The Des Moines Register
Monday, July 7, 1997, Page 6A

Restoring the first freedom

          What may have been the most important ruling of the U.S. Supreme Court's just-concluded term almost got lost in the recent last-minute flurry of opinions. The case, City of Boerne vs. Flores, Archbishop of San Antonio, exposed a deep division among the nine justices on the high court over the meaning of the Constitution's guarantee of free exercise of religion.
          The struggle goes back to a 1990 ruling that two Oregon drug counselors could be fired by the state because they chewed peyote -- which is illegal -- even though the men used the drug as part of religious ceremonies.
          Prior to the peyote decision in a line of cases going back 30 years, the court had consistently said government could not, without "compelling reason," infringe upon the free exercise of religion. Those rulings upheld the rights of individuals who, for religious putposes, would not work on the Sabbath, or, in the most famous of these cases, the old-order Amish who refused to send their children to state-run schools.
          One could reasonably argue that Oregon had "compelling" reason to fire drug counselors who knowingly violated that state's drug laws, and leave it at that. But the court in 1990 went further: in a wholly gratuitous swipe at its historic deference to religious freedom, it said no compelling reason was necessary. As long as the state law banning peyote chewing was "religiously neutral" and applied to all Oregonians without regard to their religion, it would pass constitutional muster, even if it infringed the religious beliefs of individuals.
          University of California law professor Jesse Choper at the time called the peyote decision "the demise of the free exercise clause" of the First Amendment. Religious leaders were stunned. And Congress responded with a bill whose title made no effort to hide the legislation's intent: The "Religious Freedom Restoration Act" was written to overturn the 1990 Oregon peyote decision by declaring that no law may infringe on the free exercise of religion without "compelling justification."
          "Take that, Supreme Court!" the lawmakers seemed to say. And the court replied by striking down the Religious Freedom Restoration Act. It is the job of the court, not the Congress, to say what the Constitution means, the justices said.
          In justifying the religious-freedom act, Congress invoked its powers under the 14th Amendment, which states that "no state shall ... deprive any person of life, liberty, or property, without the due process of law;" and that "Congress shall have power to enforce, by appropriate legislation, the provisions of this article."
          But the court said Congress went too far. "Legislation which alters the meaning of the free exercise clause cannot be said to be enforcing the clause," Justice Anthony Kennedy wrote for the court. "Congress does not enforce a constitutional right by changing what the right is.
          Congress has legitimately invoked its power under the 14th Amendment to address state actions that violate citizens' constitutional rights, as in the case of voting-rights acts that outlawed state statutes designed to prevent blacks from voting in Southern states. But, in the absence of evidence of widespread religious persecution, the court said the Religious Freedom Restoration Act sought to fix a problem that does not exist.
          There is not much to dispute in the court's reasoning. It's just unfortunate it had to come to this point where not only has a body of constitutional protection of religious rights been junked, but Congress appears powerless to do anytbing about it.
          What the court should have done in this case is take the opportunity to reverse that awful 1990 Oregon peyote decision. That is precisely what Justice Sandra Day O'Connor suggested in a lengthy dissent that traced the history of religious freedom in America. As O'Connor wrote in conclusion to her dissent, "The religion clauses of the Constitution represent a profound commitment to religious liberty. Our nation's founders conceived of a republic receptive to voluntary religious expression, not of a secular society in which religious expression is tolerated only when it does not conflict with a generally applicable law."
          The Des Moines Register, Monday, July 7, 1997, Page 6A