Religious Freedom Act is unconstitutional

March 13, 1998|By David A. Doheny and Harrison B. Wetherill

WHEN James Madison and company wrote the Bill of Rights, they laid down our two fundamental principles of law concerning religion in the First Amendment: There shall be "no law respecting the establishment of religion or prohibiting the free exercise thereof."

These key precepts governing church and state relations have been zealously guarded by the courts for 200 years. Courts have developed a body of case law covering almost every conceivable exercise of religious beliefs, from prayer in school and saluting the flag to animal sacrifice.

While a wide diversity of opinion on these issues remains, two cardinal principles are clear -- there can be neither legal discrimination against, nor favoritism toward, any form of religious beliefs.

Why then, is the Maryland legislature considering a sweeping bill entitled "An Act Concerning Religious Freedom"?

The reason dates to 1990, when the U.S. Supreme Court, in Smith vs. Oregon, held that Oregon could prohibit the use of the drug peyote even though some of its citizens claimed that the ingestion of peyote was required by their religious beliefs.

The Supreme Court held that because Oregon's drug laws were neutral laws of general application, they could not be deemed to violate the constitutional guarantee of free exercise of religion.

The same legal principle has been applied to claims that churches should be exempt from taxes on the sale of their publications or laws relating to employment, health and safety, zoning and land-use regulation.

A broad coalition of religious interests reacted with alarm to the decision in Oregon vs. Smith, claiming that governments could now more easily pass laws burdening religion.

In 1993, they persuaded Congress to adopt the sweeping Religious Freedom Restoration Act, even though they were not able to cite a single instance of government discrimination against religion in the past 40 years. The act purported to restore the state of federal law before Smith vs. Oregon.

Last year, the Supreme Court struck down that act on constitutional grounds in city of Boerne vs. Flores. In that case, St. Peter's Catholic Church in Boerne, Texas, near San Antonio, applied for a permit to demolish its historic church building to build a larger sanctuary.

Because St. Peter's was covered by the city's historic landmark ordinance, the city tried to persuade the church to compromise by preserving the essence of the historic church as part of the new church complex.

St. Peter's rejected any compromise and went to court, claiming that unless it was permitted to demolish its historic church, its rights under the Religious Freedom Restoration Act would be violated.

The case reached the Supreme Court, which held the law to be unconstitutional as a legislative interference with powers reserved to the courts.

In so ruling, the court noted that the law "is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. It appears, instead, to attempt a substantive change in constitutional protections. Sweeping coverage ensures its intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matters. Any law is subject to challenge at any time by any individual who alleges a substantial burden on his or her free exercise of religion."

The Supreme Court also stated that "the substantial costs [the law] exacts, both in practical terms of imposing a heavy litigation burden on the states and in terms of curtailing the general regulatory power, far exceed any pattern or practice of unconstitutional conduct under the Free Exercise Clause."

The proposed Maryland version of this law is identical in all material respects to its invalidated federal counterpart. Therefore, the same legal and policy objections exist to its adoption.

For example, the Maryland bill would apply retroactively to all existing laws, statutes and administrative actions throughout Maryland. It is an open invitation to a flood of litigation, by providing not only injunctive relief, but also monetary damages, plus attorneys' fees and court costs against the government, for persons claiming violations.

Together the Constitution, the Maryland Declaration of Rights and dozens of federal and state cases provide the broadest protection of religious beliefs and practices, consistent with the equally valid principle of the separation of church and state.

No convincing evidence exists of a need for the sweeping bill proposed in Annapolis or anything resembling its current form.

As the adage so aptly advises us, "If it ain't broke, don't fix it."

David A. Doheny of Bethesda and Harrison B. Wetherill Jr. of Annapolis are Maryland lawyers.

Pub Date: 3/13/98

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