Narrowing Free Exercise

The Supreme Court's rejection of the Religious Freedom Restoration Act this summer means that religious individuals and institutions have lost a significant line of defense. We'll see this, for example, when Orthodox Jewish beliefs that don't allow autopsies clash with local laws requiring them. Or when a church seeks to open a soup kitchen and local residents try to use zoning regulations to stop it.

Experts say the potential impact on people of faith is immense. At first it will be most obvious among small or unpopular religious groups and prisoners, for whom the act helped ease access to religious programs or expressions of faith. Oliver Thomas, special counsel to the National Council of Churches, notes the contrast between the court’s broad protection of free speech and the narrowing protection of free exercise of religion. "Religion," Thomas said, "has been moved to the back of the constitutional bus."

A controversial "Religious Freedom Amendment" was introduced in Congress last spring, supported mainly by political conservatives and some conservative Christian groups. The amendment is currently being rewritten in the wake of the Supreme Court’s ruling. Its authors seek to address what they feel to be too rigid or broad an application of the establishment clause of the First Amendment, which prevents the government from endorsing or co-opting one religion.

If adopted, a religious freedom amendment might allow audible, state-sanctioned prayer in public schools, official placement of religious symbols on government property, and the use of tax money for private religious schools. These are highly controversial possibilities, not only for civil liberties groups—who decry what they see as a lowering of the wall between church and state—but for many faith-based groups as well.

But the true risk isn’t what government might do for religion, but what it might—however unwittingly—do against religion. This threat is related to an ongoing back and forth between the Supreme Court and Congress on how broadly the free exercise clause of the First Amendment (meant to prevent government from blocking religious practice) will be protected.

The Religious Freedom Restoration Act (RFRA), passed by a nearly unanimous Congress in 1993, was a legislative response to a 1990 Supreme Court ruling. The court had held that it would no longer require proof of a "compelling government interest" to justify generally neutral laws that limit or burden free exercise of religion, a judicial test in use for 30 years. In one incident after the ruling (but before RFRA), Catholic teaching hospitals in Maryland lost accreditation when they refused to perform abortions.

LAWS MAY BE NEUTRAL but religious practice—whether expressed in ritual or service—rarely is. A Sikh’s turban, a Muslim’s midday prayers, a Jew’s dietary restrictions, a refusal to put an orange warning sign on an Amish buggy: an outsider might dismiss these as mere custom, but to adherents they are expressions of ultimate belief and concern. RFRA, supporters say, gave religious people negotiating leverage when officials refused to consider possibilities for accommodation.

There is much agreement on the importance of such accommodations, and that’s why an unusually broad coalition of religious and secular groups came together to help pass RFRA. The same coalition—which includes Muslim, Jewish, Sikh, Native American, and diverse Christian representatives, as well as the American Civil Liberties Union—is now strategizing on what can be done now that it’s been overturned.

Would the best solution be a constitutional amendment that would prevent government from prohibiting exercise of religion, and from burdening it unless a compelling state interest is at stake? That might be the most comprehensive answer. But many are concerned that in Congress a free exercise amendment might be joined with troublesome "fixes" of the establishment clause. The NCC’s Thomas said, "We just don’t know what we would get if we went down [the amendment] road. It would be decades of litigation before we knew what we’d done."

Instead, several of the religious groups are urging various federal legislative strategies to achieve, piece by piece, protection for religious practices that will survive a Supreme Court challenge. Another strategy is getting "mini-RFRAs" passed at the state level, although that could result in a wide variance of protections across the country.

Prisoners, for example, have been exempted from the protections offered by some state RFRAs, with the "frivolous" lawsuits by prisoners under the federal RFRA being cited as a major reason. Prison advocacy groups such as Prison Fellowship counter that the number of such lawsuits was exaggerated, and the spiritual and rehabilitation benefits of religious activity in prisons outweighed the inconvenience. "My Lord said he especially identifies with those like the 1.1 million Americans who are in prison," said Steve McFarland of the Christian Legal Society, a largely evangelical national association of lawyers and law students. That should be reason enough for Christians to advocate for religious practice protections for prisoners, who obviously have little political clout of their own.

People of faith need to advocate for full protection of religion, not only for ourselves but for groups of believers who—due to small size or unpopularity—may not be heard. And through worship and service we must boldly witness to the one to whom we give our primary allegiance—and humbly, persistently explain why to those who might not understand.

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