Religious Liberty on Trial in Texas

A FEDERAL law intended to protect the free exercise of religion goes on trial in New Orleans tomorrow in a case with important implications for religious liberty in the United States.

It will help determine whether Congress has the power to safeguard religious practices similar to other civil rights, or whether they exist in a special category that only the US Supreme Court can touch.

The case, which is being closely watched by churches and legal scholars, stems from a seemingly innocuous dispute in dusty Boerne, Texas.

It arose when attendance at St. Peter's Roman Catholic Church began to overflow. To deal with the problem, the church petitioned the city to rebuild. The city said no. It felt St. Peter's imitation Spanish architecture, popular in the 1920s, was a candidate for historic preservation. It suggested church officials build elsewhere.

Somewhat stunned, and after an offer to keep the original facade in a rebuilding plan, the Most Rev. P.F. Flores, Archbishop of San Antonio, filed suit against the city. He based his case on the Religious Freedom Restoration Act (RFRA) - federal laws passed in 1993 to protect the free exercise of religion.

A district court judge in west Texas, not only agreed with the city, he found the entire act of Congress unconstitutional.

Congress exceeded its authority, the judge argued, in creating a mechanism to protect religious liberty. Invoking the famous Marbury v. Madison "separation of powers" ruling, he stated that only the Supreme Court determines First Amendment issues of church and state, and religious accommodation.

Since its passage, RFRA has been seen as a pioneering safeguard by the religious community. Yet the statute is now being challenged in courts across America. Tomorrow's case before the US Fifth Circuit Court of Appeals in New Orleans is the most significant of those challenges.

"Congress has never tried anything this drastic with the First Amendment before," says Marci Hamilton, a constitutional scholar at the Benjamin Cardozo School of Law in New York. "They have never attempted themselves to become the protectors of religious liberty."

Religious freedoms, however, are "too important to be left to only one branch of government," says Douglas Laycock, who will argue the case for St. Peter's. "Congress is not doing anything different in RFRA than it did in passing the Voting Rights Act" - legislation in the early 1960s used to ensure that blacks in the South had the right to vote.

Underlying the RFRA case is the 1992 US Supreme Court decision of Employment Division v. Smith. In Smith, which caught the American religious community by surprise, the high court ruled that the state of Oregon had the right to outlaw a native American religious ceremony that included the use of peyote.

So shocked were religious leaders to learn the extent to which the Smith precedent restricted religious exercise that they lobbied Capitol Hill for a law to trump the Smith decision.

RFRA was the result. The act specifically states that individuals could claim exemptions in their practice of religion. RFRA required the state to prove a "compelling interest" before it restricted forms of religious exercise.

Flores v. Boerne is the most visible of several RFRA cases bubbling up through US courts. Challenges are pending in the Fourth Circuit Court in Virginia over an inmate desiring kosher food, and the Eighth Circuit Court, where a Lakota Indian inmate wants accommodations for hair length and special rites. On Nov. 13, the 10th Circuit Court in Colorado hears a case pitting the Alpine Christian Fellowship group against county government.

Boerne is the first case, however, where the constitutional basis of RFRA has been challenged.

In constitutional terms, the main challenge in Boerne is not religious liberty per se. Boerne is a federalism case - testing whether Congress overreached its powers under the 14th Amendment's "equal protection" clause. In recent years, equal protection has been considered a civil right in cases of race, employment, gender, and other forms of discrimination.

Boerne is arguing that state and local decisionmakers are beholden to the Supreme Court in deciding issues of religion; Congress may not invoke Section 5 of the 14th Amendment (giving Congress the power to enforce civil rights) in cases of religious liberty, the city argues. The Texas district court agrees.

Arguing in favor of RFRA, the US Attorney General's Office strongly disagrees. Boerne's reading of the 14th Amendment is "cramped and unprecedented," the federal brief says, wrongly assuming that "when it comes to enforcing fundamental 14th Amendment rights, Congress is a mere bystander."

In its broadest terms, the Boerne case exposes an important strategic issue for American churches. Almost without exception, the goal of churches and denominations has been to overturn the Smith decision. The question is how. On this point, sympathetic scholars are divided.

On one side are scholars who feel that religious protections from Congress may feel good in the short term but contain many long-term pitfalls. Ms. Hamilton argues that RFRA creates the illusion that religious freedoms have been expanded. The safeguards that RFRA restores were rarely useful in actual cases, she argues, and will in effect "shield" the Supreme Court from having to review the Smith decision, prolonging the time before it can be overturned.

On the other side are scholars who regard RFRA as an imperfect solution, but as the only one available. Given the makeup of the Supreme Court and a lack of good cases in the area of religious accommodation, "It's folly to believe that Smith is about to be reversed," says Mr. Laycock. "In the meantime, people need help out there."