ROANOKE TIMES
Copyright (c) 1997, Roanoke Times
DATE: Friday, February 21, 1997 TAG: 9702210051
SECTION: EDITORIAL PAGE: A-6 EDITION: METRO
BEWARE legislation that everybody likes. The absence of opposition implies lack of critical review, which raises the odds the measure will turn out to be a clunker. A case in point is the grandiloquently named Religious Freedom Restoration Act of 1993, the subject this week of oral argument in the U.S. Supreme Court.
The act was opposed by virtually no one. Actively supporting it (and defending it now) was a broad coalition of evangelical, Catholic, mainline Protestant, Jewish and Islamic groups. It won unanimous approval in the U.S. House of Representatives, overwhelming support in the U.S. Senate and an enthusiastic signing by President Clinton.
There's a problem, though. In seeking to clarify the meaning of the First Amendment, the act ignores the 10th Amendment and relies on a dubious interpretation of the 14th Amendment. The result is a mess, and a law that is probably unconstitutional.
The story begins in 1990, when the U.S. Supreme Court upheld the state of Oregon's ban on the use of illegal peyote in the rituals of some American Indian religions. Before then, the court had said the First Amendment means governments cannot "substantially burden" the free exercise of religion unless the burden is shown to be "the least restrictive means of furthering [a] compelling governmental interest." But in the 1990 opinion, written by Justice Antonin Scalia, the court said that if a general law or policy has only an "incidental effect" on the free exercise of religion, exemptions need not be created for religious activities.
The act of 1993 purported simply to restore the court's pre-1990 interpretation of the First Amendment's "free exercise" clause. But in some ways the act goes further: Under it, suits are being brought in federal court - for example, by a prison inmate claiming that membership in the Church of Marijuana entitles him to partake of the weed - that would have been found frivolous even under the court's earlier standard.
In other ways, the act isn't as strong. It perversely increases government entanglement with religion by forcing more official judgments on religious legitimacy as more demands for special treatment arise. And the policy it outlines isn't a constitutional right, but merely a statutory addition to a constitutional right.
Enter now the 10th Amendment, the one that reserves to states those powers not delegated to the United States. If Congress had limited the act's reach only to activities within the federal domain - military installations, say, or interstate commerce - the 10th would be irrelevant. But the act seeks to apply congressional policy to all sorts of matters traditionally within the domain of state and local governments. The case now before the Supreme Court, for example, involves a church's claim that the act has made the church exempt from a town zoning ordinance.
Ah, say the act's defenders, but the 10th Amendment is trumped by the 14th Amendment's empowerment of Congress "to enforce, by appropriate legislation" such basic rights as "equal protection of the law." This, they say, provides the constitutional basis for applying the act to state and local matters. And so it might - if the state laws and policies under attack were discriminatory. It is the congressional act, however, that flouts the "equal protection" principle, by saying religious groups should be exempt from laws that everybody else must obey.
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