Legal experts say the Supreme Court is poised on the brink of major changes in its interpretation of religious freedom.
For two years, Cornerstone Bible Church met in a rented storefront in downtown Hastings, Minnesota. Because the church couldn’t afford to build at another site, the 60 members of the evangelical congregation thought they had found the answer to their needs in a vacant theater across the street. But when Cornerstone attempted in 1986 to purchase the property, they found not a new place to worship, but a long-running legal battle with implications that reached to the U.S. Supreme Court.
The City of Hastings not only denied the purchase request, but informed Cornerstone that its current rental site was in violation of a Hastings ordinance forbidding churches to locate in commercial and industrial zones. (The church was previously unaware of the ordinance.) Over the next several years, the city council denied several Cornerstone petitions for rezoning. Finally, last year, the city planner served Cornerstone a final eviction notice. Unable to find affordable, appropriate space to rent in a residential area, Cornerstone sued the city, charging that the ordinance placed a burden on the church’s ability to practice its faith.
The federal district court ruled against the church. Citing the Supreme Court’s 1990 decision in Oregon Employment Division v. Smith, the court said the government did not have to accommodate any “incidental” burdens on religion that come from a “reasonable” law. In its opinion, the federal court noted that according to the legal philosophy articulated in Smith, the rights of the church could be no more protected than those of an adult movie theater or adult bookstore. Cornerstone is currently appealing the decision.
“In the past, I can’t imagine a church losing that case,” says Oliver Thomas, general counsel for the Baptist Joint Committee (BJC), a Washington, D.C.-based public-policy lobby. But now, say Thomas and virtually all of his colleagues in the church/state arena, the courts have moved into uncharted waters.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
Confusion On The Court
As the Supreme Court reconvenes this week for its 1991–92 session, religion is uppermost on the minds of many observers. Religious groups from across the theological and political spectrum charge that last year’s Smith decision turned decades of interpretation of the free-exercise clause on its head. And the Court is scheduled this term to hear a high-school commencement-prayer case that threatens to bring major changes in establishment-clause interpretation as well.
Ironically, 1991 marks the bicentennial of the Bill of Rights and its first guarantee: religious freedom. Yet, the celebration among many religious groups has been rather somber.
“In the space of less than two years, the Court will have potentially changed the entire face of religious liberty in America,” says Steven McFarland, director of the Christian Legal Society’s (CLS) Center for Law and Religious Freedom. “Many of us are celebrating the bicentennial and at the same time wondering what is going to be left of those guarantees after two years of a conservative Court.”
During a recent speech to constitutional scholars, Justice Sandra Day O’Connor did little to allay concerns about where the justices are headed on church/state issues. “Conflict in this area seems unavoidable,” the justice conceded. “Given the division among members of the Court over the proper interpretation of the religion clauses, I would say existing doctrine in this area may be said to be quite fragile.”
FREE EXERCISE
When the high court handed down the Smith decision, First Amendment experts predicted it would “gut” the free-exercise clause (CT, July 16, 1990, p. 48). In deciding that case, which involved the use of the drug peyote during Native American religious ceremonies, the Court threw out the standard of judgment it established in 1963 (see Sherbert in “Key Cases Shaping Religious Liberty,” p. 40). The Court held that nothing in the Constitution prevents states from passing “generally applicable” laws that may have an “incidental” effect of conflicting with religion. And, wrote Justice Antonin Scalia, government need not show a “compelling interest” when interfering with religious practices that clash with “reasonable” laws.
Some commentators criticized religious groups for exaggerating the dangers of Smith, but church/state lawyers point to a growing list of cases like the one involving Cornerstone Bible Church as evidence that their predictions are coming to pass. A memo compiled by the BJC cites 20 lower-court decisions that have relied on the Smith decision. Of those, 16 went against the religious groups. And of the 4 that favored religious groups, 3 used state constitutional provisions to sidestep Smith. Among the decisions:
• A Rhode Island medical examiner performed an autopsy on a 22-year-old Laotian immigrant, despite the wishes of his family, whose Hmong religion holds that autopsies prevent the spirit from being set free after death. Similarly, a Michigan medical examiner ordered an autopsy on a man killed in an automobile accident, despite the fact that his Jewish religion prohibits such a procedure.
• An appeals court rejected the Salvation Army’s argument that it should be exempt from licensing under the New Jersey Rooming and Boarding House Act.
• An Iowa federal court ruled that Hope Evangelical Lutheran Church could be taxed for consumer items such as crosses, hymnals, and tracts purchased from out-of-state suppliers.
In addition, attorneys say that because of Smith, religious believers are facing a number of increasingly hostile government regulations. For example, the Occupational Safety and Health Administration has lifted exemptions given for 15 years to Old Order Amish and Sikhs who refuse for religious reasons to wear hard hats at construction sites. And in Denver, officials have refused to offer an alternative pharmaceutical licensing test for a Seventh-day Adventist. Currently, the boards are given only on Saturdays, his sabbath.
University of Texas law professor Douglas Laycock looks at such examples with alarm, and puts it bluntly: “There is no longer any federal constitutional protection for religious practices.”
Washing Its Hands
The main problem, say church/state experts, is that in Smith the Court defers to state and federal legislatures, leaving protection of religious liberty in the hands of a majority vote. “The Court, like Pontius Pilate of old, is washing its hands of the great moral and legal issues of the day and throwing them back to the shouting mobs in the streets,” Thomas says.
Such a policy has greatest impact on religious minorities who have little popular following or political clout. But, says Mitchell Tyner, legal counsel for the General Conference of Seventh-day Adventists (GCSDA), “NO one is safe unless we are all safe.”
Forest Montgomery, general counsel for the National Association of Evangelicals, believes it is only a matter of time before all religions feel the impact of Smith. For example, he speculates that if Smith is taken to its “illogical” conclusion, denominations that do not believe in ordaining women may have no exemption from gender antidiscrimination laws. Likewise, churches that do not want to hire homosexuals may have no protection from laws prohibiting discrimination on the basis of sexual orientation.
“We are now at a point in our history where the courts can rewrite the meaning of the First Amendment and sharply curb the freedoms that are available,” says Edward Gaffney of the Valparaiso University School of Law. “And what truly distresses me is that they don’t think there is anything wrong with treating religious freedom as though it were any other part of the democratic process.”
In the eyes of many church/state lawyers, the best solution is passage of the Religious Freedom Restoration Act (RFRA), a bill introduced in Congress last summer that would legislatively establish tough protections for religious liberty. However, disagreements over whether the bill would promote abortion rights have left it stalled (CT, June 24, 1991, p. 52).
ESTABLISHMENT
With the new Court term, church/state observers have turned their attention to the establishment clause. But the unity of opinion that religious groups found in opposing Smith disappears abruptly in considering a prominent religion case before the Court, Lee v. Weisman. In Lee, the justices will consider whether a rabbi’s invocation and benediction at a Rhode Island high-school graduation was an unconstitutional establishment of religion. Two lower courts have ruled the prayers were inappropriate because they mentioned “God.” Said one judge, “With one change—God would be left out—the Establishment Clause would not be implicated.”
Adding further significance to the case, the Justice Department has asked the Court to use Lee to overhaul the standard it has used for 20 years to determine what is the establishment of religion that is prohibited by the Constitution. Under the three-part Lemon test, a government act is constitutionally allowable as long as (1) it has a secular purpose, (2) its primary effect neither advances nor inhibits religion, and (3) it avoids excessive entanglement between church and state (see “Key Cases”).
Groups that advocate a strong wall of separation between church and state generally have been pleased with Lemon. But groups who favor more government accommodation charge that the Lemon test has resulted in government hostility toward religion. “Lower courts and bureaucrats have read it to mean that we must obliterate every reference to God in the marketplace,” says Michael Whitehead, counsel for the Southern Baptist Christian Life Commission (CLC).
New Tests
Still, even those who don’t like Lemon cannot agree on what should replace it. The Justice Department is proposing a “coercion test” that would allow more government accommodation of religion as long as no one is coerced into participating and there is no threat of the “establishment of an official church.” A test proposed by the CLC would also exclude coercion, but draws the line at a government official leading religious activities and at government discriminating in favor of any one religious group or funding doctrinal teachings.
Another proposal comes from the Rutherford Institute, a religious-liberty law firm, which suggests an “equal accommodation test” where religion is treated on the same basis as every other institution and value system in society.
Meanwhile, more separation-minded groups, including the BJC, the GCSDA, and the National Council of Churches, have petitioned the Court to retain a principle of government neutrality toward religion. According to Laycock, who wrote the legal brief for the separationist groups, abandonment of that principle will hurt all religions. “Government itself will come to have an enormous effect on the content and style of worship,” Laycock says. “And in most places, what you are going to get is watered-down, least-common-denominator … boosterism prayer to God in support of the incumbent administration.”
BJC’S Thomas believes an easing of Lemon will open the door to new religious practices in public areas, particularly the public schools, including government funds for religious programs and released-time programs, as well as government-funded nondenominational worship services. He even foresees the possible reopening of the school-prayer rulings decided nearly 30 years ago.
The Rutherford Institute’s John Whitehead sees nothing wrong with that. “Considering what we have in society and the public schools today, with drugs and sex and suicide, can anyone convince me that giving part of the time to religion is going to do anything worse?”
While some experts fear a new establishment test could give mainstream religions unfair advantages over smaller groups, CLC’S Michael Whitehead argues that in establishment cases, majoritarianism isn’t so bad. “The problem in the past with these cases has been rule by minority, and sometimes an isolated minority of one or two … has been given the power to force you to keep silent about your religion.”
Future Battlefields
Observers agree that any changes in Lemon—whether perceived as good or bad—will result in an unprecedented round of litigation over public religious practices. In light of Smith, they say, litigation surrounding the free-exercise clause has already multiplied. And given the instability of the legal situation, every church/state case has the potential to grow in significance.
“There has to be strategy on what cases to take and what not to take,” says John Whitehead, “because if we take the wrong case, we’re going to get wiped out and set bad precedent.”
At the same time, many lawyers now urge that free-exercise cases should be argued on the basis of state constitutions rather than the First Amendment, because after Smith, the states may offer stronger protection of religion. But arguing cases on a state-by-state basis, says Thomas, will likely result in a “patchwork of protections.”
What concerns some religious-freedom experts even more is the apparent ignorance or indifference of most believers toward the issues involved. In the next few years, says CLS’s McFarland, key battles will be fought over the public schools, taxation and regulation of churches and religious groups, funding of religious social-service programs, and discrimination on the basis of religious beliefs.
Yet McFarland believes most religious people are unaware of the implications of the Court’s actions. “We have a complacent church that’s entrusting the safety of the flock to shepherds who believe it’s not really their job to protect the flock,” he says. “All is not well in the judiciary, and I think the church needs to wake up to that fact.”
By Kim A. Lawton.
