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Richard John Neuhaus has joined the chorus of those singing a lament to the death of religious liberty (“Polygamy, Peyote, and the Public Peace,”October 1990). The cause of the choir’s mournful tune is the Supreme Court’s decision in the so-called peyote case, Employment Division v. Smith. In that case, Justice Antonin Scalia, writing for himself and four other members of the Court, knocked religious liberty off its rightful pedestal as the “first freedom” and relegated it to the position of a dependent afterthought. As a proponent of the importance of religion in public life, Neuhaus is right to be concerned, even outraged.

At the same time, he must feel a little uncomfortable standing alongside some of the other members of this particular, and rather peculiar, chorus. True, Justice O’Connor is there; she concurred in the result of the case but severely criticized Scalia’s reasoning. But Justices Brennan, Blackmun, and Marshall are also there; they dissented. Neuhaus does not often find himself in harmony with that wing of the Court. And outside the Court, the variety of the voices condemning Smith becomes downright interesting. There’s the National Council of Churches of Christ in the U.S.A., the National Association of Evangelicals, Concerned Women for America, Agudath Israel, Union of American Hebrew Congregations, National Drug Strategy Network, United Methodist Church, American Humanist Organization, the Baptist Joint Committee, Americans United for Separation of Church and State, the Evangelical Lutheran Church in America, Association on American Indian Affairs, American Jewish Committee, People for the American Way, American Jewish Congress, and even the American Civil Liberties Union.

The list is not complete. Many other groups and individuals have joined the dirge—too many to list here—and together they represent an immense (“broad” is too limited a word) cross section of American society. Now the members of this strange coalition have decided that the time for lamentation is over; it is time for action. They have made up banners that read “The Religious Freedom Restoration Act” and they are running toward the constitutional trap Justice Scalia set for them.

The Religious Freedom Restoration Act (RFRA) has been introduced in the Congress. The bill’s express purpose is to overturn by legislative action the Court’s decision in Employment Division v. Smith. This does not mean the bill would decriminalize the use of peyote by Native Americans as a religious sacrament, which was what the Smith case was about. In fact, the RFRA would do nothing to reverse the effect of that decision on the Native Americans affected. The goal of the Act is much broader—it is supposed to create a “statutory right” that will restore religious freedom in the United States. This miracle will occur, according to the sponsors, “without tampering with the Bill of Rights.”

This congressional effort to correct the Court’s misguided reinterpretation of the First Amendment is understandable, but the method is probably unconstitutional, and definitely dangerous. It is precisely the sort of legislative control over religion that the Smith opinion invites. Justice Scalia must be surprised, and a little amused, that the proposed “solution” to the problem be has created is the very result he welcomed:

It may fairly be said that leaving accommodation [of religion] to the political process will place at a 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.

Richard Neuhaus calls this sentence from the Smith opinion “one of the more chilling, not to say callous, observations in the history of the Supreme Court.” He recognizes the danger in “throw[ing] what were previously thought to be constitutionally protected rights to the will of the majority.” Why, then, are so many diverse religious, political, social, and legal groups turning to Congress, to the political process, to the “will of the majority” for relief from Smith, while claiming to seek protection for the rights of religious minorities?

Having posed the question, it is in actuality impossible to discern the motivations of each of the diverse groups backing the RFRA. Their constituencies are too dissimilar, their agendas too varied, their usual goals too different, even conflicting. What seems most likely is that each of the member groups in this eclectic coalition has different, possibly contradictory, expectations of what the legislation will accomplish. If that is the case, and if the RFRA becomes law, then most of those supporting the Act are going to be disappointed with its results.

One possible result of Congress adopting, and the President signing, RFRA is that it will be declared unconstitutional. The bill says that Congress or any other “governmental authority may restrict any person’s free exercise of religion . . . ” and then sets out a test that such restrictions must meet. The test is addressed below, but this statutory language must first be compared to the wording of the First Amendment itself:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the government for a redress of grievances.

It is difficult to imagine a more obvious violation of the ban against laws “prohibiting the free exercise” of religion than a law that specifically allows such restrictions, even if there are some limits to the authority of governments to enact them. A lawsuit challenging the RFRA would seem to be an easier case for the Supreme Court to resolve than were the recent “flag-burning” cases. With the RFRA, the Court will need no interpretive maneuvers to find religion constitutionally protected as it did to find small fires covered by the phrase “freedom of speech.” So the RFRA, if it comes to that, will probably be declared unconstitutional. If it is not (if Justice Scalia’s quoted proposition regarding legislative accommodation is upheld), religious liberty may suffer even more than as things now stand.

If the RFRA did survive constitutional attack under the First Amendment, it would be because the Act does contain some express limitations on governmental authority over religion. According to the bill, any restriction on the free exercise of religion is valid only if:

(1) it is in the form of a rule of general applicability; and
(2) it does not intentionally discriminate against religion, or among religions; and

(3) the governmental authority demonstrates that application of the restriction to the person”

(a) is essential to further a compelling governmental interest; and

(b) is the least restrictive means of furthering that compelling governmental interest.

This test is being praised by the backers of the RFRA as duplicating the “compelling state interest” standard that the Supreme Court applied to free exercise cases before the Smith decision. This claim raises at least two concerns.

First, it is not a constitutional standard, it is a statutory formulation. Being statutory, it is subject to the whim of future Congresses. It can be modified or eliminated, broadened or narrowed, depending on how each session of the legislature wants to interpret the statute. The courts, in applying the statute, would be required to determine legislative intent, not constitutional mandate, and those are two very different things. If Congress declared that something is a “compelling state interest,” that declaration, being an expression of legislative intent, would necessarily prevail. With a statutory formulation, there is no basis for courts to make independent constitutional (and presumably less biased) appraisals of those concerns that compel Congress to act.

This brings us to the second and more important reason that enacting a statute resembling the Court’s free exercise test does not bode well for religious freedom. The fact is that when courts have applied the “compelling state interest” standard in the past, religiously required exemptions from laws of general applicability have not done well at all. That this is true was forcefully documented in a recent dissenting opinion written by Judge John Noonan of the United States Court of Appeals for the Ninth Circuit. The 1988 case in which Judge Noonan’s opinion appears is E.E.O.C. V. Townley Engineering Company, a case in which the Equal Employment Opportunity Commission successfully prevented a company from requiring employee attendance at weekly devotional services in the plant on company time. Judge Noonan points out that the employee was not required to participate in or even listen to the services; he then recounts the historical record of free exercise claims under the Court’s “compelling state interest” standard:

Remarkably and regrettably when Congress has found a national interest to be of sufficient importance to be incorporated into federal legislation and that legislation has conflicted with the free exercise of religion, the Supreme Court of the United States has uniformly found the national interest to outweigh the claims of conscience and permitted Congress to prohibit the free exercise of religion in conflict with the legislation.

This dismal record applies not just to the Supreme Court but to other federal courts as well. Attached to the opinion is a lengthy appendix of additional cases where free exercise claims have been rejected by the courts. Judge Noonan proffers one possible explanation for the results in these cases:

Secular men and women take secular values seriously. Men and women of the world believe that the world’s business is important. When Congress elevates this business to a national priority it has been all too easy for officers of the government and even judges to ignore the countervailing command of the Constitution.

And they have used “compelling state interest” to justify their denial of constitutional guarantees. Yet the groups pushing the RFRA want to enact that test into law and leave its interpretation and application to those same “officers of the government” who have thus far shown no preference for religious liberty.

Two centuries of judicial interpretation of the United States Constitution have demonstrated that when the Supreme Court veers off course in a particular case or series of cases, continued constitutional litigation over the issue involved serves to correct their heading. An opinion that is too broadly stated, such as the Smith opinion, gets narrowed by subsequent opinions in related cases. An opinion based on a unique factual situation, such as sacramental use of peyote during a national drug epidemic, gets distinguished from other cases involving different circumstances. Sometimes a Supreme Court case, maybe the Smith case, just gets ignored in subsequent opinions as though it never occurred. And occasionally, as with the infamous Dred Scott decision or with Roe v. Wade, a case is decided so wrongly that it is or eventually will be overruled.

It is not a perfect system, this process of constitutional adjudication, but it has worked, does work, and will continue to work for the preservation of our constitutional rights. It never works as fast as those immediately affected need it to, but legislative fixes are not fast nor are they permanent. They require interpretation and application through the same judicial system, and they can be modified or eliminated at any time by the legislature that enacted them.

One of the primary objections to the Religious Freedom Restoration Act is that its enactment into law would terminate the process of constitutional litigation over the application of the Free Exercise Clause. Subsequent religious freedom cases would be decided under the RFRA, not the Constitution. Courts avoid constitutional decisions whenever a case can be statutorily resolved. This means that cases seeking to limit, distinguish, ignore, or overrule Smith would never get their constitutional claims addressed. The courts would simply apply the RFRA with its “compelling state interest” test, and, if history is any guide, the claims of religious liberty would lose. In the meantime, the case of Employment Division v. Smith would be forever enshrined as the Supreme Court’s last word on the Free Exercise Clause—a chilling prospect indeed.

One encouraging sign that lower courts will find ways to protect religious freedom in spite of Smith appeared as recently as last August in Minnesota in a case entitled State of Minnesota v. French. Relying on the 1888 U.S. Supreme Court opinion in Maynard V. Hill—an opinion which characterized marriage as “the foundation of family and society, without which there would be neither civilization nor progress”—the Minnesota Supreme Court observed that:

This generation does not have a monopoly on either knowledge or wisdom. Before abandoning fundamental values and institutions, we must pause and take stock of our present social order: millions of drug abusers; rampant child abuse; a rising underclass without marketable job skills; children roaming the streets; children with only one parent or no parent at all; and children growing up with no one to guide them in developing any set of values. How can we expect anything else when the state itself contributes, by arguments of this kind, to further erosion of fundamental institutions that have formed the foundation of our civilization for centuries.

The argument “of this kind” being advanced by the State of Minnesota was that a landlord’s exercise of his sincere religious beliefs, by refusing to rent to an unmarried cohabitating couple, constitutes “marital status” discrimination for which the landlord should be punished. Questioning how the State could have a “compelling interest” in protecting an activity that violates its own fornication statutes, the court overturned administrative and lower-court determinations that had assessed civil fines against the landlord for compensatory damages and for allegedly causing mental anguish to the unmarried couple who wanted to rent his house.

When confronted with federal constitutional arguments by the State based on the Smith decision, the Minnesota court deftly sidestepped the issue. “In light of the unforeseeable changes in established first amendment law set forth in recent decisions of the United States Supreme Court,” the court said, “justice demands that we analyze the present case in light of the protections found in the Minnesota Constitution.” The State’s own constitution, the opinion then declared, “treats religious liberty as more important than the formation of government.”

Does this mean that we should now turn to state constitutions exclusively for protection of fundamental American freedoms? No, but it does illustrate that the courts are capable of responding to the demands of justice despite one Supreme Court opinion to the contrary. The Religious Freedom Restoration Act can only hinder that uniquely judicial process. Judge Noonan says that when weighing “the claims of Congress” against the claims of religious liberty, there should not be “a tilt in favor of Congress.” Justice Scalia has now put his thumb on the legislative side of the scale; instead of removing the imbalance, the backers of the RFRA are effectively saying that they are willing to try to use those scales themselves. Can there be any doubt who is going to get short-weighted in this exercise?

(Richard John Neuhaus replies in “The Public Square.”)

Phillip H. Harris, an attorney, is Solicitor of the United States Catholic Conference in Washington, D.C. The opinions expressed in this article are his own and do not represent the opinion or position of the Conference.