generally in keeping with this idea: where a law substantially burdened religiously motivated conduct-regardless whether it was specifically targeted at religion or applied generally-we required government to justify that law with a compelling state interest and to use means narrowly tailored to achieve that interest."
Justice O'Connor said that Smith has harmed religious liberty, and in light of the Supreme Court precedence and the nation's tradition of religious liberty, Smith "is demonstrably wrong." She would return to a rule that "requires government to justify any substantial burden on religiously motivated conduct by compelling state interest and to impose that burden only by means narrowly tailored to achieve that interest." She then proceeded to show, from history, that there always has been an accommodation of religion unless a compelling state interest could not otherwise be satisfied. At the conclusion of her historical review, she 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. As the historical sources . . . show, the Free Exercise Clause is properly understood as an affirmative guarantee of the right to participate in religious activities without impermissible governmental interference, even where a believer's conduct is in tension with a law of general application. Certainly, it is in no way anomalous to accord heightened protection to a right identified in the text of the First Amendment."
Well said, Justice O'Connor!
Let's hope her colleagues (or at least just four more) are listening.
Vernon L. Alger, Esq., is director of public affairs and religious liberty for the Lake Union Conference of Seventh-day Adventists in Berrien Springs, Michigan