1990 case left religion vulnerable to government intervention

Sunday, March 5, 2000

When the Supreme Court severely weakened protections for the free exercise of religion in 1990, the public barely noticed. But now land-use disputes in many towns have alerted Americans to just how vulnerable to government intervention and control our religious rights are.

Oregon citizens got their wake-up call in January when city officials in Portland decided to limit attendance to 70 people at a Methodist church built to hold 400. The city also revoked the land-use permit allowing the church to serve two weekly meals.

Why? Because neighbors complained that the church's programs attracted homeless people to the neighborhood.

Similar complaints led officials in a town near Houston to order a church to shut down. The town claims that it can do this because the church doesn't have the operating permit required by city ordinance.

Meanwhile, the zoning board of a Massachusetts town has informed the Mormons that they can't build their temple with a spire because of height restrictions. City officials tell the church that they see no religious reason for the spire.

What's going on here? If the First Amendment guarantees free exercise of religion, how can the government decide how many people may worship in the sanctuary or what kinds of services a church may offer to help the poor? Who gave the government power to issue operating permits to houses of worship? And since when are government officials the arbiters of whether or not church architecture is “religious”?

To find the answers to these questions, we need to revisit history. Prior to 1990, government had to show a “compelling interest” before it could deny a religious claim for exemption from a particular law such as a zoning or land-use ordinance. But then, in Employment Division v. Smith, the Supreme Court held that burdens on religious exercise no longer require justification if they are the unintended result of laws of general application.

In response to Smith, Congress in 1993 attempted to restore the compelling-interest test by passing the Religious Freedom Restoration Act. But in a 1997 zoning case involving a Texas church, the Supreme Court struck down the act as unconstitutional, declaring that Congress had overstepped its authority.

Eight states have now passed their own Religious Freedom Restoration Acts to give religion added protection. But in most parts of the nation, religious objections to generally applicable laws are failing in the courts.

Where does this leave religious groups faced with governmental intrusion? In the case of the Methodist church in Oregon, city officials appear ready to back down in response to widespread public outcry. But unpopular groups and minority faiths won't be so fortunate.

The bad news for religious freedom is that, until the Supreme Court reverses Smith, we'll see more and more examples of religious practice restricted by governmental action. This is precisely what James Madison sought to prevent when he argued for full religious liberty in Virginia more than 200 years ago.

“The Religion then of every man,” he wrote, “must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.”