How much protection does religion need?

Christian Century, July 15, 1998 by Marci A. Hamilton

In June congress held hearings on the Religious Liberty Protection Act of 1998 (RLPA). The new bill represents an attempt to breathe new life into the Religious Freedom Restoration Act (RFRA), which was declared unconstitutional by the Supreme Court a year ago. Like RFRA, RLPA aims to correct the Supreme Court's 1990 ruling in Employment Division v. Smith, which critics believe rendered an incorrect interpretation of the Constitution's free-exercise-of-religion clause.

In the Smith case, the court held that state-paid drug counselors who had lost their jobs for using peyote--an illegal narcotic--could be denied unemployment compensation benefits even though they had used the drug as part of a Native American religious service. In a now-famous formulation, the court declared that the Constitution does not require government to make exceptions for religious conduct if the law regulating the conduct is "generally applicable" and "neutral." The court added that extreme care should be taken whenever a law discriminates against religion, and that though it is not constitutionally required for government to accommodate religious conduct, government could accommodate such conduct in particular circumstances.

In the debate generated by Smith these details have been ignored. Religious lobbyists have been most rankled by Smith's general holding. Their arguments run something like this: We live in a society of pervasive regulation in which bureaucrats run a vast number of government programs and implement many laws. These bureaucrats are either indifferent or hostile to religion; therefore religions need extra protection in order to get a fair shake when general laws substantially affect (or, in legal terminology, burden) religious conduct. Religious lobbyists cite as evidence zoning laws that make it difficult for churches to expand or move; laws requiring autopsies that offend certain religious groups; and school dress codes that fail to accommodate religious sensitivities and beliefs.

The Coalition for the Free Exercise of Religion, an organization of 80 religious and civil liberties groups, led the fight for RFRA and now leads the battle for RLPA. The coalition recommends its own antidote to Smith. Whenever a person's religious conduct is constrained or limited by a generally applicable, neutral law, the government must accommodate that religious believer unless it can prove that the law addresses a compelling interest on the part of the government. Even then such a governmental interest must be satisfied through the least restrictive means.

The coalition claims that government has operated under such restraints for a long time and that RFRA would not have added any new benefits for religion. But in its decision invalidating RFRA the court stated explicitly that it had not employed the "least restrictive means" test in eases that involve generally applicable, neutral laws. The requirement that government prove that its law is the least restrictive means for each particular religious believer is in fact new and extremely burdensome. If constitutional, it would give religions new power to trump the day-to-day laws that govern everyone else. The "compelling interest" part of RFRA'S test had been used in some cases, but by no means all of them. Prisons, for example, had not been required to prove that they had a compelling interest for a safety regulation that affected religious conduct, such as prohibiting the wearing of religious jewelry or regulating hair length.

RFRA would have subjected every local, state and federal law to the "compelling interest" and "least restrictive means" test. In the end, the Supreme Court struck the law on the grounds that it violated both the separation of powers and states' rights. According to the separation of powers, Congress may not reverse the Supreme Court's interpretation of the Constitution or amend the meaning of the free-exercise clause through simple majority vote. In light of states' rights, Congress cannot require local governments to abide by strictures that are extraordinarily more demanding than those of the Constitution. Rather, according to Section 5 of the 14th Amendment, Congress may "enforce" constitutional guarantees. Because RFRA attempted to create new rights rather than enforce existing ones, the court declared that Congress exceeded its own power in enacting it.

The new measure before Congress, RLPA, attempts to regain as much of RFBA's scope as possible. It mandates the same "compelling interest" and "least restrictive means" test (I will call this test "superstrict scrutiny") in eases in which government substantially burdens religious conduct. In a nod to the court's declaration that Congress could not create new constitutional rights against the states, RLPA is tied not only to the 14th Amendment but also to Congress's powers to spend and govern commerce. Hence RLPA mandates superstrict scrutiny when religious conduct is substantially burdened in eases involving an activity that receives government financial assistance or eases involving commerce. In other words, wherever the federal government's dollars go, and wherever commerce exists, the RFRA/RLPA burden follows.