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The Des Moines Register
Monday, July 7, 1997, Page 6A
letters@news.dmreg.com
Restoring the first freedom
The Supreme
Court needs to undo
its mistake on religious 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