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Quakers and the Free Exercise of Religion

The RFRA Decision
By Florence Kimbal

The First Amendment to the Constitution states, in part, that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The amendment thus provides two important guarantees: Congress is not to pass legislation that would establish religion (the "establishment clause") and Congress is not to pass laws that would bar people from freely exercising their religious beliefs (the "free exerse clause").

The free exercise clause is at the center of the recent Supreme Court decision. Sometimes, free exercise conflicts with governmental interests. When this happens, the governmental body must balance the interests of the government with the individual's right to free exercise of religion. Over the years, a legal standard, known as the "compelling interest" test, evolved. This test says that if government burdens the free exercise of sincerely held religious beliefs, government must demonstrate that it is acting to advance a "compelling state interest" (such as public health or safety) and that the course of action which the government is following is the least restrictive (or burdensome) to religion.

The compelling interest test generally guided court decisions until 1990 when the U.S. Supreme Court issued a decision known as Employment Division v. Smith. In the Smith decision, the Court ruled that the compelling interest test would no longer be applied so long as the law in question was not specically aimed at limiting the free exercise of religion. In the first three years following Smith, more than 50 cases involving free exercise were decided against religious groups and individuals.

For example, when Hmong parents objected that an autopsy on their son (performed pursuant to a generally-applicable state law) would violate their religious beliefs, a Federal District Court ruled that the free exercise clause was not an issue. When a church objected to the application of municipal zoning laws to prevent the church from conducting services in an area zoned for commercial uses (an area in which secular not-for-profit organizations were permitted), a Court of Appeals ruled that the case raised no free exercise concerns.

 Congress and a broad-based coalition of religious and secular organizations (which included the Friends Committee on National Legislation) recognized the problem and responded. As a result of the joint effort, Congress passed the Religious Freedom Restoration Act of 1993 (RFRA).

 RFRA restored the broad application of the compelling interest test and provided strong protection for persons whose religious exercise was burdened by government.

Two years ago, a challenge to the constitutionality of RFRA began wending its way through the courts in a case known as City of Boerne v. Flores. The legal process ended on June 25, 1997, when the U.S. Supreme Court, in a 6-3 decision, struck down RFRA. In writing for the majority, Justice Kennedy noted that, in passing RFRA, Congress had exceeded its authority under Section 5 of the 14th Amendment (the Constitutional provision by which RFRA was applied to state and local governments).

Where to from here?

Both the House and the Senate Judiciary Committees are holding hearings on the City of Boerne v. Flores decision in order to explore possible legislative remedies. One legislative approach could involve recodifying RFRA so that it would apply to the federal government. Another approach would be to recodify RFRA so that it would apply to state and local govements based on Congress' power to spend federal money or to regulate commerce.

 Each state could also pass its own RFRA-type legislation. The main drawback to this approach is that this would likely create a patchwork of religious protection which would vary from state to state.

Some are pursuing a constitutional amendment strategy. Such an approach raises several problems. First, it requires many years for completion. Second, wording is likely to be highly controversial. Should the amendment deal only with free exercise or should it deal with both free exercise and establishment? Should free exercise be guaranteed to all or could there be exemptions, such as for prisoners, public school children, or historic preservation issues? Many who supported RFRA contend that, unless everyone's religious freedom is secure, anyone is vulnerable.

Prior to the Supreme Court's decision, Rep. Istook (OK) had already introduced a Religious Freedom Amendment which was designed primarily to address establishment clause issues. Now, Rep. Istook has indicated his desire to incorporate free exercise issues into his amendment. The proposed amendment is worded in a way which would effectively allow the religion with the largest number of adherents in a community to control such things as the wording of prayers said in schools and at public gatherings or the selection of religious symbols to be displayed on public property. This could substantially diminish religious freedom for persons of minority faiths in such communities.

The amendment also opens the door to the use of public funds to support parochial schools and programs. Such an effort would be vigorously opposed by many who supported RFRA and who would be willing to support an amendment limited to incorporating RFRA-type language into the Constitution.

FCNL will continue to monitor this issue. At this time, we encourage readers to contact Members of Congress, to express concern for religious freedom and to urge them to explore all legislative remedies before considering the Constitional amendment route. FCNL recommends that any amendment which would compromise the strict separation of church and state (including the one proposed by Rep. Istook) be opposed.

Florence Kimball is legislative education secretary for FCNL, 245 Second Street, NE, Washington DC 20002; (202) 547-6000.

Friends Continue RFRA Challenges

Rosa Packard, of New York Yearly Meeting, and Priscilla Adams, of Philadelphia Yearly Meeting, intend to continue RFRA-based legal challenges to IRS penalties for their conscientious refusal to pay military taxes. They argue that the Boerne decision only overturns the application of RFRA in non-Federal venues. Priscilla Adams' case will come before tax court sometime in the fall, and Rosa Packard is preparing her case for Federal District Court. Rosa Packard says, "Both Priscilla and I believe that under the Religious Freedom Restoration Act, the government should not penalize conscientious objectors to paying taxes for war for exercising their religious beliefs. We also ask that the government grant a reasonable alternative to the generally applicable tax law requiring citizens to pay taxes for war. The Peace Tax Fund Bill would fulfill this request."

Copyright 1997, Friends United Meeting

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