A blow for religious freedom

November 24, 1993|By Edward McGlynn Gaffney Jr.

IN THIS Thanksgiving season, Americans of every religious faith can be grateful that their free exercise of religion is suddenly more secure than when the Supreme Court assailed the first of our civil liberties three years ago.

Last week President Clinton signed the Religious Freedom Restoration Act, or RFRA, legislation designed to set much stronger limits on governmental power than the Supreme Court thought necessary in a 1990 case known as Employment Division v. Smith.

In that case, five justices ruled that America could "no longer afford the luxury" of giving any special consideration to religious conscience when it comes into conflict with a generally applicable rule of law.

The court indicated that if religious claimants wanted protection for their convictions, they should turn to the political branches for legislative exemptions, not to the courts for constitutional protection. A better view of the American heritage was stated in the Williamsburg Charter: "Religious liberty finally depends on neither the favors of the state and its officials nor the vagaries of tyrants or majorities. Religious liberty in a democracy is a right that may not be submitted to vote and depends on the outcome of no election. A society is only as just and free as it is respectful of this right, especially toward the beliefs of its smallest minorities and least popular communities."

The court's advice was next to useless for religious minorities who lack political clout. Imagine the Jehovah's Witnesses going begging to the very legislatures in the 1940s that were doing their best to put them out of business, or at least to drive them out of the state.

In this instance, though, religious communities and civil libertarians took the court at its word, mounting one of the most effective political coalitions of divergent groups in recent history. What brought the National Association of Evangelicals together with the American Civil Liberties Union; Beverly LeHaye's Concerned Women for America together with Norman Lear's People for the American Way? They were intent on one thing: restoring religious freedom to its rightful place among our cherished freedoms.

For over three years this group persisted in urging Congress to reinstate the two standards that used to govern free-exercise litigation before the Smith case. According to those two standards, the Constitution does not permit the government to burden religious freedom unless (1) it is required because of a supreme public necessity, not an ordinary public interest, and (2) there is no less restrictive alternative to the burden on religious freedom.

Even under these two standards, the courts had been letting government attorneys win a lot more cases than they should have in a society that holds religious freedom in high regard. But after the Smith case, with these standards abandoned by the court, religious freedom suffered grievous wounds in more than 60 cases.

Churches were zoned out of large tracts of new developments for no better reason than the higher profit that flows from other uses of the land. Worse yet, churches already in existence for decades were forced to comply with no-growth rules by zoning authorities. Vietnamese Hmongs and Orthodox Jews were subjected to needless autopsies in violation of their centuries-old religious beliefs about the respect due the human body after death. A Catholic teaching hospital lost its accreditation for refusing to train nurses how to perform abortions.

With tragic cases like this to report to Congress, the coalition prevailed, and RFRA has now restored the first of our civil liberties, religious freedom, to the privileged place it should occupy. Religious freedom, in fact, is the foundation of all other rights and freedoms secured by the Constitution. A government that is limited as to matters of conscience is limited indeed. A government that may not impose religious conformity may not impose a political orthodoxy either. To quote the Williamsburg Charter again: "This basic civil liberty is clearly acknowledged in the Declaration of Independence and is ineradicable from the long tradition of rights and liberties from which the Revolution sprang."

Although I am still thankful first and foremost to God on this Thanksgiving Day, I am equally willing this year to include the president and the Congress among those to whom we should be grateful. For they have put religious freedom back where it belongs, at the top of the list of all of our freedoms.

Edward McGlynn Gaffney Jr. is the dean of the Valparaiso University School of Law. He testified on behalf of RFRA in Congress.

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