Court ruling reduces religious liberty

Saturday, June 28, 1997

You may have missed it, but religious liberty in public schools suffered a serious blow this week. The Supreme Court struck down as unconstitutional the Religious Freedom Restoration Act (RFRA), a law passed by Congress in 1993 to prohibit the government from substantially burdening the free exercise of religion.

This is bad news for religious parents with children in public schools. Under RFRA, school officials had to take parental requests for accommodation on religious grounds very seriously. Now some of the pressure's off.

Take, for example, the Sikh family in California who wanted to send their son to a public high school wearing a small ceremonial dagger in spite of the school's “no weapons” policy. During the court battle that followed, all sides agreed that school officials had compelling reasons for keeping all weapons out of the school. But the court agreed with the parents that the school's interest in safety could be preserved if the dagger — which all adult male Sikhs are required to wear—were riveted into its sheath (making it impossible to use as a weapon) and worn underneath the student's clothes. Without RFRA, the Sikh family would have lost that case.

A little history: Congress passed RFRA to restore religious-liberty protections taken away by a 1990 Supreme Court decision. In that decision, the court said that religious people could no longer challenge general laws that had the side effect of greatly burdening their faith. In other words, the government no longer had to show a compelling reason in order to burden the free exercise of religion. RFRA was Congress's way to reinstate the “compelling state interest” test the Supreme Court had knocked down.

Now that RFRA is gone, religious parents will have a tougher time getting accommodation. But they still have a good chance of prevailing, for two reasons.

First, even without RFRA parents and students still have the right to free exercise of religion under the First Amendment. Many teachers and administrators will routinely grant requests for excusal when parents make them on religious grounds. A common example is the parental request for a child to be excused from a particular lesson or classroom activity. Sure, the school has a compelling interest in teaching Sally to read. But giving Sally an alternate assignment for one book or a few stories is a good way to accomplish the school's educational goal while still protecting Sally's religious liberty. As long as the request is focused on a specific discussion, assignment or activity, such requests should be granted by schools under the First Amendment.

Second, parents may also appeal to another constitutional right: the right of parents to control the upbringing of their children, including their children's education. True, some lower-court decisions seem to ignore or minimize this right. But it has been recognized by the Supreme Court.

Free exercise of religion joined with parental rights is a powerful combination. In its opinion overturning RFRA, the court stated that the “compelling state interest” test may be resurrected for use when free-exercise claims are linked to at least one other constitutional right. Public schools, therefore, are still well-advised to make every effort to accommodate the needs and requirements of religious students and parents.

Trying to accommodate religious claims in public schools can be time-consuming and sometimes frustrating for educators, especially as our nation's religious diversity continues to expand. But it is well worth the effort, because it is the right thing to do. Religious liberty — freedom of conscience — is the bedrock of all American freedoms.