The high court and the incredible shrinking free-exercise clause

Sunday, March 20, 2005

Like the very air we breathe, most Americans take religious freedom for granted — until, of course, someone starts to cut off our supply.

That’s exactly what has happened over the past 15 years. With little attention from the press and no outcry from the public, the U.S. Supreme Court has handed down rulings that many legal scholars believe have largely erased long-standing protections for the free exercise of religion.

Tomorrow, the justices hear another case — Cutter v. Wilkinson out of Ohio — and the outcome could be the most devastating blow yet to religious liberty in America. If the Supreme Court upholds the 6th U.S. Circuit Court of Appeals, the establishment clause of the First Amendment would be interpreted to mean that government can’t pass laws to accommodate religious freedom.

How have these cases gone largely unnoticed in a nation where so many people say they take religion seriously — and where so many are pressing for religious symbols in the public square?

Let’s start with the fact that most of the religious-liberty cases decided by the Supreme Court involve minority religious groups that most people don’t understand (or don’t like). Cutter, for example, won’t win friends and influence people for the First Amendment because it involves prison inmates who follow unconventional (to put it mildly) religions such as Asatru (a polytheistic faith) and Satanism.

So what if prisoners don’t have access to religious literature or worship — didn’t they commit a crime? Who cares if Native Americans can’t use peyote in their religious services — don’t we have a drug problem in this country? And why worry about the freedom of Jehovah’s Witnesses to solicit door-to-door — aren’t they a nuisance?

Most people in majority or mainstream religions don’t pay much attention to free-exercise cases — until some law or regulation strikes close to home. Then they are first in line to invoke the First Amendment. When zoning laws, for example, are used to prevent church construction or expansion, some of the largest religious groups quickly re-discover the free-exercise clause.

Now add to the mix the convoluted nature of the legal arguments over the meaning of “free exercise” these past 15 years. Most of the news media has little patience with complexity — and many Americans tune out the legalese.

Truth be told, the free-exercise clause has long been the poor step-sister to the establishment clause. Symbolic church-state battles over “under God” in the Pledge and displays of the Ten Commandments get all of the attention because of the emotions they stir on all sides. But if you care about religious liberty, the free-exercise cases are the ones to watch.

To understand what’s at stake in Cutter, we need to return briefly to 1990 when the Supreme Court’s ruling in Employment Division v. Smith greatly reduced protections for free exercise of religion. In Smith, two Native Americans were denied unemployment benefits by the state of Oregon because they were fired for using peyote in their worship. Under a test used by the Supreme Court for decades before Smith, Oregon would have been required to show a “compelling state interest” in denying Native Americans a religious exemption from the anti-drug laws.

But in deciding the Oregon case, the Court changed the test. No longer would the government have to show a compelling state interest before denying a request for accommodation regarding a law that applied to everybody (as long as the law didn’t target religion). In other words, as long as Oregon bans peyote use for everyone — not just Native Americans — the state doesn’t have to grant or even consider an exemption for religious use.

Since most readers probably don’t need a religious exemption for drug use, let’s look at another scenario. Nathan Diament of the Union of Orthodox Jewish Congregations offers this stark example: “If a state outlawed all alcohol consumption for those under age 21 and made no exceptions for wine at Mass or Sabbath, a devout Catholic or Jew could not succeed in challenging that lack of exception as infringing on their Free Exercise rights.”

Alarmed by the sweeping implications of the Smith decision, Congress in 1993 passed the Religious Freedom Restoration Act (RFRA) in an effort to restore a high level of protection for free exercise. RFRA required all levels of government to show a compelling state interest before denying a claim for religious exemption from a general law. Four years later, the Supreme Court struck down RFRA as it applies to states, ruling that Congress had over-reached its powers.

Not to be outdone, Congress (supported by a broad coalition of religious and civil liberties groups) tried again with another law in 2000 — the Religious Land Use and Institutionalized Persons Act with the unpronounceable acronym RLUIPA — narrowly targeted to apply the compelling-interest test to zoning laws and the rights of prisoners and other institutionalized people. The Ohio prisoners in the Cutter case invoked RLUIPA, arguing that prison officials had no compelling reason (such as safety or discipline) to deny them access to religious literature and the opportunity to conduct worship services.

Last year, the 6th Circuit ruled in Cutter that RLUIPA violates the establishment clause because “by enacting RLUIPA, Congress itself has advanced religion by giving religious prisoners a preferred status in the prison community.”

If the Supreme Court upholds the 6th Circuit and strikes down RLUIPA, many other laws passed by all levels of government to accommodate religious practice could be invalidated under the establishment clause. In other words, laws designed to protect religious freedom could be struck down as violations of the First Amendment — a strange twist that would render the free-exercise clause almost meaningless.

Do you enjoy breathing the sweet air of religious freedom in America? Then inhale deeply — while you still can.

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