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Congress’ power argued in RFRA case before court

WASHINGTON (BP)–Did Congress overstep its authority when it passed the Religious Freedom Restoration Act in order to correct what it considered an erroneous Supreme Court decision regarding the free exercise of religion?

The high court heard debate over that issue in Feb. 19 oral arguments involving a Roman Catholic church’s use of RFRA to battle a city government’s refusal to allow expansion of its worship facility.

RFRA was proposed and adopted in response to a 1990 Supreme Court opinion, Employment Division v. Smith, in which the justices ruled government no longer has to demonstrate a “compelling interest” before restricting religion. After the Smith decision and prior to RFRA’s enactment, critics of Smith said it was easier for the government to limit religious expression.

Signed into law by President Clinton in November 1993, RFRA requires a government body to demonstrate a policy serves a “compelling interest” and is the “least restrictive means” in fulfilling the government’s interest before restricting the free exercise of religion. The bill gained overwhelming bipartisan support in both houses of Congress.

Since RFRA’s enactment, some state and city governments have complained about the law’s effect, often citing an extra burden caused by a variety of religious claims made by prisoners.

The challenge to RFRA arrived at the high court in the case of City of Boerne v. Flores, a dispute involving the proposed expansion of the St. Peter Catholic Church building in Boerne, Texas. The city refused a permit for such work, citing the building’s location in a historic district and the building’s distinctive architecture.

A federal judge ruled in the city’s favor, but the Fifth District Court of Appeals upheld RFRA.

In the oral arguments, several justices seemed concerned about Congress’ action, with Associate Justice Anthony Kennedy seeming to be fearful RFRA could be a violation of the establishment clause.

“This case is not about religious liberty; it is about federal power,” Marci Hamilton, attorney for Boerne, told the justices. RFRA is a “brazen attempt to reinterpret the free exercise clause,” she said.

Congress “had no factual record to show” as the basis for enacting RFRA, Hamilton said.

Jeffrey Sutton, the state solicitor of Ohio, echoed Hamilton in some of his arguments against RFRA.

Congress “can’t show” a “record of violations. … (Y)ou can’t have a remedy without a wrong,” he said.

Doug Laycock, attorney for the Catholic diocese and a law professor at the University of Texas, told the justices, “Congress has always understood it has the power” to extend constitutional rights beyond what the court says is protected.

When asked by Associate Justice Sandra Day O’Connor about the many claims of prison inmates, Laycock said, “We all know prisoners file frivolous claims.”

RFRA is Congress’ “attempt to apply the compelling interest test across the board,” Laycock said.

Associate Justice John Paul Stevens said he was not sure “we understand what compelling interest means even” in the Smith case.

Walter Dellinger, acting U.S. solicitor general, said the case “does not require the court to break any new ground.”

Without RFRA, minority religious groups will be constantly discriminated against, Dellinger said. He said the legislative record showed 800 pages of testimony from marginal religious groups that had found difficulty in getting accommodations for their religious exercises.

After the arguments, Laycock told reporters a high court rejection of RFRA would mean for the average person “that every religious liberty claim becomes vastly more complicated to litigate. You have to examine everything the city has done in all sorts of comparable situations to try to prove discrimination. It would be more expensive for everybody. It would be harder to win.”

Brent Walker, general counsel of the Baptist Joint Committee, one of the leaders of the broad-based coalition supporting RFRA, said, “We’re just tilting the playing field back to where it should be. We will be operating under a standard that we lived with for some 30 years prior to the Smith decision in 1990. So there’s nothing revolutionary going on here. We’re simply returning to a way of operating … that protects and preserves religious freedom the way the founders intended.”

Ohio’s Sutton told reporters RFRA has caused a “litigation nightmare when it comes to prisons. Since RFRA was enacted, we’ve got roughly 60 or 70 cases pending in Ohio. Not one of them has been resolved yet.”

Hamilton said RFRA “forces every government in this country, local, state or federal, to accommodate every religious believer. It is a privileging that is unconstitutional under the establishment clause.”

Laycock said in response to reporters, “There a constitutional right to freely exercise your religion. She wants to take that away. She wants churches to be pervasively regulated in the same way that auto dealers are pervasively regulated. We don’t think that’s what the Constitution means.”

The Southern Baptist Christian Life Commission joined onto the brief filed by the coalition defending RFRA. In addition to the CLC and BJC, other organizations in the 60-member coalition include the National Association of Evangelicals, the ACLU, the American Jewish Congress and the Christian Legal Society.

“After the first half-hour, I felt good,” said Forest Montgomery, NAE’s general counsel who observed the arguments. “After the second half-hour, I felt bad. So I don’t think there’s a way to predict what the court’s going to do in this case.”