Useless to resurrect Religious Freedom Restoration Act, professor says

Wednesday, October 7, 1998

Congressional and state legislative efforts to pass religious-liberty protection laws are a waste of time and will ultimately prove worthless, a constitutional law scholar charges.

Tom McCoy, a professor at Vanderbilt University, told an audience yesterday at The Freedom Forum First Amendment Center in Nashville that the only way to bolster protections of religious liberty from government interference is for the U.S. Supreme Court to reverse its 1990 ruling in Employment Div., v. Smith.

In Smith, Justice Antonin Scalia, writing for the majority, ruled that under the free-exercise clause, a law that burdens religious practice need not be justified by a compelling governmental interest if the law is neutral and applies to all.

The First Amendment guarantee of religious liberty had never been understood to mean “that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate,” Scalia wrote.

The Smith decision, McCoy said, was a “mistake that dismantled much of the protections against government interference of religious practices.” Before Smith, the high court had used a “balancing approach” to determine whether government laws or actions infringed upon a person’s free exercise of religion, McCoy said. He said that pre-Smith courts weighed the government and societal interest in a law against the religious practice it allegedly impinged upon.

“In 1990, the court in Smith effectively ruled that if government interferes accidentally with religious practice, then there is no First Amendment violation,” McCoy said. “The problem is that accidental interference with religion happens all the time. Governmental regulations and benefit programs are designed by the majority with secular objectives that inevitably impact on minority religions that the majority was oblivious to.”

At the same time that McCoy lambasted the high court, saying “the Supreme Court screwed religious liberty up in Smith,” he also called legislative attempts to correct Smith wrong-headed. Nonetheless, McCoy added that “because Smith seems counter to common sense and appears wrong to most” in academia, it should not be surprising that a large coalition of organized religions and civil rights groups formed to write the Religious Freedom Restoration Act of 1993.

The Coalition for the Free Exercise of Religion drafted RFRA and lobbied Congress to pass it. McCoy said the act was an “attempt to bar accidental interference with religion by government.” The act required that government actions or laws which substantially infringed upon a religious practice be justified by a compelling interest. Furthermore, government had to show that it used the least-restrictive means possible to uphold the law.

RFRA, however, was invalidated as applied to states last year by the U.S. Supreme Court. It was struck down, McCoy said, because “Congress passed something it did not have the power to pass.”

Since RFRA’s demise, the coalition has mounted a two-part strategy that McCoy said remains flawed.

The coalition has gone back to Congress with a re-written RFRA, this time called the Religious Liberty Protection Act of 1998, or RLPA. RLPA is much more limited than RFRA, however. RLPA, which is pending in the House and Senate Judiciary committees, would apply only to government programs or actions supported by federal funds. In other words, any federal action involving money that happens to impinge upon a person’s free exercise of religion would have to be justified by a “compelling government interest” and could not excessively restrict the religious practice.

The second part of the coalition’s strategy involves pressuring the state legislatures to enact what McCoy called “mini-RFRAs.”

Both RLPA and the “mini-RFRAs” would run into the same kinds of problems as RFRA did, McCoy warned. The proposed laws are all worded similarly and attempt to codify the “compelling interest/least restrictive” means test, which has been described by Supreme Court justices as the most stringent legal test known to constitutional law.

“Nearly never can the government meet the test,” McCoy said. “The net effect of these laws would be to create an exemption from a vast array of government health and safety laws for religious persons.”

McCoy echoed Justice John Paul Stevens’ concurring opinion in Boerne v. Texas – the 1997 high court decision that invalidated most if not all of RFRA.

“Congress and the states in attempting to codify the test are actually passing laws that favor religion over nonreligion,” McCoy said. “Both the federal and state initiatives are preferential treatment of religion – which would violate the establishment clause.”

Stevens, concurring with the majority in Boerne, called RFRA a “governmental preference for religion,” that is “forbidden by the First Amendment.”

John Seigenthaler, founder of the First Amendment Center, asked McCoy from the audience what should be done to correct the mistakes of Smith, if the coalition’s efforts were indeed flawed.

Smith “needs to be overturned,” McCoy said. He called on the coalition to cease “investing time in legislative fixes and to bombard the high court with free-exercise cases.”

“I hold out hope that eventually enough of the justices will realize that Smith should be dismantled,” McCoy said.

He added that the high court’s 1993 decision in Church of Lukumi Babalu Aye v. Hialeah, showed that the justices were displeased with Smith.

The court in Hialeah did not strike down a law that was neutral, but one that it found to be targeted against religion. In Hialeah, the high court invalidated a Florida city council ordinance that barred animal sacrifice for religious reasons. The Hialeah City Council called an emergency session and passed the ordinance shortly after learning that a Santeria church would soon start operating in the city. The Santeria faith uses animal sacrifice as one of its main forms of devotion.

According to McCoy the decision should have been easy to state. The case involved a government action specifically targeting religion and therefore was a “per se” violation of the free-exercise clause of the First Amendment. Instead of brief opinions quickly reaching an obvious conclusion, McCoy said the justices produced lengthy essays on their displeasure with Smith.

Justice David Souter, in a concurring opinion in Hialeah, said such “per se” government violations are “a rare example of a law actually aimed at suppressing religious exercises.” Souter said that the typical free-exercise claim involved laws applying to everyone.

Marci Hamilton, a constitutional law scholar and professor at Yeshiva University in New York, questioned McCoy’s characterization of Smith and Hialeah.

The characterization of Smith as limiting protections for religious liberty is oversimplified, Hamilton told firstamendmentcenter.org.

Smith has not been sufficiently scrutinized by lower courts since the introduction of RFRA, Hamilton said. “Moreover, we already have a regime of speech cases where a government law that is not aimed at the content of speech receives a lower level of scrutiny. I see the same similarities in Smith. A general law of applicability should not require the government to meet strict scrutiny.”

Hamilton added that Souter was the only justice in Hialeah to deride Smith as a mistake.

“The justices said the parameters of Smith were correct — that is to say that general laws will tend to pass constitutional muster and laws that discriminate because of religion will be subject to the strictest of scrutiny. Hialeah bore out the dictum in Smith.

Finally, Hamilton said that even if general laws are the ones that most often interfere with religion, “we have to remember why we have such a vast number of laws – to protect against wife and child abuse,” as well as many other safety and health dangers.

“My practical experience over the last five years has persuaded me that religious persons are not harmed by having to go to the legislature and ask for permission to violate a general law,” Hamilton said. “Every day I find out a new interest that could be hurt by permitting religion to trump generally neutral laws.”

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