Coalition Considers Ways To Broaden Religious Rights
After court's decision, a constitutional amendment is one possible alternative to the Religious Freedom Restoration Act
For religious Americans, especially those of minority denominations, an air of uncertainty hangs over the right to practice their faith.
Will Jehovah's Witnesses once again be forced to take a loyalty oath as a condition for employment in California? Will a Presbyterian church in Washington now have to close a feeding program for the homeless that violates local zoning laws?
The Supreme Court lobbed a figurative bomb into the middle of this nation's already-hot debate over religious rights last week when it declared the 1993 Religious Freedom Restoration Act, or RFRA, unconstitutional. That law sought to limit the government's ability to interfere in religious practice. The court said Congress overstepped its authority in passing that law.
Some legal scholars argue that the pre-RFRA standard will provide ample protection for the religious. But a broad coalition of more than 60 religious advocacy groups and churches that fought for the law's passage - including the Christian Science Church, which publishes this newspaper - disagrees. Members, who will meet today, are weighing options for how to put in place a higher standard, one that requires that the government have a "compelling interest" to restrict religious practices. The options include:
* A constitutional amendment. Back-of-the-envelope drafts are already circulating. One idea is simply to redraft RFRA into constitutional language.
* Fifty "mini-RFRAs." Go state by state and pass them either as laws or as state constitutional amendments.
* A new federal law. Write one that attempts to address the Supreme Court's problems with the current RFRA.
* Pursuit of legal cases that could eventually reach the high court and serve as a vehicle for overturning the 1990 case that caused activists to initiate RFRA in the first place.
The first option, a constitutional amendment, would be impervious to Supreme Court challenge. But constitutional amendments are very difficult to pass. Proponents of the idea argue that RFRA has such wide support in Congress and among the public that an amendment might be achievable.
The key would be to maintain its universal appeal. Attempts to link a RFRA amendment with existing proposals for a school-prayer amendment would alienate many in the coalition. Some oppose the notion of an amendment in general, not wanting to tinker with the Constitution.
But advocates of an amendment argue that if ever there was an issue that had strong support in Congress, it's this one. The House passed the bill unanimously, and the Senate by a margin of 97 to 3.
Further, some in Congress may be emboldened by the court's sharp rebuke.
"This comes in the midst of an interbranch struggle in the government over the allocation of federal power" over a variety of issues, says Kevin Hasson, president of the Becket Fund for Religious Liberty. "So the Supreme Court, having thrown down the gauntlet, has increased the likelihood Congress will respond with force."
Sen. Orrin Hatch (R) of Utah, a lead sponsor of RFRA, is already working behind the scenes on Capitol Hill, figuring out the best way to proceed.
New federal legislation would be easier to pass than a constitutional amendment, but could have the same problems passing constitutional muster as RFRA. One idea is to tailor laws to address the needs of particular religious groups, but because so many religions are practiced in this country, many laws may be needed, and some groups whose practices are outside the mainstream may have a hard time gaining congressional support.
The option of 50 mini-RFRAs would have the benefit of addressing the Supreme Court's objection that a federal RFRA usurped states' rights. But going state by state would be cumbersome.
The final option, bringing new cases that would allow the court to reconsider the religious-freedoms issue, is a long shot. The six justices who declared RFRA unconstitutional are firm in their beliefs, say court-watchers, and would not be inclined to overturn the 1990 decision known as Employment Division v. Smith. In that case, which spawned the movement for RFRA, the court rejected two native American men's religiously motivated use of peyote, an illegal hallucinogen.