Without Shelter

Lee Boothby November/December 1998
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In 1991 the archbishop of San Antonio was denied a permit to enlarge St. Peter's Catholic Church in Boerne, Texas. The archbishop's challenge of the denial led to City of Boerne v. Flores, in which the U.S. Supreme Court struck down as unconstitutional the Religious Freedom Restoration Act (RFRA) of 1993. As a result, the exact meaning of the free exercise of religion is now wandering amid a legal "no-man's-land."

As with many church-state cases, the real issue here isn't the particular; it's the universal behind it. In Flores the problem wasn't the denial of the building permit per se, but the rationale the Court used in upholding the denial: that RFRA was unconstitutional.

RFRA arose in response to the Supreme Court's decision in Employment Division, v. Smith, which eradicated what many court observers believed to be bedrock constitutional principle first established in Sherbert v. Verner and amplified in Wisconsin v. Yoder. Under Sherbert/Yoder, when a governmental requirement conflicted with an individual's religious practices, in order for the requirement to prevail over the individual's religious practices the government had to demonstrate a compelling state interest that showed why the practice should not be allowed. Then, even if the government was able to demonstrate that interest, it had to prove further that there was no less restrictive means by which to achieve its secular purpose. In other words, the onus and burden was on the government to show that it had a very good reason to restrict a religious practice; if not, then those seeking an exemption or accommodation to a law that restricted their practice should, ideally, have gotten it.

But in a radical departure from precedent, the Smith Court stated that the free exercise clause of the First Amendment "does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'"

According to Smith, the only time the Sherbert/Yoder test applies is in the hybrid situation in which the free exercise claim is raised (1) "in conjunction with other constitutional protections, such as freedom of speech and of the press ...," ibid. p. 881; or (2) "where the state has in place a system of individual exemptions," such as in unemployment compensation cases. In the latter situation, the state "may not refuse to extend that system to cases of `religious hardship' without compelling reason."

Thus Smith relegated the free exercise clause to only an antidiscrimination provision leaving unprotected individuals whose religious beliefs may be somewhat different from society's mainstream. The Smith justices reduced free exercise protection while completely aware that their action might have a disparate effect on those who are members of minority religions. The Court stated:

"It may fairly be said that leaving accommodation to the political process will place at relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs."

This diminished understanding of free exercise protection was not shared by much of the American religious community, the Congress, or the president. The result was RFRA, which mandated that federal, state, and local government be subject to the compelling state interest/least restrictive alternative test when free exercise claims were raised by an individual who found his or her religious practices were in conflict with governmental law, regulation, or action.

When Congress enacted the RFRA, it relied primarily on its Fourteenth Amendment enforcement power. The Fourteenth Amendment provides in relevant part:

" No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. . . .

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

The courts have repeatedly held that the religion clauses of the First Amendment are applicable to the states by reason of the Fourteenth Amendment to the United States Constitution. Thus those who argued that under Section 5 of the Fourteenth Amendment Congress had the right to enact RFRA contended that "Congress . . . is only protecting by legislation one of the liberties guaranteed by the Fourteenth Amendment's due process clause, the free exercise of religion, beyond what is necessary under Smith."

However, the Court held that in adopting RFRA, Congress went beyond its Fourteenth Amendment authority. Because the Smith Court had decided the scope of the Establishment Clause, when Congress enacted RFRA, it went too far:

"Congress does not enforce a constitutional right by changing what the right is. It has been given the power 'to enforce,' not the power to determine what constitutes a constitutional violation."
Also, the Court concluded that "RFRA is not designed to identify and counteract state laws likely to be unconstitutional because of their treatment of religion." As the Court noted, "in most cases, the state laws to which RFRA applies are not ones which will have been motivated by religious bigotry."

In summary, the Supreme Court instructed that "when the political branches of the Government act against the background of a judicial interpretation of the Constitution already issued, it must be understood that in later cases and controversies the Court will treat its precedents with the respect due them under settled principles ... ." The Court argued that once interpretation of the Free Exercise Clause was made by the courts, "it is this Court's precedent, not RFRA, which must control."

The Flores decision, of course, did not settle the argument or end the problem. On the contrary.
First, it was argued that although RFRA has been held unconstitutional as far as the federal legislation may be applied to state and local governments, it is not unconstitutional with reference to federal agencies. This is because the Fourteenth Amendment, the basis of the Boerne decision, does not apply to the federal government. In a recent case, In re: Young Christians v. Crystal Evangelical Free Church, the Eighth Circuit Court of Appeals held that the Bankruptcy Act under which bankruptcy trustees sought to recover from churches tithes received from bankruptcy debtors receiving such funds violated RFRA. The court concluded that RFRA was an appropriate means by which Congress could modify the United States bankruptcy laws.

Second, in Flores three of the justices dissenting from the majority argued Smith itself should be reexamined. Justice O'Connor, joined by Justice Breyer, concluded that the Court in Flores may well have been correct in ruling that Congress did not have the power under the Fourteenth Amendment to enact RFRA in light of the Court's earlier Smith decision. But she observed that the Flores decision "is premised on the assumption that Smith correctly interprets the free exercise clause." Justice O'Connor then stated that "this is an assumption that I do not accept." She continued, explaining that the free exercise 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."

In his Flores dissent, Justice Souter had "serious doubts about the precedential value of the Smith rule and its entitlement to adherence." He stated he was "not now prepared to join Justice O'Connor in rejecting it [Smith] or the majority in assuming it to be correct." But he called for "a full adversarial consideration" of the issue. Justice Souter stated that "this case should be set down for reargument permitting plenary examination of the issue."

The Flores case continues to generate much heat. Professors Eisgruber and Sager argued that RFRA was "practically unworkable" and that in Flores the Court "was renouncing a congressional vision of religious liberty that was at radical odds with its own." In contrast, Oliver Thomas, special counsel for religious and civil liberties of the National Council of Churches, compared Flores with the century-old Dred Scott decision, saying the "decision . . . is a blow not only to the sovereignty of the Congress but to the American people as well."

In June of this year federal legislation was introduced to reinstate the compelling state interest/least restrictive alternative test as part of federal law applicable not only to the federal government but also to state and local governments. But the new legislation, called the Religious Liberty Protection Act, is limited to situations that involve or affect interstate commerce, when the burdensome state program is a recipient of federal funds, and when the accommodation is aimed at avoiding religious discrimination. Nor is it without detractors. Besides this law, a broad-based coalition of religious organizations is currently asking state legislatures to pass legislation requiring the application of the Sherbert/Yoder test in each state.

The bottom line in this free exercise mess is that though the Sherbert/Yoder test was hardly perfect, it did provide some level of judicial protection for the free exercise of religion. After Smith and now Boerne, that protection, with rare exceptions, is all but gone. Even worse, among many scholars who oppose the jurisprudence behind Smith, and who see a need for greater free exercise protection,--much disagreement exists on the best way to reinstate these protections.

So for now, Americans are in a type of legal "no-man's-land" when it comes to free exercise of religion, no one knowing for sure just how much protection their religious practices will have, and one man knowing ultimately how, or even if, those practices will be protected. A sad state of affairs, especially for a nation that views the free exercise of religion as one of the most basic of all human rights.

Lee Boothy is an attorney with Boothby and Yingst in Washington, D.C.



1 117 S. Ct. 2157 (1997).
2 494 U.S. 872 (1990).
3 374 U.S. 398 (1963).
4 406 U.S. 205 (1972).
5 Smith, 494 U.S. 879.
6 Ibid., p. 881.
7 Ibid., p. 884.
8 Ibid., at 890.
9 Flores, 117 S. Ct. 2163.
10 Ibid., p. 2164.
11 Ibid., p. 2171.
12 Ibid.
13 Ibid., p. 2172.
14 Ibid.
15 __ F.3d __, No. 93-2267 (8th Cir. 1998).
16 Flores, 117 S. Ct. 2176 (O' Connor, J., dissenting).
17 Ibid.
18 Ibid., p. 2177.
19 Ibid., 2186 (Souter, J., dissenting).
20 Ibid.
21 Ibid.
22 Eisgruber and Sager, Congressional Power and Religious Liberty After City of Boerne v. Flores, 1997 Sup. Ct. Rev. 79, 83.
23 Clarence Page, "Keeping the Faith: Religious Freedom Act Could Turn Into Worthy Amendment Scheme," Chicago Tribune, July 2, 1997, p. 19.
24 See Liberty, July-August 1998, p. 8.

Article Author: Lee Boothby