Soundoff…A Civil Right
Oliver S. Thomas May/June 2000
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To fit the meaning of the term, religious liberty must apply to all or it applies to none. It cannot be allowed just for Christians or any religious organization that the state may favor. It must be for everyone. Not just for Judeo-Christians. For everyone.
But ever since the Supreme Court's infamous 1990 decision in Employment Division v. Smith, the hallowed right to exercise one's faith-the nation's first freedom-has been moved to the back of the constitutional bus, as fabled attorney William Bently Ball once put it. In fact, some might say it's been moved off the bus altogether. What was once seen as a fundamental right, equal to freedom of speech and the press, is sometimes now largely a matter of legislative grace. The Smith decision jettisoned the longstanding rule that government justify any restrictions on the exercise of religion by showing an overriding public interest such as health or safety.
Thankfully, other institutions of government have responded admirably to the Supreme Court's crimped understanding of the rights of conscience. The lower courts have found exceptions to the Smith rule by using so-called hybrid claims (i.e., linking religious rights with other rights, such as a parent's right to control the upbringing of a child) and other constitutional provisions such as the speech clause. State courts in Massachusetts, Michigan, Maine, and Wisconsin have used their own constitutions to protect religious exercise. State legislatures in Connecticut, Rhode Island, Florida, Illinois, and South Carolina have passed protective statutes, and one state-Alabama-even used a ballot initiative to amend its own constitution.
Yet, as encouraging as these efforts to reinforce religious rights might be, they leave our nation with a patchwork of protection. It is at best a constitutional safety net shot full of holes.
Then in 1993 Congress responded to this crisis of conscience by passing the Religious Freedom Restoration Act. When he signed the act, which restored the traditional protections for religious exercise, President Clinton described it as one of the "proudest" moments of his presidency.
But the Supreme Court struck it down. Requiring state and local governments to make a serious effort to accommodate religion, said the Court, exceeds Congress's authority under the Fourteenth Amendment. This seems a curiously inconsistent view. Congress was able to give citizens more rights than the Supreme Court found for them under the Equal Protection Clause (remember the civil rights acts of the 1960s?) or in the Fourth Amendment (see federal wiretap statutes). But somehow the Court denies Congress the right to strengthen the religion clauses.
Even worse was the Court's suggestion that any attempt by Congress to legislate a broad remedy to the problem would encroach on the Court's turf. Separation of powers, the justices call it. That is, of course, an important constitutional doctrine. But is it really violated when Congress provides broader civil rights protection than would the Court?
For two years the Coalition for the Free Exercise of Religion worked with Congress, consulted with leading scholars, and negotiated with the Justice Department, to work out a statute that could pass constitutional muster. The result was the Religious Liberty Protection Act.
Then the politics changed.
On the right, Mike Farris of the Home School Legal Defense Association and an energetic group of followers decided that the commerce clause should not be used to protect religious liberty. Never mind that it's been used to protect everything else. And so they are lobbying to strip out those provisions that would protect missionary agencies, church publishing houses, theological seminaries, and most likely the parent denominations of thousands of local congregations spread across America.
On the left, the American Civil Liberties Union has decided that the Religious Liberty Protection Act (RLPA) poses a threat to gay rights.
Let me make clear that I support civil rights for all persons, including gays and lesbians. There is nothing Christian about discrimination. While religious organizations must be free to hire only those persons who conform to their religious teachings, secular businesses have no business inquiring into a person's race, religion, national origin, or sexual orientation.
But RLPA does not threaten civil rights. The compelling interest test contained in RLPA is the same test the ACLU supported in the Religious Freedom Restoration Act. There is nothing new here. What's more, not a single reported case has held that landlords or employers can avoid a gay rights law by protesting on the grounds of religion!
The only time a religious objection has been used successfully to challenge a civil rights law pertains to marital status. That's because states have undermined their claim of a compelling interest by doing precisely what they tell religious people they can't do-discriminate against the unmarried. As long as states deny dormitory space, death benefits, and the like to the unmarried for "secular" reasons, they can expect to lose cases against those who wish to engage in the same type of discrimination for religious reasons. And well they should. Most Americans-this writer included-still cling to the antiquated notion that there is a difference between cohabiting young people and the rights of racial or ethnic minorities. When it comes to behavior rather than immutable characteristics such as race and gender, one person's discrimination is another person's morality.
Religious liberty is a civil right. Shame on us if we refuse to protect it because some people-in this case, conservative Christians-exercise their religion in a way we don't happen to agree with. Still, political reality must be faced. In the United States Senate, where a single senator can block a bill until 60 of his colleagues vote him down, the opposition of the civil rights community coupled with the home schoolers and others from the right may prove insurmountable.
The Supreme Court has complicated matters further with a series of decisions that curtail Congress's power to legislate under the commerce clause. Unless the activity to be regulated has a substantial impact on interstate commerce, it may lie beyond Congress's regulatory reach. The upshot of this is that the religious community is scrambling for a solution.
Only a narrow opportunity for constructive action remains between the Scylla of political opposition and the Charybdis of the Supreme Court's shrinking sense of congressional power. The answer may lie with a narrow statute, targeted at one of the most problematic areas for religious organizations. Such a statute would be similar to two recent congressional enactments-the first aimed at protecting the right of Native Americans to use peyote, the second shielding the assets of churches from the creditors of bankrupt parishioners. A targeted statute is likely to pass constitutional muster and may not provoke the kind of political opposition likely with a broader bill.
Zoning and other land-use problems make up an area most in need of legislative protection. Congressional hearings have established that neutral and generally applicable zoning regulations are often used to keep particular religious groups out of a community. Consider the Mormon Church's failed effort to construct a temple in a Nashville suburb overrun with churches of other denominations. Or the Metropolitan Community Church that could not get a variance to build outside Dallas. Finally, there are the problems encountered by churches such as the Western Presbyterian Church of Washington, D.C.; it was taken to court when it began to operate a soup kitchen for the homeless. Seems that serving the poor was not considered a religious use by some D.C. authorities.
A targeted federal statute could change all that. Unless local authorities can show that a church's plans create substantial problems for a community such as excessive traffic, noise and the like, the church should be free to locate where it chooses. Likewise, historic landmarking can create nightmarish problems for a church. An increasing number of urban congregations have been told by local authorities that they must spend their dwindling resources on maintaining an architectural facade rather than on ministry. A targeted federal statute could provide some relief for such cases.
Obviously, a land-use statute is no panacea to the variety of problems religious persons and organizations face when trying to be faithful in a world that if not hostile is oftentimes indifferent. But it is a start.
The Reverend Oliver Thomas, Esq., is special counsel to the National Council of Churches and serves as cochair of the Coalition for the Free Exercise of Religion.