Mark E. Chopko
When the Supreme Court decided Employment Division v. Smith (1990), the reaction among religious and civil liberties groups was swift and nearly unanimous: it was seen as a potential disaster for religious liberty (though its only immediate effect was to allow the State of Oregon to deny unemployment compensation to two drug counselors who were fired for using peyote, a hallucinogenic drug, in religious ceremonies). After Smith, some groups expressed the fear that the government would be free to penalize, punish, or prevent the exercise of religion without serious constitutional scrutiny so long as the law applied to nonreligious entities as well. That was the fear echoed last month in these pages by Durham, Gaffney, Laycock, and McConnell. They speculated that the government might tell religious schools what to teach so long as it tells secular schools the same thing. They suggested that the government might require churches to hire gay clergy so long as it also requires businesses to hire gay managers. These professors even predicted that the government might force a Jewish athlete to doff his yarmulke so long as other athletes are forced to take off their gimme caps. Some groups and individuals did not stop with such dire predictions and gross hyperbole. They asked Congress to enact a new statutory right patterned on the judicial test often used by the Supreme Court in some free exercise cases prior to Smith. They styled their bill the Religious Freedom Restoration Act (RFRA) and they got it introduced by Congressman Stephen Solarz of New York. They chose which groups would be included in the drafting of RFRA and strictly controlled the drafting process. For example, they included a section claiming to leave the Establishment Clause unaffected by RFRA. When asked to delete the provision as unnecessary (RFRA speaks to free exercise, after all), one drafter admitted that its purpose was to try to preclude Catholics from using RFRA to gain a share of education assistance. Then, when others inside and outside the RFRA coalition raised questions about the finished product that had been presented to Congress, a new tactic ensued. Support for RFRA was equated with support for religious freedom”if you do not support RFRA, you are tarred with the accusation that you must be against the Free Exercise Clause. Even staunch defenders of the First Amendment were suddenly politically incorrect if they did not pledge uncritical allegiance to the RFRA solution to the Smith problem. Many of those who support RFRA are good lawyers who recognize potential problems if it is enacted in its present form, but they have persuaded each other that this is their best opportunity to get Congress to adopt one particular First Amendment philosophy. As attorneys and legal scholars, they know that RFRA does not restore anything”the word “Restoration” in the title of the Act is an intentional misnomer of the first degree. Another drafter, however, has warned that this should never be stated publicly. Despite their intentional silence on this point, RFRA’s drafters know that a statute enacted by Congress does not restore, amend, or modify the Constitution of the United States. Just as the Smith decision did not erase the Free Exercise Clause from the First Amendment (no matter how many times RFRA supporters say it did), neither does RFRA add one iota to the constitutional rights of Americans (no matter how many times RFRA supporters promise it will). To the contrary, congressional enactment of a statutory free exercise remedy, such as RFRA, may inhibit the ability of litigants in future cases to attack Smith. This is so because courts routinely avoid deciding constitutional issues if they can dispose of a case under a statute or procedural rule. That is not to say that this possibility alone is reason not to employ some statutory fix to the Smith problem, but the fact is that the Supreme Court has not decided a free exercise case since the day it decided Smith, and no one, not even the backers of RFRA, knows how the newly reconstituted Court will approach its next free exercise decision, particularly if that next case involves something like government efforts to regulate ordination of clergy rather than criminal laws prohibiting the use of controlled substances. Indeed, there is already a conflict in the circuit courts of appeals about how to apply Smith and if it is limited to criminal matters. Those orchestrating the RFRA campaign have thus made a tactical error in labeling RFRA a “Restoration” bill. Not only is it impossible for a statute to change constitutional law, but RFRA strategists know full well that prior to Smith the Court did not decide every free exercise case using the “compelling interest” test set out in the Act. Not surprising in constitutional jurisprudence, the Court had not locked itself into a single test to determine all free exercise claims. Even Professor McConnell, in his law review comments, has said that the Court had more often in recent years simply balanced :he various interests against each other. Depending on the circumstances, the Court would apply tests other than compelling interest, as it did on a number of occasions. With free exercise claims that had not yet reached the Court, there was no assurance that only one test”the compelling state interest test enshrined by RFRA”would be employed to evaluate complex competing interests. Yet, under the guise of “Restoration,” the public and the Congress are supposed to believe that RFRA’s guaranteed application of the compelling interest test in all free exercise cases simply reflects the state of the law before Smith. This is not the case. As noted above, the RFRA groups suggest that ordination of clergy by churches is the same thing as the hiring of business managers by corporations. Not only do they know better, but most of them would strenuously defend the constitutional right of churches to choose their own ministers (female, gay, or otherwise) and the Supreme Court would uphold it. They also know that, even under the Smith decision, government could not prohibit religious schools from teaching the faith even though, as now, there are extensive requirements placed on private schools. They even know that years before the Smith decision, members of the military could be constitutionally prohibited from wearing yarmulkes with their uniforms. RFRA’s backers do themselves no credit by using such inflammatory but inappropriate examples in support of their cause. Nor do they advance their cause by attempting to discredit sincere efforts by other religious groups and individuals to design a better statutory scheme than that offered by RFRA. The United States Catholic Conference, the editors of this journal, and others have appropriately raised legitimate concerns that the present RFRA will be used by some, not for protection from government intrusion, but to attack the rights of other citizens and religious groups. For example, some of the groups supporting RFRA regularly attempt to persuade the government to exclude religiously affiliated organizations from government programs aimed at social problems, such as education, homelessness, hunger, teenage pregnancy, and unemployment. They make no secret of their intention to use RFRA, if enacted, to further their goals and, as noted above, to preclude a contrary use by others. Others have attempted to get the Internal Revenue Service to lift the tax exemption of churches with which they disagree on public issues. If RFRA is enacted, some may be tempted to do so again. Fortunately, four respected law professors have now said that “no one has standing to challenge another taxpayer’s exemption, and there is no free exercise right to challenge governmental expenditures that do not coerce the believer’s own religious practices.” If that is indeed true, then as advocates for the RFRA coalition, those professors should have no objection to spelling it out in the express language of the Act. It would be pointless surplusage, in their view, but it would assuage substantial concerns about the intended uses of RFRA and gain support for the Act. Adding such language, in their opinion, would change nothing legally, but it would, appropriately, remove the threat that RFRA will be utilized for what the professors call “bad consequences.” Unfortunately, RFRA does not now include such a provision and some RFRA supporters vehemently insist that they would oppose RFRA if such “legally pointless” language were included. To them, every free exercise claim (except as noted above) must be litigable under RFRA, even if this leads to “bad consequences.” Could it be that these “bad consequences” are anticipated and desired by some? Why else would they cling so tenaciously to what the professors seemingly dismiss out of hand as meritless concerns? There is one additional consequence engendered by RFRA that threatens the rights of others rather than shielding religion from government restrictions. There are those who would use the Religious Freedom Restoration Act to attack the right to life of unborn children. This issue is patently different from government programs and tax exemptions; not only is the right being attacked infinitely more precious, but the persons being attacked, the unborn, are completely defenseless. RFRA proponents have finally acknowledged that the Act, if passed, will be used to seek access to abortions. Some pro-life RFRA supporters attempt to dismiss the risk to unborn children inherent in the Act by arguing (i) that the risk only arises if Roe v. Wade is overturned, (ii) that for twenty years courts have routinely rejected free exercise arguments for abortion, and (iii) that the justices prepared to overrule Roe will do so because the government’s interest in protecting unborn life is compelling from the point of conception. These arguments are fundamentally flawed. First, if enacted, RFRA could be used immediately to challenge state limitations on abortion even before Roe is overruled. Prior to the overruling of Roe, courts will be asked to recognize a religious claim to abortion under RFRA. Confronted with a proper challenge, courts might feel compelled, under standard rules of construction, to decide the RFRA statutory claim before addressing the constitutional privacy claim to abortion. Second, courts have not routinely rejected free exercise abortion claims for twenty years. It is more accurate to say that federal courts have routinely decided abortion claims on constitutional privacy grounds and not addressed the constitutional free exercise claims on their merits. In the one significant federal case that decided the issue, the lower court held that abortion funding restrictions did violate the Free Exercise Clause; the decision was reversed on appeal, but on procedural grounds. Third, while five of the current justices may have expressed dissatisfaction with Roe’s compelling state interest analysis at various times in different cases, in the recent Webster decision (1989), three of those justices expressed the opinion that Roe should be overruled by simply demoting abortion from a fundamental right to a liberty interest. A fourth. Justice O’Connor, has embraced an “undue burden” analysis under which prohibitions on access to abortion might not survive. Thus, the long-hoped-for reversal of Roe may not rest on a compelling interest analysis at all. If that is the case, RFRA’s statutorily mandated compelling interest analysis, the most stringent of judicial tests and one that has provided no protection for the unborn for twenty years, might provide a new weapon for abortion advocates. To counter the abortion issue, proponents of RFRA point, like the Ghost of Christmas Future, to dire consequences that may befall pro-life individuals and institutions if RFRA is not passed. Fortunately, these potential problems have been considered by Congressman Chris Smith of New Jersey, who has introduced his own Religious Freedom Act (RFA). Representative Smith’s bill eliminates both the use of RFRA to attack the unborn and the potential consequences to those who defend the life of the unborn. It is a bill to which no one should object on this issue since, as the four law professors have opined, “the free exercise claims and arguments put forward by the pro-choice lawyers . . . would not be meritorious . . . . “ Not surprisingly abortion supporters in the RFRA coalition have not adopted this same view, since it would be directly contrary to positions they currently advocate in litigation. Significantly, as the press has reported, some RFRA supporters hope and expect that a woman seeking an abortion allegedly out of professed religious scruples would be able to force a state to allow the abortion under RFRA. There is something Orwellian about the dogged resistance of RFRA’s backers to amendments that would improve the Act by responding to these legitimate concerns. At the insistence of some, RFRA drafters have already included in the Act a seemingly unnecessary provision relating to the Establishment Clause, yet they refuse to support other allegedly unnecessary amendments. While all players in the legislative process may appear to be equal, apparently some are more equal than others. The refrain that any amendment to the bill will kill it is often heard in Washington but rarely reflects reality. If a statute like RFRA will help protect the free exercise of religion from the heavy hand of an increasingly secular state, and do so without equally adverse consequences to the rights and lives of others, then everyone should be for it. No one, however, should settle for anything less than the best law that can be written given the current state of our knowledge of the legal landscape. As with most legislation, RFRA can and should be improved during the legislative process. America’s experiment with the free exercise of religion has stood for two hundred years on constitutional, not statutory, legs. It is not at all clear that the Smith decision, the only case of its kind in that two-hundred-year history, has so crippled religious freedom that it cannot recover without legislative intervention. Nor is it apparent that the congressional cure will be better than the Smith disease. Yet many good, well-intentioned people sincerely believe that a quick statutory fix is just what the patient needs, and they may be right. They should be willing to admit, however, that legislation such as RFRA does not miraculously restore any constitutional rights; it merely props up the patient on new untested statutory crutches. Before asking anyone to support statutory free exercise, RFRA supporters have a solemn obligation to attempt to see, and remove, any hazards that lie beneath the surface of the Act. To do otherwise would be irresponsible. Mark E. Chopko is General Counsel of the United States Catholic Conference.
James Bopp, Jr. and Richard E. Coleson
In their Declaration, Professors Durham et al. urge support of RFRA. As some of the “well-meaning lawyers on the conservative side of the spectrum” (in our colleagues’ words) who “became suspicious” of RFRA, we offer the following response in defense of our position and to point out certain logical flaws in the argument of our esteemed colleagues. We oppose RFRA because it could be used to create a statutory “religious” right to abortion. Abortion rights advocates have asserted for years that there is a free-exercise-of-religion right to abortion, an alternative to the privacy theory relied on in Roe v. Wade. With support eroding on the Court for Roe’s privacy theory, abortion rights partisans are seeking other moorings for an abortion right. The “religious” abortion right has been asserted in major abortion cases, such as the ones challenging the abortion laws in Guam, Louisiana, and Utah. However, asserting such a right in this Supreme Court under the Constitution shows little promise for abortion advocates. This is so because the Supreme Court said, in Employment Division v. Smith, that states need not demonstrate a “compelling” interest to justify incidental burdens on religious expression resulting from neutral laws of general applicability intended to protect the public welfare. While the Court might not be hospitable to a free-exercise-of-religion abortion right under the Constitution, it would have little leeway to exclude a “religious” abortion right from the scope of RFRA. The solution is to amend RFRA (or enact alternative legislation) to exclude an abortion right. The danger posed by RFRA has been recognized by the organizations that have been most involved in the defense of pro-life policies in the courts, such as the National Right to Life Committee, Americans United for Life, and the U.S. Catholic Conference. A number of organizations, scholars, and legislators have expressed opposition to RFRA, some withdrawing previous support. These include William Bentley Ball (a long-acknowledged authority on free exercise of religion who won the landmark case of Wisconsin v. Yoder), the Rutherford Institute (specializing in free exercise and pro-life legal work), the Family Research Council (a division of Focus on the Family), and the Lutheran Church”Missouri Synod. Representatives Henry Hyde and Paul Henry (son of theologian Carl F. Henry), formerly prominent pro-life cosponsors of RFRA, have withdrawn their support, as have most other pro-life members of Congress. It should also be noted that the position of Durham and our other colleagues contains certain flaws. First, given the fact that abortion rights activists assert that a “religious” abortion right must be recognized, it is puzzling why we are under attack. Why are not our colleagues who support RFRA attacking the ACLU Reproductive Freedom Project, the Religious Coalition for Abortion Rights, and other abortion-on-demand advocates for insisting on a statutory basis for a “religious” right to abortion as the price they demand for support of RFRA? Yet not a word appears in the article of Durham et al. about the intransigent behavior of abortion rights advocates. Second, it is grotesque to concede that there is a “religious” right to abortion. Would we recognize a “religious” right to kill human beings simply because the killing constituted ritual human sacrifice? Of course there is no “religious” right to take human life recognized in our society. Abortion lacks even the religious aura of human sacrifice, yet there are now many organizations that argue there is a “religious” right to have an abortion. Shouldn’t pro-life people resist the notion that there is a “religious” abortion right rather than simply conceding it? Third, our colleagues presume that all rights are equal. But is that true? Is the right to life itself to be compared with a potential risk to certain forms of religious expression? At least in the eyes of the law, the right to life is the supreme right, the sine qua non, the right without which one has no other rights. Would it be right to sacrifice the right to life of unborn children to protect our right to religious expression without possible inhibitions? While Durham and company posit various ways in which religious liberty could be curtailed by neutral, generally applicable statutes affecting the public welfare, it should be noted that, at a minimum, persons so affected have a political remedy. Many belong to religious organizations with sufficient clout to gain exemptions to the laws. Others will gain such exemptions simply from the general decency of the people participating in the democratic process. And, of course, neutral laws of general applicability designed to protect the public welfare would not affect religious belief at all and would also not affect most religious expression. After all, the Smith case, from which these problems flowed, simply held that the Constitution does not protect in a special way partaking of hallucinogenic peyote. This is not to say that important religious expression could not be affected absent something like RFRA. It is to say that persons so burdened would have some democratic resources. By contrast, if a “religious” right to abortion is specially protected by law, the unborn will have no possible remedy. Fourth, in dramatizing the potential for burdens on religious expression absent RFRA, Durham and his fellow authors downplay the threat to the life of unborn children. For example, they claim that “religious” abortion rights “claims were routinely rejected even by pro-choice courts, even before Smith.” This is not accurate. Most courts did not reach the free exercise claims because they decided abortion cases on an abortion privacy theory before reaching other constitutional theories. That is different from rejecting the theory. However, at least one federal court has embraced such an analysis. See McRae v. Califano, 491 F supages, 630, 741-42 (E.D.N.Y. 1980). (On appeal the Supreme Court held that plaintiffs did not have standing to make this claim, not that the claim was rejected.) Moreover, it is clear that the “religious” abortion right claims would not be limited to the so-called “hard” cases, but would encompass large numbers of women. The threat is very real that other courts would recognize such a right under RFRA because, while RFRA “does not mention abortion” (as Durham et al. declare), there is no reason to think that the blanket language of the bill would not provide a basis for such claims, especially since key sponsors and supporters of RFRA have said unequivocally that RFRA includes a religious liberty right to abortion. A “proposed committee report” prepared by the “RFRA drafting committee” proposed the following language to be made part of the legislative history of RFRA in a congressional colloquy: “RFRA could not be invoked to challenge the bare existence of restrictive or permissive abortion laws, but it could be invoked by persons who for religious reasons wish to obtain, or not participate in, abortions where a law imposed contrary restrictions or obligations” (emphasis added). Samuel Rabinove, Legal Director for the American Jewish Committee, an organization among the most active in lobbying for RFRA, declared to the press that abortion for religious reasons is “a matter of religious belief and conviction” equal to other free exercise interests. Furthermore, one member of the “RFRA drafting committee,” Forest Montgomery of the National Association of Evangelicals, has opposed an abortion-neutral amendment because he believes it would be “unconstitutional” to exclude such claims under RFRA. Montgomery has taken the position that such claims are proper and opportunity to raise them should be preserved. With such arguments even from usual supporters of the pro-life position, a finding that the legislative history of RFRA supports assertion of a “religious” abortion right is likely. Moreover, refusal to exclude abortion from RFRA”not because the Act already excludes abortion but because we have to recognize “religious” abortion rights to keep a coalition together”would enhance the legislative history supporting abortion rights under RFRA. Some argue that a Supreme Court that overturns Roe would not be likely to accept another basis for “abortion rights.” However, there is no assurance that an RFRA abortion case would ever reach the U.S. Supreme Court, and many lower federal courts and state courts have already demonstrated hostility to abortion restrictions. Further, this argument confuses constitutional interpretation and statutory construction. If RFRA is enacted, a court considering a claim of a “religious” right to abortion would not be deciding the claim under the Constitution. The court would decide such a “religious” abortion right claim solely under RFRA, and the decision would be based solely upon the intent of Congress. This is demonstrated by the decision of the Supreme Court in the recent decision in International Union, United Automobile, Aerospace & Agricultural Implement Workers of America v. Johnson Controls, wherein the court considered whether a corporate policy of barring fertile women from jobs where they could be exposed to lead violated Title VII of the Civil Rights Act because it constituted sex discrimination. In striking down the policy, the Court declared: “Decisions about the welfare of future children must be left to the parents who conceive, bear, support, and raise them rather than to the employers who hire those parents. Congress has mandated this choice through Title VII, as amended by the Pregnancy Discrimination Act” (emphasis added). Given the already developed RFRA legislative history, more that would be developed, and the support of radical pro-choice legislators and groups for RFRA, there is a strong likelihood that the current conservative Supreme Court (if it considered an RFRA abortion case) would simply follow the will of Congress and interpret RFRA to include a “religious” abortion right. Durham and our other colleagues assert that even if a “religious” right to abortion is recognized under RFRA, the statute would require the state to show a “compelling interest” to restrict such “religious” expression. They claim that the Supreme Court will likely overturn Roe v. Wade soon on the basis that the states have a compelling interest in protecting unborn human life that outweighs a woman’s constitutional abortion right. They argue that, having found such a compelling interest with regard to the Constitution, the Court will find that interest applicable to “religious” abortion right claims under RFRA. However, assuming that the Court overturns Roe soon (as opposed to prolonged erosion of the decision). it is more likely to do so by declaring that there is no fundamental constitutional right to abortion than by recognizing a constitutional right to abortion but declaring that it is outweighed by compelling interests. Therefore, the Court might never reach a holding that there is such a compelling interest. Moreover, and more importantly, the sole question in litigation of religious claims against state abortion statutes would be what Congress intended. There is no evidence that the supporters of RFRA, most of whom support the radically pro-abortion Freedom of Choice Act, believe that there is a compelling interest eliminating a right to abortion. In fact, since they believe RFRA encompasses a “religious” abortion right, the conclusion must be that Congress finds no compelling interest limiting abortion, and the fact that the state of the law under Roe recognizes none would affirm this interpretation of congressional intent. Moreover, even if a compelling interest were found, there would be protracted litigation over whether every abortion statute meets the second part of the RFRA test, i.e., whether an abortion-restrictive statute is narrowly tailored to effect only the compelling interest. Last, Durham and company pose a false dilemma: “To demand amendments [such as one excluding abortion] would guarantee that RFRA will not be passed,” i.e., pass RFRA or risk losing your rights of religious expression. This has not yet been proven. Pro-life forces recently succeeded in winning an abortion-neutral Civil Rights Restoration Act. We need to expose the outrageous position of abortion rights advocates, who would hold hostage free religious expression in their pursuit of abortion on demand, and bring political pressure to bear on them, not the pro-life movement. Rather than supporting RFRA at any cost, some pro-life leaders are searching for alternatives. Top prolife leaders in the House of Representatives have introduced H.R. 4040, the Religious Freedom Act (RFA), an alternative to RFRA. While both acts would replace the Supreme Court’s current free exercise of religion analysis with an analysis more protective of religious expression, RFA would do so without risking the lives of unborn babies. The first cosponsors of RFA, introduced November 26, 1991, were Reps. Chris Smith (R-N.J.), Henry Hyde (R-Ill.), and Alan Mollohon (D-W.Va.). Eighteen more pro-life representatives, some of whom had previously supported RFRA, promptly became cosponsors. In sum, the risk to unborn children is real and grave. Pro-life people should not support RFRA as it now stands. We should not buy freedom from democratic control of certain forms of religious expression with the lives of unborn children. James Bopp, Jr. , a partner in the law firm of Brames, McCormick, Bopp & Abel (Terre Haute, Indiana), is General Counsel of the National Right to Life Committee. Richard E. Coleson , an associate at Brames, McCormick, Bopp & Abel, is General Counsel of Indiana Citizens for Life, Inc.
William Bentley Ball
Professor Durham and his colleagues are pro-life and pro-religious liberty. Their description of the evils of the Supreme Court’s Smith decision is as frightening as it is accurate. Perhaps their most important point is their stress on the relationship of the Smith decision to the protection of our traditional values”among these, of course, pro-life values. It is, however, important to note that the “broad spectrum” of supporters of the original Solarz version of RFRA to which they refer is balanced by other, equally enthusiastic, supporters of religious liberty”including the United States Catholic Conference, the Lutheran Church”Missouri Synod, and a great many other pro-life groups that are flatly opposed to RFRA unless it is amended. The authors imply that any attempt to amend the present (Solarz) RFRA proposal will kill the bill. But almost nothing gets through the Congress without amendment. Before we panic at the warning that our religious liberty is over and done with unless the proposed RFRA is kept scot-free of amendments, we should pause. Amending bills does not, contrary to the authors’ warning, typically lead to so many amendments that it becomes “impossible to stave off demands for other special amendments.” If that were so, we would never have legislative enactments. Everything depends on what members of Congress, and even more, the general public, think about the issues involved. There is usually a salutary give-and-take in the evolution of legislation. The authors’ warning that the Solarz version of RFRA must not be questioned is disturbing but unreal. In my view the present RFRA should be amended in respect to the one thing on which RFRA is centered: the concept of “compelling state interest.” RFRA as now drafted says that its aim is “to restore the compelling state interest test.” It also contains a section called “Definitions.” I would add to that section the following: “As used in this Act . . . the term compelling state interest’ includes the supreme interest of society in preventing the taking of innocent human life through abortion.” While the Solarz bill supporters will at once decry my proposal, saying that politically it will sink the RFRA, I would suggest the better approach would be first to examine the proposal on its merits, and only then weigh it politically. Political considerations aside, who would disagree with the foregoing exclusionary definition of “compelling state interest,” especially in view of our appalling national crisis”the killing of 1.2 million unborn human beings a year? Is it not strange to be talking about “compelling state interest” while ignoring that fact? Suppose that some cult in the nation were murdering masses of members of a targeted ethnic group each year. Suppose, further, that their religion justified this. Would anyone but the cultists object to an RFRA that would exclude such killings from the concept of “compelling state interest”? The authors might well answer “Yes. Since the claim to do so is religiously based, we must allow the courts to apply, even to the most bizarre religious claims, the compelling state interest’ test; we can’t create a law that discriminates among religions; all must have their day in court under standards affording equal treatment.” Without developing the point here, I can only say that if the term “religion,” as used in the First Amendment, is so loosely defined as to embrace a principle of killing innocent human beings, that definition should be deemed constitutionally invalid. (In Reynolds v. United States  the Court said that a religion that calls for human sacrifice has no constitutional protection.) The authors, however, tell us that religious claims for abortion would be few and, anyhow, readily dismissed. This is a highly dubious conclusion. First, since 1963, “religion,” in the First Amendment context, has been taken by the courts to be a very broad term. The Supreme Court, in Harris v. McRae (1980), strongly implied that if a woman opposing an abortion-restrictive statute could prove that it offended her religion, she would have standing to press that claim. If the Court overrules Roe v. Wade, or greatly limits its effect, it is to be expected that “abortion-right” groups will take widespread advantage of the broad avenue of religious abortion claims. If the Solarz version of RFRA is adopted, abortion-restrictive laws will have to cross the high “compelling state interest” hurdle when attacked on religious liberty grounds. Is it predictable that our judges will find such laws justified by such an interest? The reality is that a very large number of federal and state judges who have dealt with abortion cases over the past twenty years have come down with pro-abortion rights decisions even where Roe v. Wade did not require them to, and even where, years after Roe, Supreme Court rulings have plainly allowed various state restrictions on abortions. They have, in other words, been resolutely liberal in favor of pro-choice women and their pressure group sponsors. To repeat: who would oppose the definition of “compelling state interest” that I propose? Recent national polls (e.g., that of the Wirthlin Group in 1990) strongly indicate that a majority of Americans would answer “Yes” if the question were posed to them: “Do you believe that it is extremely important for our society to protect the innocent human life of the unborn from destruction by abortion, except in those rare instances in which the mother would lose her life?” That suggests an answer to the political claims of the authors (and the almost frenzied insistence of the Solarz supporters) that an RFRA containing the slightest mention of abortion could not fly. The proper political position of those eager to see adoption of an RFRA is to press the question to every member of Congress: If you agree with most Americans that it is terribly wrong to destroy unborn life, and if you are sincerely in favor of religious freedom, do you not support a bill that protects both? That question would provide not so much a picture of who supports abortion as of who really supports religious liberty. This would demonstrate, in vivid relief, the fact that RFRA has in major part been pushed by a coalition of religious groups several of whose concerns over religious rights is so secondary to their concern for abortion rights that they will hold RFRA hostage to their pro-choice agenda. That public exposure, in the face of the growing nationwide revulsion over abortion and over the strident tactics of the pro-choicers, should assure passage of an RFRA that protects liberty for all. William Bentley Ball, a constitutional law specialist, is a member of the firm of Ball, Skelly, Murren & Connell (Harrisburg, Pa.). He has argued major religious freedom cases before the United States Supreme Court.
Robert A. Destro
Even if the only problem with the Religious Freedom Restoration Act (RFRA) were its potential to give judges new excuses for legalizing abortion or revoking the tax exemptions of churches that do not toe a politically correct line, adopting RFRA in its present form would not be a good idea. But there is a far more substantial problem with RFRA. To borrow the words of Professor Durham and his colleagues, RFRA is itself “a mistake of both principles and tactics.” It is a mistake of principle because it does not, and by its very nature and terms cannot, “restore . . . the right [of all Americans] to carry out our duties to our Creator in accordance with our many religious faiths.” It is a mistake in tactics because playing “broad coalition” politics makes sense only when there is broad agreement regarding the nature of the problem to be solved. This is not the case with religious liberty questions. The questions surfacing within the RFRA coalition are a symptom of a much deeper problem in both the coalition and its brainchild. The judiciary, government bureaucracy, and private sector have indeed become increasingly hostile to legitimate religious liberty claims, but this was a problem even before Employment Division v. Smith. Legislative or private sector attempts either to accommodate religious believers, or to leave them blissfully alone, were also regularly ignored, challenged, or invalidated on non-establishment or statutory grounds. It is important to be clear: I wholeheartedly agree that something must be done to restore religious liberty to its appropriate constitutional status. But it is also important to be clear about the nature of the problem before proposing a solution, especially an open-ended one like RFRA. What is remarkable about the “broad spectrum” of individuals and organizations supporting RFRA is that they often find themselves at odds before the Court in religious liberty cases. What one faction within the coalition might perceive as a “free exercise” or “accommodation,” another will view as “an establishment of religion.” (The Equal Access Act is a good recent example.) The compromise language of RFRA itself bears witness to the lack of agreement among the coalition partners regarding the meaning of religious liberty, its status in the Constitution, its character and relationship to other liberties, and its role in a democratic society. In fact, the only thing the partners really do agree on is the importance of liberty in the lives of ordinary people. As a result, those who wrote the Act have deliberately chosen to leave the protection (and definition) of religious liberty in the hands of the very same black-robed shamans they charge with having made such a mess of it in the first place. RFRA’s operative provision”the “compelling state interest” test as understood prior to Employment Division v. Smith is an essentially standardless judicial balancing act that invariably produces discriminatory outcomes in free exercise cases. The only reason there is agreement on its use is that no one knows what it means. The courts have yet to define what makes a state or federal interest “compelling,” and like the late Justice Potter Stewart (who knew “hard core pornography” when he saw it), each member of the RFRA coalition can identify a “compelling” interest on sight. That, in fact, is precisely what Justice O’Connor did in Smith. Had the federal judiciary not undertaken the Herculean task of devising a set of constitutional rules that purport to define a “proper” or “ideal” relationship among a secular state, a community of institutions and believers that defines itself in religious terms, and a diverse mix of institutions and individuals that define themselves in a variety of nonreligious ways, we might not be in this fix But, unlike the framers of the Constitution itself, they tried”and here we are. After Smith, we are, democratically speaking, on our own. The Court has told us that if religious believers want exceptions from generally applicable laws, those exceptions must be defined by our elected representatives. For those who have grown accustomed to placing their faith in the ability of the United States Supreme Court to keep religious freedom within what they view to be constitutionally tolerable bounds, the sudden transition to participatory democracy comes as quite a shock. (Hence, the concern about tax exemptions.) Others, the RFRA “skeptics,” are not surprised. Smith was the culmination of a trend, not its beginning. So if ever there was a need for clear thinking about religious liberty, it is now. RFRA advocates have done a good job of shifting the blame for the sorry state of policy governing religious liberty onto the Supreme Court. I would argue a different proposition: that the late Walt Kelly’s cartoon character Pogo had it right. “We have met the Enemy, and it is us!” The federal judicial role in shaping societal attitudes toward religious liberty is significant, but not controlling. Though it can make cases easier or harder to file through manipulation of the rules of standing, and though its decisions affect public perception, the Supreme Court is not ultimately responsible either for the general lack of respect for religious freedom and diversity in all levels of society, or for specific acts of government officials that violate our civil rights. The fact that things are so bad when litigants do get to court points to a failure of vision and leadership on the part of the activists and academicians on whom the courts rely for guidance. Judicial decisions reflect the philosophical disarray within the ranks of their self-styled amici curiae. Thus change begins, as a recent best-selling self-help book suggests, with consideration of the sage words of Albert Einstein: “The significant problems we face cannot be solved at the same level of thinking we were at when we created them.” It is time, I submit, to take responsibility. If we want to protect religious liberty, we should do so explicitly. Laws can and should be written so that there is no doubt whatever as to either the scope or the applicability of the religious liberty guarantee. RFRA, by contrast, guarantees only litigation. Its explicit affirmation of the pre-Smith case law affirms a multitude of bad practices, while doing little to help those who really need it. (It would not even help Mr. Smith.) What it does do is enable members of the coalition to continue blaming the judiciary. Like Russian apparatchiks, American advocates of religious liberty have come to appreciate the benefits of central planning. There are clear winners and losers in litigation; one need only get five votes to win; and the losers pay your attorney’s fees! In a democracy, neither outcomes, alliances, nor political support can be taken for granted”especially if the issue is as important as religious freedom. The task is even more formidable when, as here, there can be no compromise on principle. We who advocate for religious liberty are at a disadvantage of our own making in the political arena. We have failed to make the case that freedom of religion and conscience are just as essential to the functioning of a democratic society as freedom of speech and the press. We have failed to make protection of religious liberty a political issue in its own right because of the “religion in politics” bugaboo, and we have permitted the media and “minorities” (however defined) to claim the politics of the First Amendment as their own. Now we are paying the price. So if there is to be legislation protecting religious liberty, the coalition must either reach some agreement on an appropriate definition of the concept (including its relationship to the free exercise, non-establishment, and equal protection guarantees), or fall apart. Only then will its members be prepared to enter the political “marketplace of ideas” and sell their respective visions of the common good. A clear message should not be very hard to sell either. The First Amendment itself is the product of an American public that is now, and has always been, religiously committed to religious liberty. Though much of the public is today shamefully ignorant about the place of religion on the scale of constitutional values and in the daily lives of many religious minorities, the sheer number of statutes protecting religious belief and practice currently on the books demonstrate that public instincts are good. The public is not the problem. It is the coalition that is divided over the meaning of religious liberty. Unlike Solomon, whose wisdom was demonstrated by a threat to cut a child in two, the Supreme Court and some members of the coalition seem to believe that freedom of religion can survive if sliced into two political principles set in opposition (“tension”) to one another: “freedom from” (the Establishment Clause) and “freedom to” (the Free Exercise Clause). Section 7 of RFRA would enshrine that “tension” in the statute law of the United States by doing precisely what Professors Durham et al. suggest: “enact[ing] only the principle of free exercise” and leaving the rest to litigation. Under current Establishment Clause doctrine, their proposal will guarantee that religiously based claims for accommodation will continue to be subordinated to the interests of an increasingly aggressive secular state. The irony is that the only justice who has written eloquently about the nature of this problem is Justice Scalia. Though his decision in Smith has been widely condemned as nothing less than the “repeal” of the Free Exercise Clause, I believe that his critics (who should know better) are trying to hold the hearer of bad tidings responsible for their own lack of vision. Justice Scalia performed two significant public services in Smith. First, and most important, he told the truth. By the time Smith was argued and decided, religious liberty as an independent constitutional value was already a dead letter. The “hybrid” cases that survived Smith prove the point: religious liberty interests can be protected only by describing the liberty involved as one the Supreme Court does take seriously. Further incantation of the phrase “compelling state interest” in Smith could not revive the corpse. RFRA’s incantations cannot “restore” it either. The real culprits are the justices who view themselves as the guardians of what Justice Blackmun has called “secular liberty.” The rationale of Justice Brennan’s opinion in Texas Monthly v. Bullock (1989), which held that legislatively enacted religious exemptions from generally applicable laws are unconstitutional, made the result in Smith inevitable. Though different in form from the drug-policy exemption sought in Smith, the tax exemption for religious publications invalidated in Texas Monthly was no different in substance: it cost the state money, and made it easier for religious individuals and organizations to practice their religion. The only difference between Smith and Texas Monthly is the theory of the case. The result, however, was identical: religious liberty lost. Justice Scalia’s dissent in Texas Monthly (joined by the Chief Justice and Justice Kennedy) is a ringing endorsement (and I use the term deliberately) of protecting religious liberty for its own sake”a course that would be forbidden by RFRA.
Just as the Constitution sometimes requires accommodation of religious expression despite not only the Establishment Clause but also the Speech and Press Clauses, so also it sometimes permits accommodation despite all those Clauses. Such accommodation is unavoidably content based”because the Freedom of Religion Clause is content based.Scarcely the words of justices who are antagonistic to religious liberty, these lines suggest two alternative ways of responding to the decision in Smith: (1) passage of specific exemptions to laws identified as burdensome to religious belief or practice; or (2) legislation making it clear that in cases of arguable conflict with other liberties (including the nonestablishment guarantee), free exercise should be given priority. But there would be a problem with either of these alternatives under Section 7 of RFRA. In their attempt to preserve the status quo ante Smith, the drafters also propose that Congress affirm the view that the Establishment Clause limits, rather than complements, the Free Exercise Clause. In Texas Monthly Justice Scalia described the problem as follows:
The machinery employed by the opinions of Justice Brennan and Justice Blackmun is no more substantial than the antinomy that accommodation of religion may be required but not permitted . . . By saying that what is not required cannot be allowed. Justice Brennan would completely block off the already narrow “channel between the Scylla [of what the Free Exercise Clause demands] and the Charybdis [of what the Establishment Clause forbids] through which any state or federal action must pass in order to survive constitutional scrutiny.” The proper lesson to be drawn . . . is quite different: If the exemption comes so close to being a constitutionally required accommodation, there is no doubt that it is at least a permissible one.Since it is a virtual certainty that laws providing exemptions specifically designed to accommodate religion will be challenged under the Establishment Clause by some members of the “broad coalition” supporting the RFRA and supported by others, the Court will be forced to make a choice between their competing visions of religious liberty. So my first suggestion for Professor Durham and his colleagues is this: stop pointing the finger at your natural allies. The problem lies not with the suspicion of those condescendingly described as “the well-meaning lawyers an the conservative side of the spectrum [who] became suspicious,” but with the members of the coalition who will walk out if the non-establishment and equal protection components of religious liberty are put on the table for discussion. Their institutions and individual members are the least likely to find their moral principles (religious or otherwise) “in conflict with the doctrines of the secular state,” and, given the present imbalance in the law, it is they who have the most to gain under RFRA. Take Section 7 out of RFRA as proposed, and there is room for constructive (albeit difficult) negotiations. Leave it in, and RFRA will be a guaranteed disaster for religious liberty. Like the “hair of the dog” after an evening’s binge, RFRA seems useful as a short-term remedy only because the alternative is so unappealing. It makes no difference in the short term that the Free Exercise Clause, as interpreted by the Court, provides no refuge. The cases filed by advocates of “traditional values” invariably lose anyway. Perhaps we should seize the moment, take heart from the Ninth Amendment (“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”), which assures us”just as it did the framers themselves”that we need not live with a crabbed federal vision of our rights, and pass legislation specifically designed to protect religious freedom. When our (former) coalition “partners” sue to have the legislation declared unconstitutional, we can respectfully urge the justices to tell us which liberty prevails: the specific (religious) or the general (that of “substantive due process”), and for whom: “minorities” (however defined), or everyone. Only then will we find out if religious liberty, equal protection, and the Ninth Amendment are really dead, or merely in a judicially induced coma. That is why my final suggestion to Messrs. Durham et al. is that they should face facts and admit that RFRA is the product of an unholy alliance of convenience and necessity, not principle. The issue here is not abortion or taxes, it is the flawed vision of religious liberty written into RFRA itself. Justice Scalia has argued, correctly, that “it is not right”it is not constitutionally healthy”that [the] Court should feel authorized to refashion anew our civil society’s relationship with religion, adopting a theory of church and state that is contradicted by current practice, tradition, and even our own case law.” Unless and until the members of the coalition are prepared to discuss the entire panoply of religious liberty issues under the Constitution, they should do nothing. The First Amendment’s admonition that “Congress shall make no law” makes a lot of sense when the alternative is “to enact only the principle of free exercise, and to leave all disputes about applications of the principle to litigation.” A crabbed judicial view of religious liberty is what got us into this mess in the first place. It will most certainly not get us out. Robert A. Destro is Associate Professor of Law at the Catholic University of America.
Raul F. Yanes and Mary Ann Glendon
Our misgivings concerning the proposed Religious Freedom Restoration Act arise from the fact that it would perpetuate two seriously mistaken understandings about the religion language of the First Amendment just at a time when a Supreme Court majority seems on the verge of working its way out of the doctrinal morass that their predecessors created from the 1940s through the 1970s. The misunderstandings to which we refer are, first, that the amendment contains an “establishment clause” and a “free exercise clause” that are at odds with one another; and, second, an excessively individualistic view of religious freedom that neglects its associational and institutional dimensions. Many supporters of RFRA have been vigorous critics of decisions produced by the artificial division between the free exercise and establishment provisions in religion clause case law. Yet RFRA would tend to lock in the deep sources of the interpretive trends that friends of religious freedom and traditional values have found most disturbing over the years. The Constitution’s religion language reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . . “ The Supreme Court’s misinterpretation of these words began in the 1940s when the Court first applied the Constitution’s religion guarantees against the states. Before that time, the language had restricted only the federal government, and the states had been left with a free hand in regulating church-state interaction. The initial religion cases considered by the Court in the 1940s were framed as individual free exercise claims. In these early cases, the Court employed a balancing approach, weighing the infringement on an individual’s interests in being free of state interference against the burden that an exemption would place on the state’s regulatory interests. The Court had no occasion to, and did not, consider in any depth the connections and interplay between the free exercise and establishment provisions of the religion clause. The issue of the applicability of the First Amendment’s establishment language to the states did not reach the Court until after it had proceeded for several years as though free exercise and establishment had no necessary connection with one another. By that time, the Court was susceptible to the argument that the establishment provision represented its own independent set of values, a set of values sloganized in a phrase that is nowhere to be found in the Constitution: separation of church and state. With little or no support from text, history, or tradition, the Court proceeded to introduce three new ideas into religion clause jurisprudence: that the establishment provision was meant to create a “high and impregnable wall of separation” between religion and the government, that it was to be broadly construed to prohibit all government aid to religion, and that government was required to be strictly neutral as between religion and nonreligion. Historical scholarship has since exposed the lack of foundation for these interpretive flights, but not before they had become deeply entrenched in the case law. The simplistic “wall” metaphor, by positing separationism as an end in itself, drove a wedge between the free exercise and establishment provisions and created the appearance of tension between them. The free exercise language was read to require the government to act (or not) in certain ways so as to protect religious freedom. The establishment language, in contrast, was read to require government neutrality towards and separation from all things religious. These two doctrines were logically inconsistent and, not surprisingly, produced largely separate, irreconcilable bodies of case law. The establishment provision, originally meant to be in the service of religious freedom, was thus turned against it. What seems to have paved the way for this remarkable inversion of meaning was the inability of Court majorities to grasp that, for millions of Americans, religious freedom is “exercised” within worshipping communities. The justices lost sight of the fact that the religion language of the First Amendment protected individuals’ free exercise, not only when they were alone, but in their religious associations and institutions. During the 1960s, the Warren Court adopted the strong “compelling interest” test for free exercise cases that RFRA now seeks to restore. This test required the government to produce strong justification for any law that infringed an individual’s free exercise right. At the same time, however, the Court continued to undermine religious freedom by taking separationism to absurd extremes in what it characterized as establishment cases. (Consider Aguilar v. Felton  where the Burger Court struck down a Great Society program that for nineteen years had operated successfully to provide remedial services to impoverished special-needs students in New York City’s public and private schools.) Thus the Court’s apparently strong commitment to free exercise was quite limited in scope, for during the 1960s and 1970s Court majorities usually gave a narrow construction to free exercise, neglecting its associational and institutional aspects. These important dimensions of religious freedom further suffered from the Court’s broad construction of the establishment language. The net effect was to regularly subordinate the free exercise of religion to the policy of enforcing a rigid separation of church and state. The Warren and Burger Courts occasionally deviated from this course in order to protect the associational free exercise of members of small religious groups. But they were much more rigorous in their application of separationist principles against religions with larger followings. Happily, a majority of the members of the current Court now appear to have concluded that the religion jurisprudence of the past fifty years is seriously flawed and in need of rethinking. Not so happily, five of the justices subscribed in Employment Division v. Smith to an approach that seemed to represent a drastic curtailment of free exercise protection. A broad coalition of persons concerned about religious freedom therefore joined in supporting legislation that would require the Court to return to its pre-Smith approach under which governmental authorities could not restrict “any person’s free exercise of religion” absent a “compelling interest.” But by providing that nothing it contains will affect the “establishment clause,” RFRA freezes into statutory form the interpretive error that the First Amendment contains two “clauses” with divergent purposes that are often in tension. And the reference to “any person’s free exercise” tends to obscure the fact that for many individuals, free exercise has a social dimension. If we shared the view that Smith does in fact represent the decisive abandonment by the Court of judicial responsibility for protecting free exercise rights, we would be more sympathetic to the effort that RFRA represents. Reasonable friends of religion and traditional values differ, however, in their assessment of the significance of Smith. In our view. Smith does not constitute the Court’s definitive new approach to the religion language of the First Amendment. The case law is in a period of flux, as the Court reexamines a body of law that took over forty years to reach its present tangled state. We believe and hope that Smith’s apparent insensitivity to free exercise concerns will come in time to be understood as mainly explicable in relation to the particularly important public purpose implicated by the case (the war on drugs). If we are correct, Smith is a detour, rather than a landmark, on the way to a more coherent interpretation of the First Amendment. In this light, RFRA would be a substantial impediment to the comprehensive reexamination of religion clause case law that the Court now seems prepared to undertake. By locking in the flawed assumptions of the past, RFRA would diminish the chances that the Court will at last proceed to read the two religion provisions together in the light of their overarching purpose to protect freedom of religion. It is only by explicitly rejecting the artificial division between the “free exercise” and “establishment” language and by rethinking the case law based on the crude w