High Court To Rule on Religion Law

'93 Measure Protecting Acts of Faith Produces Hundreds of Lawsuits

By Joan Biskupic
Washington Post Staff Writer
Wednesday, October 16 1996; Page A01
The Washington Post

The Supreme Court yesterday accepted what promises to be a momentous case on religious freedom, involving the constitutionality of a 1993 federal law that makes it far more difficult for government to infringe on religious practices, even when they violate local statutes.

The law is among the most far-reaching protections of religious activity ever passed by Congress and has been put to a variety of uses since its 1993 enactment -- by churches seeking exemptions from zoning requirements, by prisoners requesting they be allowed to wear certain clothes, by landlords wanting to avoid fair housing requirements if they deny apartments to unmarried couples.

State and local officials say the law has colored their dealings with religious believers of all faiths and incited turmoil in prisons from nearby Lorton to the Far West. As evidence of the legal strife it has created, they note that it already has generated more than 200 lower court cases nationwide, about half involving prisoners.

Called the Religious Freedom Restoration Act, the law was enacted to counter a 1990 Supreme Court decision that allowed certain infringements on religious beliefs and practices.

By agreeing to take the new case, the justices will not only reenter the enduring battle between church and state, but could produce a landmark decision on Congress's powers to reverse the effects of a high court ruling.

While backers of the law say it protects America's diverse religious interests, opponents claim it infringes on the authority of states and municipalities and forces them to be unnecessarily tolerant.

"The [law] is a bold and unprecedented example of federal social policy engineering that commandeers the states . . . to accommodate religion more than the Constitution requires," Marci A. Hamilton, lawyer for the city of Boerne, Tex., said in a petition to the court.

The city sought to stop a local Catholic church from enlarging its 1923 revival mission-style building in a historic district. The archbishop of San Antonio, P.F. Flores, successfully challenged the denial, relying on the 1993 law to make his case.

"The church was turning people away from Mass because the church building was too small," Douglas Laycock, lawyer for the archbishop, said yesterday.

The city's refusal to allow the expansion, he said, "infringed on people's right to practice their religion."

When Congress passed the law it was responding to a 1990 ruling that an individual's religious beliefs do not excuse him from complying with otherwise valid laws, so long as those laws are being applied to all citizens in a neutral and general way.

That case involved two Native Americans who were fired at a private Oregon rehabilitation center after they ingested peyote, a cactus that contains the hallucinogen mescaline, during a religious ceremony. The state denied the men unemployment benefits based on the fact they engaged in illegal drug use. The two men, asserting their religious rights had been violated, won in lower state courts, but the Supreme Court ruled against them.

Writing for the five-justice majority, Justice Antonin Scalia refused to use a test from earlier cases that required a state to prove it had a "compelling interest" in enforcing a statute that infringed on religious practices.

That test put more of the burden on governments to defend regulations that interfere with religious beliefs.

In the weeks and months following the decision, a diverse coalition of religious and civil liberties groups lobbied Congress to reverse effects of the ruling, saying it would particularly hurt smaller religions whose interests might not be understood by legislatures.

"When a law begins to infringe on a church, no matter how incidentally, that is not consistent with religious liberty," said Laycock, a University of Texas law professor involved in pressing Congress to overturn the ruling in Employment Division v. Smith.

In 1993, Congress overwhelmingly approved and President Clinton signed the Religious Freedom Restoration Act.

The central provision of the law attempts to write into statute what the court refused to find in the Constitution.

It says government may interfere with religious practices only if it can demonstrate the regulation or action in question furthers a "compelling governmental interest" and is the least restrictive means of furthering that interest.

In the case of City of Boerne v. Flores now before the justices, the U.S. Court of Appeals for the 5th Circuit rejected claims Congress had overstepped its authority when it passed the law.

The appeals court said Congress correctly relied on Section 5 of the Fourteenth Amendment, which says Congress "shall have power to enforce, by appropriate legislation, the provisions" of the amendment protecting against state infringement on individual rights.

The appeals court also rejected the city of Boerne's arguments Congress had breached state sovereignty and crossed the line separating church and state.

In Boerne's appeal, supported by 16 states, the city stressed there are limits to Congress's exercise of so-called Section 5 powers and it is the court, not federal lawmakers, who are arbiters of the breadth of constitutional protections.

Locally, the statute has spurred numerous lawsuits. In June, a federal district judge in Maryland ruled the law is unconstitutional in connection with the Archdiocese of Baltimore's efforts to demolish an abandoned monastery in Cumberland that city officials wanted to preserve. The case is on appeal to the 4th Circuit.

In another case, a federal judge in the District relied on the law to overrule the D.C. Zoning Board after the board refused to allow a Foggy Bottom church to run a soup kitchen that neighbors had protested.

Prisoners also have used the law to claim they need special accommodations to fulfill religious traditions. Fears of such litigation allegedly led guards at the District's Lorton Correctional Complex to allow visitors posing as religious missionaries to meet unsupervised with prisoners. It was later revealed the visitors were smuggling drugs into the prison.

Oliver Thomas, special counsel to the National Council of Churches and one of the leaders who pressed Congress to pass the law, said yesterday the Texas dispute was a good one for the high court to take up.

"It's not one of those cases involving some Satan worshiper in a federal prison," he said. "This is a small congregation that has so many people they can't fit in the sanctuary. It's about as pristine a case as you could come up with."

The case is likely to be argued in January and decided by July.

Separately yesterday, the justices without comment rejected an appeal by pathologist Jack Kevorkian of a lower court ruling that bars him from helping terminally ill patients commit suicide.

Earlier this month the court announced it would use two other cases to decide whether mentally competent, terminally ill patients may seek help from their doctors in hastening death.

The court yesterday also agreed to rule on whether states may tax the income of hospitals run by employee welfare benefit plans and whether a Florida state Senate district was unlawfully drawn along racial lines to favor blacks.

Staff writers Debbi Wilgoren and Laurie Goodstein contributed to this report.

Copyright 1996 The Washington Post Company