Iambs And Pentameters

September/October 1997 November/December 1997 By now, the shock waves are over. The Religious Freedom Restoration Act (RFRA) has been declared unconstitutional, and the "free exercise of religion" has been reduced to mean-with few exceptions-whatever the local and state legislative branches of government decide it means.

According to the majority, RFRA violated the limits of Congressional power, because section 5 of the Fourteenth Amendment granted Congress power to enact "appropriate legislation" that ensures the provisions of the Fourteenth Amendment (which, through selective incorporation includes the Free Exercise Clause) are enforced. The Court argues that this provision allows Congress the right to enact only "preventative" or "remedial" legislation; it doesn't allow it to change fundamental constitutional rights. In other words, section 5 allows Congress to protect already established rights; it doesn't give it the prerogative to create new ones.

Did RFRA create substantive new rights, or was it merely ensuring that the already existing right of free exercise was protected? The answer, of course, depends upon just what rights the Free Exercise Clause grants to Americans.

Scalia argued that what RFRA demanded from the Free Exercise Clause was not, historically, what the Framers envisioned for the clause-and thus RFRA, rather than merely protecting what was already there, created new rights and was therefore a usurpation of judicial power. The dissent countered that RFRA gave what the Free Exercise Clause itself demands, namely "the 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." If so, then all RFRA did was seek to protect what has already been granted, and thus should have been upheld.

Though the majority focused mostly on the "separation of powers" issue, it did so on the premise that the Smith standard (based on Scalia's understanding of history and his jurisprudence of original intent) was the correct way to interpret the Free Exercise Clause. From that premise, of course, it's no wonder the justices came to the decision they did. After all, Smith is the prevailing jurisprudence, voted in by a majority of the U.S. Supreme Court in 1990. So, technically, the Court in Flores did vote correctly, in the sense that RFRA, viewed from narrow Smith standard, did create new constitutional rights not in its original charter. (The Founders didn't want the basic constitutional foundation of its government to be in the hands of the legislature. "It would be a novel and dangerous doctrine," wrote James Madison, "that a legislature could change the constitution under which it held its existence." From that standpoint alone [which for the majority was enough] Flores was correctly decided.)

However, RFRA was first passed on the correct assumption that Smith was wrongly decided. As any logician can prove, if you have the wrong premises, then no matter how good your logic, you can still get wrong conclusions. O'Connor, in her dissent, said that much of the majority opinion in Flores "is premised on the assumption that Smith correctly interprets the Free Exercise Clause. This is an assumption I do not accept." Souter, too, in his dissent, wrote: "To decide whether the Fourteenth Amendment gives Congress sufficient power to enact the Religious Freedom Restoration Act, the Court measures the legislation against the free exercise standard of Smith. . . . I have serious doubts about the precedential value of the Smith rule and its entitlement to adherence."

Here's the conundrum: the High Court, premised on a specific court decision, strikes down a law that was first enacted to undo "that specific court decision."

The best way out? The Court could-and should-follow O'Connor's plea, and "correct the misinterpretation of the Free Exercise Clause set forth in Smith." Perhaps some of the justices who voted in the Flores majority solely on the grounds of separation of powers would not only like to revisit Smith, but even strike it down. Meanwhile, with Flores, the justices have made their point: when it comes to declaring what the Constitution means, the Court, not Congress, has the final say, even if, in the end, the Court is wrong.

CONCURRING NONSENSE

The following in Justice Stevens' opinion in Flores: "The Religious Freedom Restoration Act of 1993 (RFRA) is a 'law respecting an establishment of religion' that violates the First Amendment to the Constitution. 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. Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law. Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment." By Justice Stevens' rationale, then, the Free Exercise Clause should be deemed unconstitutional as well.

SPIRIT OF THE LAW

A South Carolina Board of Education member made national news with his outburst: "Screw the Buddhists and kill the Muslims!"-an interesting utterance by someone frustrated over those who object to the posting in public school classrooms of the Ten Commandments, which, among other things, forbid murder and adultery.

NON-KOSHER AMENDMENT

For centuries, the Gospel has hardly been "good news" to the Jews; after all, how good is the news that unless you convert, you'll be burned, drowned, or have your children taken away? Thus, the negative reaction in Israel to the nationwide distribution of a book by American evangelist Morris Cerullo that encouraged Jews to accept Christ is more than understandable. What's not understandable, however, is the response. The Israeli Knesset voted, in a preliminary hearing, to approve a law that would make it a crime to persuade individuals to change their religion. The proposed amendment to the Penal Law is entitled "Prohibition of Inducement to Religious Conversion" and would render it illegal to "hold, print, copy, distribute or hand out" any literature that attempts to persuade someone "to change his religion" under the threat of one year in jail. Reaction has not been positive, especially among evangelical Christians who have been some of Israel's biggest supporters. Though the Israeli Consulate claims that the bill was introduced by private members of the Knesset and not the government itself, and that the bill won't get enough votes to pass in the Knesset (the earlier vote was just a preliminary hearing), opponents warn that important members of the government have supported the bill and that with many members of the Knesset sympathetic, it could indeed pass. How could something that sounds like it comes from the Dark Ages even be considered in a nation like Israel, which prides itself on its progressive liberal democracy?

Apparently, many members of the Knesset don't seem to understand the implications of this proposal, which would run roughshod over something so fundamental to liberty and democracy. After all, a law that makes expressing a religious opinion punishable by a year in jail sounds more like Stalinist Russia than secular Zionism. When asked by the BBC about the undemocratic nature of the bill, Mr. N. Zvili, secretary-general of the Labor Party and the bill's sponsor, answered, "Of course we want a democracy! But even in a democracy you can't have people changing their religion." Of course not.