What do a Jewish home synagogue, a Baptist minister, and a federal prisoner have in common? All among the first to be hurt by the demise of the federal Religious Freedom Restoration Act (RFRA). Each of their stories shows why Americans must work to restore free exercise protections, which have been decimated in the wake of the U.S. Supreme Court's Boerne decision. Fortunately, attempts are being made, both at federal and state levels, to put some teeth back into free exercise protections. Their success depends, ultimately, upon the value Americans truly place on religious liberty.

Three Victims

Last summer some orthodox Jews in Los Angeles attempted to get a zoning variance for a religious meetings in a rented house along a residential area. That house, or "shul," accommodated 10 to 15 people during the week, 50 to 60 on Sabbath and other Jewish holidays. Orthodox Jews must walk to services on Sabbath because their religion does not permit them to use cars on the seventh day. Thus neighborhoods without shuls are effectively off-limits to orthodox Jews.

When a neighbor complained, the congregation requested a special use permit from the Los Angeles City Council. Opponents of the permit argued to the council that "if you permit this illegal use how do you rationally prevent Muslims from setting up their things, Hindus from having their temples? Once you open up the door, you will ruin a beautiful asset."

The Los Angeles City Council unanimously rejected the request for the special use permit, though a short time later the same council approved the application of a "gay sex club" for a variance to locate within 500 feet of another residential area. How could the council knock down the right of 13 or 14 people to pray together, but allow a sex club to exist near residential neighborhood?

In one of the more compelling stories to emerge from the post-RFRA world, California Baptist minister Wiley Drake was convicted of housing the homeless in violation of city zoning regulations. His church gives groceries to hundreds of people every month and allows dozens of homeless to sleep in tents and an enclosed patio at First Southern Baptist Church in Buenas Park, California. Pastor Drake was found guilty of four criminal misdemeanor counts, carrying a maximum six-month jail sentence and a $1,000 fine each. Pastor Drake has said that he will appeal the verdict and continue his ministry.

The demise of RFRA has meant a much more restricted religious environment for prisoners also. David Kenton* is an inmate at the Plainfield Correctional Facility in Indiana. A Seventh-day Adventist, he abstains from work on Friday evenings and Saturdays. David was ordered by the prison authorities to carry out 30 hours of extra duty, some on Sabbath. When Kenton said that he was willing to do the extra work, but not on the seventh day, he was disciplined for insubordination. Kenton went to federal court, claiming rights under the First Amendment and the Religious Freedom Restoration Act. The court ruled that the First Amendment did not protect David because the extra work was rationally related to a legitimate interest. The court wrote that if it were "to hold [Kenton's] right to assert his religious beliefs outweighed the rights of the penal system to maintain order and balance it is quite possible other prisoners would convert to Judaism or the Adventist following to avoid Sabbath work duty."

Because RFRA was no longer valid law by the time the court made its decision, it did not have to deal further with Kenton's claim. Had RFRA been in effect, the outcome could have been different. (Other prisoners affected by the demise of RFRA were a Muslim man who protested in vain against being searched by a female prison officer on the grounds that his religion forbade him from being touched by any woman except his wife, and practitioners of Native American religions who were denied access to sweat lodge ceremonies after RFRA was overturned.)

From Smith to Boerne

What has brought these straits in religious liberty? The immediate cause has been the U.S. Supreme Court's reinterpreting First Amendment free exercise protections. Prior to 1990, the First Amendment was interpreted to give protection to religious belief and conduct in all cases in which such belief or conduct was not outweighed by some compelling government interest in protecting the life, liberty, or property of other citizens.

Then in the 1990 case Employment Division v. Smith the Court decided that the First Amendment should provide protection only if a law or regulation was explicitly aimed at some religious group or practice. Under this reasoning, laws preventing orthodox Jews from wearing headgear on government property would be unconstitutional, while laws forbidding all people from wearing headgear on govern-ment property would, in fact, be constitutional. Under the Smith rationale, then, orthodox Jews wearing their headgear would have to violate either their consciences or the law if they wanted to walk on government property. The Court did say that if a religious claim was brought in combination with some other kind of right, such as speech or parenting rights, that it would give the claim the benefit of the old First Amendment interpretation. This has become known as the "hybrid rights" exception to the Smith standard.

In response to this drastic weakening of protections, a national "free exercise" coalition of uncommon bedfellows--more than 60 Jewish, Muslim, Christian, and secular civil rights groups- urged the passage of a federal statute restoring the old standard. With unlikely allies such as Beverly LaHaye, Lou Sheldon, the ACLU, and the People for the American Way all supporting it, the Religious Freedom Restoration Act, or RFRA, was passed by a virtually unanimous Congress in 1993.

But in June of 1997 the Court declared in Boerne v. Flores that RFRA was an unconstitutional exercise of Congressional power, and that Congress had no business protecting the religious liberty of it citizens beyond what was required by the Supreme Court's interpretation. (There is still some possibility that while RFRA is invalid in regard to the 50 states, the federal government may still be bound by it).

Fighting Back

In response to Boerne, the free exercise coalition is proceeding on two fronts: in Washington, D.C., and in each of the state capitals.

First, it is drafting a replacement for RFRA that takes into account the concerns raised by the Supreme Court in Boerne. RFRA II is nearing completion. The drafters have based its protection for religious activities primarily on the commerce clause, whereas the original RFRA was premised on the Fourteenth Amendment to the Constitution. Historically, the Supreme Court has read very broadly Congress's authority to regulate under the commerce clause. Because of this, the Congress used this portion of the Constitution as the basis of the civil rights acts of the 1960s, which have generally been upheld as constitutional.

RFRA II would also codify the sparse remaining protection left under the Smith decision, including the hybrid rights exception. It would create a presumption of $5,000 in damages whenever a person could prove a violation of his or her religious rights. And it explicitly leaves untouched the protections and requirements of the establishment clause of the First Amendment. This latter point was critical to keeping the free exercise coalition intact.

RFRA II faces definite challenges. It is less comprehensive in its protections than the original RFRA. This is primarily because it can protect only religious acts or services that arguably impact or affect interstate commerce. The act presumes that religious groups with a budget of more than $100,000 or who use property worth in excess of $100,000 affect interstate commerce. It also attempts to extend its protections to religious activities that use either property or services of a kind regularly bought or sold in interstate commerce.

Under this standard, a large church built from out-of-state lumber and that uses books and papers printed out-of-state would qualify; but the small home church with photocopied song sheets may not. It all depends on whether their activities or purchases have a "substantial effect" on interstate commerce, not likely for a small church or religious group. It's hard to see how individual or small group religious conduct, such as voluntary school prayer groups or workplace lunch Bible study groups, would be protected.

Often it is this form of individual expression that needs the most protection.

Others may find it disturbing to define religious activities as "interstate commerce." Is religion really commerce? While drafters of the bill explicitly state that the act's definitions of interstate commerce are for purposes of "this act only," how can that limitation be ensured? Once religion can be "protected" as interstate commerce, could it also be "regulated" as interstate commerce? At this point, nobody knows.

Will the benefits to religious activity provided by RFRA II outweigh the risks? Because of these concerns, and because of the limitations of the proposed RFRA II, the coalition is also turning to the states as the new defenders of religious freedom.

State RFRAs

One reason the Court gave for its ruling in Boerne was that RFRA infringed on the "traditional prerogative and general authority" of the states. The free exercise coalition took the Court at its word and is seeking to bring the "traditional prerogative and general authority" of the states to bear on the problem of protecting religious freedom.

There are two ways in which this can happen. The simplest is for a state supreme court to interpret its state constitution as providing the higher level of protection that the federal Constitution used to provide. Some states, seven at last count, have done this; 14 others seem to be headed in this direction. The problem, of course, is that a state supreme court can also interpret its constitution to provide the protection only

provided by the federal Constitution as now interpreted, or even less. This lower level of protection has been done by two states and the District of Columbia, with another four moving this way. The majority of the states have not decided what level of protection to provide.

In those states not providing suitable protection, or in those where the level of protection is undecided, the other approach is to pass a state equivalent of the Religious Freedom Restoration Act. Known as state RFRAs, these bills have been introduced in 14 state legislatures. The free exercise coalition is actively involved in shepherding these bills through the legislative process and trying to prevent any debilitating amendment or exemptions from being added.

In evaluating state RFRAs, the coalition is concerned with three basic issues. The first is that it be understood, and codified, that religious freedom is for all. Efforts are made in many states to exclude or exempt prisoners from the coverage of the protective acts, even though such exemptions both dehumanize prisoners, who most need spiritual attention, and turn religious freedom from a human right into a state policy. If prisoners are exempted today, who will be tomorrow? (See "Rethinking Prisoner RFRA Exemptions" article.)

The second concern is that a state RFRA carefully codify the compelling state interest test abandoned by the Supreme Court. This test should require that before the government can place a "substantial burden" on religion, even unintentionally, the state must prove that it has a compelling reason--such as public health or safety--to do so. Further, the state should prove that it has used the least restrictive method reasonably possible to achieve its compelling end.

Because some state courts have evaded the protections of this standard by narrowly defining religion, the act should define religion as including conduct that is "motivated by religious beliefs or convictions." Thus, while renting an apartment is not a typically "religious" act, a landlord's decision not to rent to an unmarried couple because of the landlord's religious convictions should be viewed as religiously motivated conduct.

Finally, the coalition has agreed that these state RFRAs should contain no extraneous legislative initiative to fix other "problems" in church/state law. These would include changes to the establishment clause, public funding of parochial schools, or the introduction of prayer services into public schools. The coalition is divided on these issues, and any attempt to marry these to the RFRA efforts would result in a splintering, making it much less likely that the bill would pass.

Reconstruction

Unless something is done to reconstruct free exercise protection, stories like those of the Orthodox Jews in Los Angeles, of Baptist minster Wiley Drake, and Adventist prisoner David Kenton will multiply. America can do better than this. Even if most states pass RFRAs, however, religious liberty will be reduced to a patchwork quilt of varying levels of protection. On a positive note, the need for state and local involvement in protecting religious liberty is awakening citizens across the country to the importance of this precious legacy.

There is an irony in the movement from the state level to protect religious liberty, because it was with the states, such as Rhode Island and Virginia, where it all began. The first state struggle for religious liberty produced some of the most elevated and best articulated expressions of religious freedom: Madison's "Memorial and Remonstrance" and Jefferson's "Virginia Statute of Religious Freedom." One can only hope that the second state struggle for religious freedom will produce not just similar expressions, but the positive rights embodied in those expression as well.

*David Kenton is a pseudonym used to protect the identity of the individual in this article.

Nick Miller is an attorney and executive director of the Council on Religious Freedom, a nonprofit educational and advocacy organization based in the Washington, D.C., area.


Article Author: Nicholas P. Miller

Nicholas Miller, Ph.D., is an attorney and associate professor of church history at Andrews University, Berrien Springs, Michigan. He is the author of the The Religious Roots of the First Amendment (New York: Oxford University Press, 2012), which more fully develops the theme of this article.